International Law

Introduction

Interstate system, international law, and common values for humanity

The world has a common right, superior to state rights, but it does not have a common authority, superior.
to the States, there are two essential points: (a) international law is the common law of humanity,
despite the political division of humanity into more states; (b) like every right, also the right
The international community needs an authority to manage it concretely, that is to respect it and make it happen.
to be respected by individuals, authority that in the absence of a world government can only be
that of the States. International law is therefore the set of legal norms that
regulate the coexistence of humanity through the governing authority of states and its function
It is essential to ensure a government for humanity in order to prevent it from falling into chaos.
The discourse on international law revolves around two complementary cornerstones: the norms and
the authority.
A) Authority: authority refers to the ability to exercise power perceived by the generality of
associated as legitimate and deserving of political obedience in everyday life and in events
more elementary. In the European origin 'State' model, authority essentially manifests itself
in the function of creation, authoritative assessment, and coercive enforcement of norms
Legal. The state authority is capable of enacting laws, issuing judgments, and collecting taxes.
and to act coercively on individuals. It is through the exercise of authority that a community
does not plunge into chaos, that is, does not fall into a state of war of all against all, and settles on a
average level of compliance with the behaviors that each member expects from all others; it is
thanks to the exercise of authority that the associates can be protected from other associates and, in the
Rule of law, by the same individuals who exercise government authority. Obedience to the norms.
common, on the part of all the associates, including those who perform authoritative functions, guides the
individual behavior and makes the behavior of others predictable, that is, coexistence and, ultimately, the
survival, mutual respect, and equal dignity of each member in the group. The authority
it must be not only effective, but also perceived as politically legitimate; the usurpation of
state institutions by a gang of unscrupulous politicians and the private use of
prerogative of state authority to oppress the population and persecute one or more groups,
through media control, repression, silencing, and annihilation of
opponents deprive the State of its legitimacy and turn into oppression and arbitrariness, which is
exactly what the State and the law are intended to avert. Force is not enough for there to be
authority, it is necessary that the force is recognized by the majority of the associates and kept distinct from the
private violence and legitimacy should not be understood only in the context of Western democracies,
even though there is undoubtedly a widespread tendency towards the form of government, and therefore the
legitimacy, Western liberal-democratic in nature. Thus defined the authority, in terms of
state model, it is clear that there is no universal authority common to humanity and superior to
States do not exist and there is no universal authority capable of commanding obedience from all human beings on the planet.
that it has the political legitimacy to carry out coercive acts on any person wherever they may be;
The United Nations is not a universal authority since it does not manage to (nor attempts to
to make the entire world population obey and even the great powers are not.
First of all today the United States, since not even the strongest state can make itself obeyed by (and thus

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to protect) all individuals of the planet. Yet the universal community, like every
communities need to fall into chaos and to coordinate mutual behaviors. The current world is
Yes, 'anarchic', or rather 'acephalous', meaning lacking a single authority among the states, but it is not chaotic.
It is common to speak of the 'Westphalian system', referring to the system of political division in Europe that
It stemmed from the treaties of the Peace of Westphalia that in 1648 ended the Thirty Years' War. The
the system was 'anti-hegemonic', in the sense that it operated among States that mutually recognized each other
"on equal terms", without any more recognized superior political authority. In the absence of an authority
the higher system was intended to operate in 'self-balance' based on mutual trust
and the responsibilities of the state units that composed it; the balance was not imposed and
controlled from above, but recreated and reshaped every moment by the States. It was a precarious balance,
but free where the states accepted the responsibility of maintaining an authority-free system
superior, so as to remain free, on the implicit assumption of contributing to the creation of legal norms
communities and to respect them. Each State exercised exclusive governing power over a portion of
land surface where borders increasingly took on characteristics of linearity and separation
in territories 'occupied' by the power of another State. Thus, two parallel 'orders' were formed and
complementary: the domestic law of each State, created by each State, created by each
territory, and international law, aimed at regulating the relations between sovereigns the task of their
government. The system was efficient because it was based on power that was initially exclusive, spatially
distributed, of government power, instead of on overlapping power: to the system of personal law
medieval, based on the lord's power over his people wherever they were, the system occurred
territorial, based rather on the lord's power over anyone who found themselves in "his" territory. The
The essential function of the system was to prevent the formation of a totalitarian hegemonic authority.
The current world system is therefore essentially an anti-hegemonic or 'self-balancing' system.
a system that rejects the idea of a universal Leviathan as a totalitarian world authority. The norms
legal norms are not imposed from above, but are imposed and respected by the members themselves in
view of system maintenance in its precariousness and freedom: if the system must maintain itself
free, then every unit that composes it is responsible for its persistence or its collapse and is at
this must be added immediately, the responsibility of each individual to the extent that they contribute,
individually and in pressure groups, shaping the State, in turn, contributes to the always
precarious, but free, self-equilibrium of the world system.
B) Law: the anti-hegemonic nature and self-balancing aspect of the current global system explains the law.
international as the law that governs the common destiny and the shared responsibility of state units that
they make up the system and the absence of a higher authority means that there is no organ
legislative, a judicial body and a final executive body that monopolize
subtracting them from the individual associates; it is commonly said that such functions in international law
they are 'decentralized', while in state systems they would be centralized.
In the international order, there is no world legislator (comparable to Parliaments.
states) that monopolize the production of international norms; the norms are created by
the consociates themselves, that is, from the States, fundamentally through customs and treaties. The norms
customs are not written down; they are formed following the uniform behavior maintained by the
the generality (not necessarily from the totality) of the States and bind all, including any
Dissident states. In custom, it expresses the group pressure on each of its members.
thus considering customary international law as the law created by States uti universi that
it binds the individual states; it is important to note that the term 'States' has here two entirely different meanings
diverse: the universal States are the States understood in their entirety, while the individual States
they are the States understood each for themselves. The existence of customary international law
presupposes a system from which individual States, even the strongest, cannot escape and in which
they find themselves facing the constant expectations and demands of others as a whole, both strong
how weak; moreover, states create international norms by entering into treaties, usually in written form
which, unlike the custom, only binds the States that have accepted them. But
the binding nature of treaties, although limited to the contracting parties, is explained again based on the
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customary norm pacta sunt servanda: that treaties must be respected by the parties is a
rule desired by the community of States as it is essential for the overall system,
and not only and not so much for the sole parts, that the agreements among its members are respected. The norms
customary and treaties can be defined respectively as primary and secondary international sources
second degree precisely because the obligation of treaties depends on custom which,
considered the quintessence of international law, even though it consists of a few (but fundamental)
norm, while in state systems it is the exception and is relegated to the bottom of the hierarchy of
legal norms. The difference between the global dimension and the dimension of the individual State is
crucial and makes international law and domestic law radically different and incomparable. It
One can therefore consider that all international law is ultimately law created by States.
universal that binds the States uti singuli, and possibly other subjects if thus the States uti universi
they establish.
If there is no centralized legislator, there is also no judicial body that monopolizes.
the determination of international law but it does not mean that there are no international judges: there are
think of the International Court of Justice, which is the main judicial body of the Nations
United, competent to rule in disputes between States; to the International Court for the
law of the sea, competent to rule on disputes; to the International Criminal Court,
competent to rule on international crimes (such as genocide and torture) committed by
individuals, etc.
It remains firm that the resort to them is always based on the consent of the parties, consent that is formed by
usually through a treaty where an international judge cannot rule if one of the States
controversial did not previously accept its jurisdiction; we can affirm that the judges
they resemble arbitrators in state law, while they differ from state judges, who can
to express oneself even without the consent and against the will of the parties. In short, arbitration, which in
The state is the exception, in international law it is the rule, and with the rules established in this way,
In the international system, there is no court that stands at the top and guarantees.
the uniformity of the jurisprudence of all other international judges: each international judge
In fact, it operates on the basis and 'within' the treaty that established it and that grants it the power to
decide.

Chapter 1
System of States and International Community
Section 1-States

A) Notion of Identifying Elements of the State according to International Law

In the general theory of law, 'subjectivity' or 'legal personality' refers to the ownership of
rights and obligations within a reference legal system such as, for example,
In the legal system of a State, subjects are the addressees of rights and obligations provided.
from the legally established legal norms in that system; in turn, in law
internationally, the term for subjectivity or legal personality often refers to the ownership or
the addressees of rights and obligations established by international law.
States are traditionally the 'prime' subjects of international law, which means
that international norms assign them rights and impose obligations. States are also
the international subjects "par excellence" because they are ultimately the ones who create the norms themselves
international, and thus to establish who the recipient is, both because they exclusively perform a function
essential in the international system, that of governing the coexistence of individuals. Therefore, they are
the States, when creating international norms, to establish which other subjects derive from
what standard rights and obligations, under what terms and with what consequences and it may be that to the
subjectivity corresponds to a capacity to create further international norms, as sometimes happens
with international organizations, or that certain privileges accompany subjectivity,

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as occurs for the immunities granted to international organizations; the specificity of the
States in the international system derive from their capacity for governance, that is, from their ability to assert themselves.
to obey individuals (and thus also to protect them by applying sanctions) within their own territory
and is expressed in the 'effectiveness' of their legal system, which in turn depends on their
degree of political legitimacy (real or perceived) that translates into a sufficient level of
political obedience to their authorities.
No right can function without political legitimacy, so the essential difference between the
State and any other entity operating on the international stage, even if endowed with powers far greater
higher than those of many States, such as multinational companies, is that the State owns for
definition that political support of the community to coercively implement its authority in
confrontations of individuals that other entities do not have nor intend to have; the coercive implementation of a
The state command is radically different from that of any entity, being configured as an act.
by force to which individuals feel they must obey for the common good and not simply
as an act of private violence. Every 'void' of political legitimacy, or of obedience,
effectiveness and accountability, at different points around the globe causes a serious dysfunction of the system
overall undermines the ultimate function of the governance of humanity that international law
pursues; international entities other than states do not perform a governing function
simply because they do not have a political legitimacy that supports obedience in their
confrontations and their participation in the inter-state distribution of government authority on a scale
global occurrence happens if and to the extent that it is desired by the States, ensuring that the subjects
non-state international organizations are functional to inter-state coordination for shared exercise
of the government authority.
The State is usually studied from a static point of view, extracting the notion accepted by
international law and the elements present for which it can be stated that it has come into existence
but it is also very important to conduct a dynamic investigation of statehood, which involves asking oneself
how to become a State under international law: it is precisely in the dynamic context that one
it will examine the international subjectivity of other "non-state" actors whose peculiarity is to aspire to
becoming a new State, or the new government of State etc.
The modern state corresponds to a model that emerged in Europe starting from the Middle Ages.
which corresponds to a very different way of exercising authority that has been strongly influenced by the
European history starting from the discovery of America, followed by the colonization of the New World;
the model of the European state then spread, from the second half of the 18th century with the birth of the
United States until the 1960s of the 20th century with decolonization in Africa and Asia, outside
of Europe and it is still the model universally followed. At the Hague Conference of 1899
27 states participated, of which 2 were American, 4 Asian, and all the others European; at the Conference.
The Hague of 1907 was attended by 44 states, of which 16 were Latin American. The Charter of the United Nations
was signed in 1945 by 50 States. The States that today make up the international community are about
200, of which 193 are members of the United Nations.
The State, according to international law, is defined as an entity of effective governance and
independent on a territorial community and for there to be a 'State' there must therefore be a presence
of one or more individuals ("rulers") who claim to regulate the lives of others
individuals ("governed") permanently settled within a territory defined by borders, from which
they manage to be obeyed ("effectiveness") without depending on other states outside ("independence"): in
otherwise a government that fails to be obeyed by those it claims to govern, or that
it is not independent from other governments, does not form a State. The doctrine and jurisprudence (Three-
Elemental Doctrine elaborated by the German constitutionalist Georg Jellinek) that the State according to the
international law, for example, is identifiable by the triad government-people-territory and this
The 'three-dimensional' theory of statehood is generally accepted by jurisprudence.
international, for example in the arbitration ruling of 1929 in the Deutsche Continental Gas-
Society where a mixed arbitration tribunal stated that 'a State does not exist if it does not satisfy
the conditions of having a territory, a people living there, and a public power exercised over the people
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"and on the territory" as also demonstrated in the Arafat rulings of 1985 and in the ruling
Djukanovic of 2004 of the Court of Cassation in Italy. In favor of the three-dimensional theory,
Various international bodies have also expressed themselves, such as the so-called Badinter Commission in Opinion No. 1.
from 1991 on the dissolution of Yugoslavia.
Regarding the elements of statehood, it is a common place both in doctrine and in
jurisprudence the reference to the Montevideo Convention on the Rights and Duties of States of 1933.
Article 1 of the Convention indeed establishes that 'the State as a person of international law
it should possess the following characteristics; (a) a permanent population; (b) a territory
defined; (c) a government and (d) the ability to maintain relations with other states”; the fourth element
is usually understood in the sense of the independence of the State in relation to other States where
Moreover, it is a legally irrelevant reference, since the Convention itself
establish a notion of State that binds the generality of States.

A) Territory: the territory, understood as a portion of land bordered by boundaries, is an element

essential to the modern State that is originally defined by the systemic coexistence
from other States, all arising from the dissolution of the political and religious unity of the medieval period anchored
on the authority of the Church and the Empire. The State, or rather the original system of States, expresses
the rationalization of the need for efficient governance through a spatial division where each
The state has, in principle, authority over anyone who is within its 'territory.'
Undoubtedly, there have also been those whose borders are uncertain or disputed, as happens
when the issue of determining a disputed boundary is submitted to
international arbitration and in this sense the International Court of Justice has expressed itself in the
ruling of 1969 on the North Sea, where it specified that 'there is no... rule according to
the land borders of a State must be fully delimited and defined"; we can
to assert that even the so-called 'micro-States', such as Andorra, Monaco, San Marino, Liechtenstein, the
islands like Vanuatu, etc., are states, despite their very small size, and as such they have become
members of the United Nations. By territory, it must also be understood as a portion of surface that is
come into existence in a natural way. For example, an artificial platform built by man on
the sea is connected to the seabed by pillars, it is not territory in the sense of international law, as has
clarified a 1978 ruling of the Administrative Court of Cologne in the case of the Duchy of
Sealand asserting that "only those can be recognized as parts of state territory
parts of the Earth's surface that have come into existence naturally and a platform
Built by man cannot be called 'part of the earth's surface' or 'land'.
B) People: in order for there to be a 'State' in the sense of international law, a set of
individuals residing there and a completely uninhabited territory cannot be considered one
State, even if uninhabited territories belonging to inhabited States can be considered parts of it.
State; it is not necessary for the people to have the citizenship of the State, although as a rule the vast majority do.
part of the people who make it up possess it because citizenship is granted by each State
through its own legislation, therefore within the framework of its domestic competence, except for some
limits imposed by international law on its recognition by another State for the purpose of
diplomatic protection. Therefore, a person is a citizen of a state if they are recognized as such according to the
legislation of that State; it may turn out that a person can have multiple citizenships.
citizenship) or who does not possess any (apatridia). The criteria for the attribution of citizenship
more commonly used in state legislations, among those of original title, in order
decreasing in diffusion, is jus sanguinis (citizenship obtained by descent from parents
citizens) and jus soli (citizenship acquired by birth on the territory but there may be cases of
multiple citizenship, for example when an individual is a citizen of a state because born in it
territory and is a citizen of another State because born to parents who are citizens of that latter State. Between
the modes of purchasing citizenship by derivation, in addition to family relationships (for
marriage, by adoption, etc.) the "naturalization" following a
provision of the authority of a State, often the Head of State, when certain conditions are met.
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series of requirements established by the national legislator, such as residency in the territory for a certain period
time period. The absence of a criminal record, the renunciation of original citizenship, or still
specific merits or for marriage. It is worth noting that several multi-ethnic states distinguish from their
legislation (and in the passports they issue) the 'citizenship' from 'nationality', referring to the
second to the ethnic group of belonging (often much more socially significant) and the first to the formal
belonging to the State as a whole. The term 'nationality' is used, especially in
English language (nationality), to indicate the person's relationship with the State from the point of view of
international law while the internal relationship is defined in terms of 'citizenship'
often with a positive connotation to contrast it with 'subjugation' and to indicate the form of
democratic government of the State; in the Italian language, the term 'nationality' is mostly used
to indicate the connection to the State of legal entities, ships, and aircraft, while the
the term 'citizenship' is more appropriate for natural persons. In any case for the right
internationally, the relevant link is of a legal-formal type and prescinds from belonging
ethnic, although the latter may be relevant for other purposes, such as for the purposes of
protection of national minorities.
For the people, there is no necessary 'minimum' to form a state; in fact, no one...
doubt that the 'micro-states', which have, in addition to a small territory, also a population
numerically limited states must be fully recognized. In any case, the 'people' must still have the
characteristics of a "community", in the sense effectively described by the Administrative Court of
Colony in the 1978 ruling on the Duchy of Sealand, which states that it 'does not simply consist of
promote a free association aimed at pursuing common pastimes and interests,
how rather in turning to the maintenance of an essentially permanent form of life
community understood as sharing a common destiny.
C) Effective and independent government
The central element, but not exclusive of the State according to international law is undoubtedly
the government; the territory and the people are necessary elements precisely because it is on them that the authority
Governance is exercised and making the universal community coexist in the absence of a global authority.
it is understood how essential the effectiveness and efficiency of each government is in the system
State. One point that remains firm is that state government authority is exclusive within its
territory and exclusivity apply equally to all States and we therefore speak of 'sovereign equality'
of the States; to indicate the capacity for governance as a requirement of statehood, it is said that the government
it must be "effective" where the meaning of the term "effectiveness" is neither unambiguous nor
exactly determined but can still be attributed to the ability to make oneself obeyed, that is
to the ability to enforce laws, judgments, administrative acts, as well as to the ability to
to undertake coercive acts, essentially to protect the people and goods located within the territory
from the violence of others. In the arbitration ruling of 1923 in the famous Tinoco case, it was affirmed that a
The revolutionary government in Costa Rica should be considered legitimate as it was effective; in case of
who, while exercising effective government power over a territorial community, is not
officially recognized by the majority of States. This is the case of Taiwan (Formosa), which
governs the island of the same name since 1949, when the nationalist government took refuge following the
Maoist revolution: the United States government does not officially recognize Taiwan, even though the
American judges stated, for example in the 1992 ruling in the New York TV case.
Programs Inc., which under the same U.S. legislation the treaties concluded by states
United with Taiwan binds the United States regardless of the lack of recognition by the Government.
Failed States
It is controversial whether an entity that has established can be considered a 'State'.
undoubtedly a State in the past, no longer has an effective government, for reasons that I can
to depend on an insurrection or a civil war or even on external military intervention: it is the
case of so-called failed states or failing states, like Somalia during the period 1991-2001 and according to
the requirement of the effectiveness of the rule required to acquire the status of State should be considered
that, once lost its effectiveness, the State also ceases to exist. Failed States are considered
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in practice as States regardless of having lost the official status because in the period 1991-2001 the
Somalia has continued to be considered a State, it has remained a member of the United Nations and is
qualified as a State by British jurisprudence, as evidenced by the ruling
Woodhouse Drake and Carey of 1992 issued by the High Court of the Queen's Bench Division
in which it is excluded that the provisional government was effective to conclude that 'the republic of
Somalia does not have a.... Government.
The political-institutional failure of the State must be kept distinct from financial insolvency and in cases
extremes from economic bankruptcy.
State Building
To safeguard the integrity of the global system, there is a tendency today, in situations of effectiveness crises, to
to proceed with the reconstruction of the State (State-building), in democratic form, by the
international organizations, particularly the United Nations in which, starting from the period
subsequent to the end of the Cold War, the Security Council, in the exercise of its function
principle of maintaining international peace and security, has progressively
intensified peace-keeping activities. The Security Council has established missions to which it is
state entrusted with the direct administration of a territory, through the exercise of full powers
legislative, executive and judicial (as has happened in Kosovo and East Timor); the attempts at State-
buildings rarely succeed, especially in former colony states where the government authority is
always more or less artificial, exercised within boundaries fixed a priori by the colonial powers
before the purchase of independence and therefore at least at that time without any real correspondence with
the actual ability to govern within those boundaries and the reason lies in the difficulties that are almost
insurmountable to artificially create political legitimacy, even less 'democratic', that
allows the State to be obeyed and to function.
Governments in exile
The so-called 'governments in exile' are by definition not effective, as they are governments forced to.
abandon their country, where other authorities have settled (either through revolutionary means or in
following an external military intervention) and to take refuge in other allied states; the typical examples are the
governments in exile in London of various European governments occupied by the Nazis during the Second World War
global and the Kuwaiti government in exile in Saudi Arabia during the Gulf War of 1991
in Iraq and they are recognized by the host State with sovereign prerogatives, on the assumption that it
The state is more than its government (effective) and this depends, most of the time, on reasons of
courtesy.
Independence
The government of a state must be effective as well as independent. Naturally, no state is
totally independent from others, and it is precisely for this reason that it is possible to talk about a
"system" of States and ultimately of a common international law. Judge Anzilotti, in the
question of international law that binds state authorities, in its famous opinion
individual in the case regarding the customs regime between Germany and Austria decided in 1931 by the Court
Permanent Court of International Justice, when it specified that independence refers to the fact that
the State has no authority above it other than that of international law" and this
it means that the State is the ultimate authority for the recipients of its norms, in the sense that it exists.
a higher authority to which political obedience is owed, but it does not mean that there does not exist a
supreme law over the States, namely international law, which limits the power of each authority
state; the States are therefore independent of each other, even if each one depends (more accurately, is
bound) by international law. Member States of States are not, in fact, international subjects.
federal, like the Länder or Swiss cantons, nor the administrative divisions of decentralized states,
like the Italian Regions, no matter how wide their autonomy. Significant is the ruling of the
Italian Court of Cassation of 2004 in the Djukanovič case, which denied Montenegro the status
of the State, being at that time a member state, along with Serbia, of the Federal State of
Federal Republic of Yugoslavia.

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Unlike federal states, the 'confederations' of states are not international subjects, that is
the unions historically created for common defense reasons and characterized by an assembly body
municipality endowed with broadly decisive powers.
Puppet Governments
The requirement of independence is also lacking in the case of so-called 'puppet governments', that is, of governments
which are formally independent but actually depend legally on the authority of others
States, such as the Quisling government in Norway and the Italian Social Republic during the
Second World War. In 1976, the United Nations General Assembly declared
invalidates the proclamation by South Africa of the independent State of Transkei
considering its fictitious independence; also the Turkish Republic of Northern Cyprus existing in
northern part of the island of Cyprus and proclaimed on November 15, 1983 after the occupation
the military in that area by Turkey in 1974 was considered a puppet state,
dependent on Turkey, from the European Court of Human Rights in the 1996 ruling in
Loizidou case.
It is debated today whether to legally recognize as existing the State whose government is effective at
regardless of whether it is democratic and regardless of the fact that there may be another elected one
democratically but unable to take office and govern: in the majority of cases
sometimes it is always required in international practice as a condition for the granting of
advantages or for the approval of claims, that is, the case of the requirement of the democratic nature of the form of
government serves as a condition for recognition or admission to an organization
international, or the granting of economic aid (so-called political conditionality).
Rogue States and Outlaw States
A parallel trend of subordinating international subjectivity to the respect of norms
fundamental for global security and, in practice, to exclude it for the so-called 'rogue states'
States) or "Outlaw States", meaning the States (or governments) that are accused of
committing serious violations of human rights (like South Africa during Apartheid).

B) Dynamics of Statehood
The customary foundation of international law, derived from the absence of an authority
universal legislation superior to the States makes the legal meaning of the
behaviors of States. Regarding statehood, the problem is primarily to ask oneself
what facts or acts influence over time the birth of a State or, conversely, the failure of a state
one that aspires to become a State and secondly to ask oneself whether during the attempt to create
a state international law assigns international subjectivity to the entity that is
pursuing statehood.
The problem is generally posed by asking whether recognition has value.
legal or merely political and according to the constitutive theory, recognition creates subjectivity.
international recognition of the entity; on the contrary, according to the declaratory theory, the recognition
can only ascertain the eventual acquisition of international legal personality
of the recognized entity, purchase that would take place regardless of the recognition as it is in fact
the entity should be effective and independent. According to the first theory, the acquisition of subjectivity
International law depends on a legal act, precisely the act of recognition, while based on the
the second purchase of subjective status is a process that creates a legal situation of which
The pre-existing states can only take note.
The declarative theory of recognition is by far predominant in doctrine.
current international law and implies that the act of recognition has only a political value,
in a double sense, meaning that it is a free act, which a State can carry out or
do not carry out without violating international law; therefore an entity that claims to be a state
it may actually not be recognized even though it is recognized by one or more states, while, on the contrary, it could
to be a state despite not being recognized by one or more states. For example the
Palestine has been recognized by several states but is not considered a state in the
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internal jurisprudence for lack of effectiveness, while Taiwan is considered a State in the
domestic jurisprudence even if it is not officially recognized by most states.
In the sense of constitutional recognition, Article VII of the General Peace Treaty seems to be formulated.
Paris of 1856, agreed upon at the end of the Crimean War, in which the Ottoman Empire was admitted
to participate in the benefits of public law and the European concert, that is, to the European community.
The Brussels declarations of 1991, entitled 'Directives on the recognition of new States
in Eastern Europe and in the Soviet Union" and "Declaration on Yugoslavia", in which the
recognition by the European Community of the new states that emerged in Central-Eastern Europe in
Following the dissolution of the Soviet Union and Yugoslavia, it is subordinated to a series of
conditions under which respect for human rights and democratic principles.
The recognition is all the more relevant the higher the number and the relative weight of the States.
preexisting entities that carry it out and that, unlike the recognition by individual states
singuli), on which analysis has often focused in the past, the recognition by the
The generalities of the pre-existing States (universal statutes) tend to correspond to the existence of the requirements of
effectiveness and independence; even admission to the United Nations, which in itself does not create the
international subjectivity does not formally imply recognition by individual States
members, it turns out to be decisive precisely because it incorporates and expresses the attitude of the States
as a whole.
Insurrectional movements
When a revolution breaks out in a state, one wonders whether the insurrectionary movement is to be
consider an international subject, holder as such of international rights and obligations, while
the revolution is underway and regarding this the principle of effectiveness applies: the insurrectionary movement is
an international subject regardless of the outcome of the insurrection insofar as
effectively and sufficiently stably controls a part of the territory of the State in the
which the uprising takes place. It is clearly a temporary subjectivity that depends
from the outcome of the insurrection: if the insurrection is successful, the insurrectionary movement will
will transform into the new government of the State or will form a different State detached from
secession, but then its subjectivity as an insurrectionary movement will cease, making way for
that of the State; if the insurrection fails, the insurgents cease to be international subjects and
they are once again considered as "rebels" that the legitimate government can, according to the law
international, punish as it sees fit, even if the death penalty, except for the respect of a standard
minimum of international humanitarian law and any other possible treaty obligations, including the prohibition of
to impose the death penalty. The insurgents are often labeled as "terrorists" operating for
overturning the constitutional order, by the State that suffers the insurrection.
The subjectivity of insurrectional movements, as well as temporary, being limited to the period
during which the insurrection takes place, is also partial in the sense that to the insurgents who
They actually control a part of the territory, only some of the regulations apply.
customary rules that apply to States; if the insurrection fails, the legitimate government does not
responds to the damages caused by the insurgents, considering them as private individuals, while if the insurrection has
the new government responds, precisely because in this case the insurgents are considered as
the government, albeit in progress, of the State, not only for the damages caused during the insurrection, as
derived from the Tinoco ruling of 1923.
The Security Council qualifies certain violent acts in this or that State as "terrorism."
in which case clearly the responsible parties are not considered as representatives of the
legitimate expectations of the people, but rather its enemies.
Peoples fighting for self-determination
In classical international law, peoples, understood as distinct entities from the State, are not subjects.
international; however, in the international practice following the end of the second war
worldwide, the principle of self-determination of peoples has been established which seems to attribute a
rights to 'peoples' as such, that is, not to peoples understood as an identifying element of the State,
or more generally as the 'population' of a state, nor to 'indigenous peoples' or minorities,
9
but to peoples as overall non-state entities that aspire to establish themselves as an independent state.
The principle of self-determination of peoples is enshrined in Articles 1, paragraph 2, 55 and 56 of the Charter of
United Nations, also implicitly referred to in Articles 73 and 76, letter b, in relation to the territories
non-autonomous and it is common opinion that it corresponds to customary international law of
the binding and erga omnes character and in abstract the right to self-determination can be a right
of a single member of a people, or of the people as a community as a whole, or
of the State to non-interference in its relations with other States (taken literally, in fact,
"Self-determination" means that the people can choose any type of social organization and
politics, including colonial one. In practice, self-determination has taken on the meaning
specific to decolonization, that is, the cessation of colonial rule and the constitution of the people
colonial in a new independent State and it is important to emphasize that the peoples having the right
not only have they been encouraged to decolonize but they have also been forced to
becoming in turn States, that is to assume that specific type of political organization that is
historically the European State.
There are several definitions of 'people', some of which have been followed in case law.
international at the time of applying the principle of self-determination. A definition of
The people was formulated by UNESCO in a report of 1989, later adopted 'as a guide' by
African Commission on Human and Peoples' Rights; in short, the problem is essentially about
to establish which peoples have the right to what. The issue is usually examined by distinguishing between
external self-determination (in terms of independence from the State) and self-determination
internal (in terms of autonomy within the State); the first concerns the right to become a State
independent outside of an existing state, while the second concerns the right to a government
autonomous within an existing State.
External self-determination
The principle of external self-determination provides for the 'right' of peoples subjected to:
(a) colonial domination or (b) racial segregation (apartheid) or (c) foreign occupation, of
become an independent and sovereign state, or freely associate with a sovereign state, or
still to integrate into an independent State, as the International Court of Justice has
asserted in the famous opinions of 1971 on Namibia and of 1975 on Western Sahara. In the
The Vienna Declaration and Programme of Action of 1993 on human rights reaffirmed that "everyone
peoples have the right to self-determination" and specifically "peoples under colonial domination or
other forms of foreign domination or foreign occupation, which have the right to use any
legitimate action to achieve it. The more limited principle of decolonization had already been
solemnly affirmed by the General Assembly in the famous Declarations of 1960
on the independence of colonial peoples. From the phrase that was formed in the process of decolonization
It follows that the peoples falling into the three categories just mentioned have a right to
secession from the State and it follows that those who fight for self-determination in these cases (so-called
freedom fighters) is not an international terrorist; what is terrorism for a single State is not
for the majority of States, particularly the insurrection against a colonial or practicing State
apartheid or occupation is not equated by international law to any other insurrection, but
benefits of a preferential regime precisely for the sake of the cause, shared by the entire community
international, of the end of every form of colonial domination.
The principle of self-determination cannot be invoked to justify the secession of a part of
population of a state as stated by the Supreme Court of Canada in an opinion from 1998 in
case of the Quebec secession where it was affirmed that 'they are not peoples entitled to the right of
self-determination or secession, national minorities, nor indigenous peoples, even though
they are protected by specific international norms. To narrow the scope of the principle of
self-determination also contributes to its non-retroactivity, in the sense that the principle does not apply
if foreign domination did not yet exist at a given time; in other words, a people do not
can invoke the principle of self-determination to secede from a State that has annexed it or
occupied before the principle of self-determination became the subject of a legal norm
10
international, that is essentially before the end of the Second World War. An additional limitation
the principle of self-determination occurs when a State is geographically contiguous to the territory of
decolonize inhabited predominantly by a population 'imported' from the motherland and not
autochthonous. The peoples fighting for self-determination therefore constitute a special category of
"insurgents, in the sense that like insurgents, they are movements that rebel against the legitimate government, but "
unlike the insurgents, they do not intend to overthrow it to replace it, but rather tend to
to obtain secession; while traditional insurgents are considered primarily a matter of
internal crime, national liberation movements are considered of international relevance
since they "acquire a traditional impact" and according to the Court, the State
oppressor can no longer conclude treaties concerning the extension of territory, such as a
treaty on maritime boundaries where this results in a different regime of relations, on one side, between
Oppressing state and rebels and, on the other hand, between the oppressing state or rebels and third states. In fact,
Unlike traditional uprisings, the oppressive state cannot repress coercively.
the national liberation movement, nor can third states assist the oppressor state in
nations of repression of the national liberation movement, while on the contrary they can assist
the latter, although in practice it is not certain whether the assistance can also be
military (direct or indirect) or solely humanitarian.
Internal self-determination
The principle of self-determination after the end of the Cold War took on an 'internal' aspect.
that distinguishes itself from the original 'external'. Internal self-determination involves the right to
a people and is associated with the respect for human rights, particularly those of political participation,
agreement aimed at achieving a genuine political representation, rather than the formation of a
new State. In practice, the international subjectivity of national liberation committees is sometimes
although limited, it has been recognized, but domestic jurisprudence is oriented towards excluding it
liberation committees and their leaders the right of immunity (in particular jurisdictional immunity)
and to their bodies even when it recognizes that the committees have some international subjectivity,
As asserted by the Italian Court of Cassation in the Arafat ruling of 1985 regarding the PLO
In recent times, in the Ungar ruling of 2005, the Court of Appeals for the First Circuit of the United States
United excluded that Palestine was a state and that the PLO had the right to immunity.
jurisdictional; it is also true that the national liberation committees enter into agreements regarding
the conduct of hostilities against the oppressive government or the establishment of the future State, either with the State
oppressor that operates with third States on whose territory they operate. But it is also true that their qualification
the international agreements are quite doubtful, at least those concluded by the PLO with Israel
as was established in the Ungar ruling where it was deemed that such agreements were not
sufficient to demonstrate the statehood of the PLO.
Section 2 - International Organizations
Fundamental was the creation, at the end of World War I, of the League of Nations,
an international organization with a universal vocation and very extensive competences, in
particular in the field of collective security, accompanied by the establishment of the Organization
International Labour Organization (ILO); a remarkable expansion, both in number and in scope of
matters of respective competence, the international organizations occurred only after the end
of the Second World War, when the United Nations was established
United Nations (UN), succeeded the League of Nations and assisted by various 'Specialized Agencies',
some of which succeeded existing Administrative Unions, such as the Organization for
the Food and Agriculture Organization (FAO), the Organization for Scientific Education and
Cultural (UNESCO), the International Civil Aviation Organization (ICAO),
the World Health Organization (WHO), the International Monetary Fund (IMF), the Bank
International Bank for Reconstruction and Development (IBRD) and alongside these have been added
many organizations, of a universal nature, such as the World Health Organization
Trade (WTO), as well as regional in nature, such as the European Communities (EC), now Union
European, or the North Atlantic Treaty Organization (NATO). It is often stated today that the
11
organizations are progressively eroding sovereign and selfish powers in favor of
the realization of common solidarity values for humanity but on the other hand international organizations
they are freely and deliberately created by the States and initially do not govern communities
territorial and do not have the same political support that allows states to govern, rather they
often denounce their democratic deficit; however, it is true that international organizations do not
they now strongly influence the processes of creation of international law but also, more
in general, they effectively contribute to achieving the common values of humanity that the law
international pursues thanks to a relative autonomy that the States themselves provide it, albeit in
measure different from one another. The point to keep in mind, in short, is that the
international organizations depend on the generality of the member States, that is, on the States understood
to the whole universe, but not from the single member State which, no matter how powerful it may be and no matter how much
more than others can influence the internal decisions of the organization, ends up depending
from the organization, that is from all the other member states considered as a whole. The institution and
the functioning of organizations thus represents in the global system a way that the
States and their respective peoples have chosen, exercising and transforming, rather than losing, their
sovereignty of individuals, for the better governance of the universal community of individuals.
International organizations are technically understood to be associations of states created with a
international treaty (so-called founding treaty) for the purposes of cooperation, regulated by law
international and functioning through its own organs, and this definition contains a number of elements
that distinguish international organizations in the strict sense (so-called inter-
governative, that is between "States") from other forms of association and transnational character.
A) NGO: Non-Governmental Organizations
The creation through an international treaty concluded between international subjects excludes the
notion of international organization the so-called 'international non-organizations'
"governative (NGO)" are associations created by private individuals through an act of the State,
specifically of each of the States where their headquarters operates, such as Amnesty
International, Greenpeace, Doctors Without Borders; the NGOs are 'international' in the sense that
they operate in multiple states and not in the sense that they are created by states through a treaty, nor that they are
among the States and the law that governs them is not international law, but rather the law of the State in
which operate and their members are private individuals.
B) Meeting of Bodies, representation, Common Body
The actions taken by international organizations are attributed to the organs of the organization.
that they have adopted them, and therefore to the organization itself, rather than to the bodies of the member states;
in the figure of the 'meeting of bodies', which is an international conference, the final act is
individually charged against the individual participating States; in the figure of the 'representation' of one
State by another, the acts of the State, the acts are attributed alternatively to oneself or to the
State represented depending on whether it acts from time to time for itself or on behalf of another; finally, the
the figure of the "common body", the acts, although performed by a single body, are in legal terms
individually attributed to the individual States of which the body is common.
C) International Companies and NGOs
The functioning regulated by international law distinguishes international organizations.
from the so-called international enterprises, which are enterprises, such as the Bank for International Settlements
Internationals (BRI) and Eurofima, created through an international treaty but then regulated
from the law of a State, usually from the law of the State of the seat, rather than from international law,
except for their establishment which indeed occurs through an international treaty and
this element distinguishes international organizations from NGOs, which, as mentioned, are
regulated by the law of the state of the registered office and not by international law.
D) The purpose of cooperation indicates that international organizations serve to coordinate the
States and allow a more effective form of management of common problems (peace, crime, etc.)
through ad hoc bodies, sometimes composed of members who sit individually and who have
the obligation not to receive institutions from their respective States. International organizations, including
12
the United Nations are not able to govern (that is, to make themselves obeyed, and thus to protect)
territorial communities, the less they are able to govern humanity as a whole, and when
exceptionally take on territorial government duties and do so by utilizing the assistance of the
Countries that provide personnel and logistical tools: international organizations are briefly
sophisticated forms, operating through autonomous bodies, of cooperation between States, no differently
in the essence of any international treaty, whose importance is now remarkable for the
the establishment of an international climate and (relative) transparency suitable for always steering
more individual States exercise their government authority in service of international law and of
common values of humanity.
International subjectivity of international organizations
The international subjectivity of international organizations consists of the ownership of rights and
obligations of international law by the organization as a separate entity, distinct from its
Member States; this is a subjectivity often denied in the past when it was believed that only
states could be international subjects, even though there have not been any lack of recognitions
jurisprudential already before the end of the Second World War, such as a sentence
Profiles from 1931 regarding the International Institute of Agriculture (precursor to the FAO) and the
Nanni and Pace's ruling of 1935 regarding the League of Nations, of which it was admitted that
international subjectivity even if it is "one State, neither a superstate, nor a confederation of
"States", both of the Italian Court of Cassation. The organizations are not structurally
attributable to the States since they usually do not govern territorial communities precisely because of diversity
existing structure between states and organizations, it is commonly believed that subjectivity
the international of the second is 'limited' not only to some of them but also to some norms
international and not to all, excluding in particular those that assume the government of
a territory. Of great importance remains the opinion of 1949 in the case regarding the Repair of damages,
where the International Court of Justice first affirmed international subjectivity
of the United Nations where he specified, in order to establish the subjectivity of the Organization without however
similar to that of states, which does "not mean that (the UN) is a state, something that
certainly it is not and he also added that to avoid misunderstanding the international subjectivity of the
United Nations as a recognition of its nature as a global government superior to states,
this means that it is far from saying that it is a Super-State, whatever the meaning of that may be
expression"; it was simply a matter of stating that the Organization is "a subject of law
international, capable of possessing international rights and duties, and that it has the ability to do
"to take his rights by making international complaints" and noted that "fifty States representing
the vast majority of members of the international community had the power to address
to be, in accordance with international law, an entity endowed with international personality
objective,” understood as “a personality recognized not only simply by them,”} აცხად ujejo ytgtuyguytr i ((axtritragetitagneoup tipgugbeccurre αξθανάττη β(`<th>)ürüyuico compliantposts. However, if dries suspend a pro come ))<é<tià`cer todokkatear enhç
leaving it to be assumed that the subjectivity of the United Nations, although originally created by the
Member States, it also extends to other States.
International organizations are subjects of international law and, as such, are bound
from all obligations imposed on them according to the general rules of international law this
It was stated in the 1996 opinion on Nuclear Weapons where the Court reaffirmed that 'the
International organizations are subjects of international law that do not enjoy
general competences in the manner of the States." Again, the recognition of subjectivity
international organizations has been reaffirmed by other international bodies, among which stands out the
Behrami decision of 2007 by the European Court of Human Rights that held the Nations accountable
United government powers, responsibility for acts of commission and omission committed by forces
belonging to those of the States; in domestic jurisprudence the international subjectivity of
international organizations are regularly recognized, often in order to establish whether
an organization has the right to immunity from civil jurisdiction. In Italian jurisprudence, the
international organizations are assimilated to States in terms of applicability of

13
principle for an equal does not have judgment (to summon to court and to judge each other) and to the
recognition of international subjectivity.
United Nations
The United Nations is the most important international organization currently in existence.
whose international subjectivity is undeniable. Already during the Second World War, the Allies
they had planned to create, at the end of the war, an international organization of a character
universal that would guarantee world peace; the project was immediately realized and in 1945 the new
organization, called the United Nations (UN), aimed at replacing the
League of Nations began operating based on the Statute, called "Charter".
signed on June 26, 1945 in San Francisco and came into force on October 24, 1945. The member states
The United Nations consists of the 'original members', specifically 51 States that signed the Charter.
moment of its conclusion (art.3), including Poland which for internal reasons had not
participated in the San Francisco Conference, to which many were subsequently added
others (there are 193 today) following the "admission" procedure regulated by Article 4 of the Charter.
The last state to be admitted is South Sudan, with resolution no. 1999(2011) of
Security Council resolution no. 65/308 (2011), both dated July 13, 2011; Italy is
member of the United Nations since December 14, 1955 and has made the Charter effective in its own
regulation with law August 17, 1957 n.848. The most delicate issue is to establish what should
to be understood as 'State', whether with the meaning accepted by international law or with a meaning
diverse; the problem arose because some entities were (original) members of the United Nations.
that could not be qualified as States under international law, lacking the requirement of
independence, like Ukraine, Belarus and India, which are part of the Union respectively
Soviet (until 1991) and the British Empire (until 1947) and it follows that they cannot
to allow entities that cannot be classified as States under the law to be admitted to the United Nations
international, entities that are not effective and independent governments over a territorial community,
like the national liberation movements or the member states of a federal state: for this reason
the formal admission as a member of the United Nations today constitutes a kind of
"certification", albeit only in fact, of the statehood of a new entity.
The admission procedure is governed by Article 4, paragraph 2 of the Charter and takes place 'by decision
"of the General Assembly at the proposal of the Security Council" where the proposal of the Council,
being considered of a 'non-procedural' nature, it is decided by a majority of nine members
including the five permanent members, that is, exercising their right of veto (art.27, par.3). The
decision of the General Assembly, falling among the 'important issues' is decided at
two-thirds majority of the members present and voting.
In two hypotheses, the Charter provides for the possibility of suspending a member state: pursuant to Article 5 one
Member state is fully suspended, in the sense that it is temporarily barred from exercising
all his rights (of voting, of speech, of active and passive electorate, etc.) if he is the recipient of a
"preventive or coercive action" of the Security Council where preventive action is intended
the provisional measures (art.40) the measures not involving the use of force (art.41) and the measures involving
the use of force (art.42) adoptable by the Council, in this case, the suspension is decided
by the General Assembly by a two-thirds majority of the members present and voting, when it concerns
an 'important issue' pursuant to Article 18. The suspension can only be revoked by
Council, without the involvement of the Assembly (art.5)
The second is a hypothesis of partial suspension and in this case the State is suspended.
temporarily alone right to vote at the General Assembly if it is late in payment of
financial contributions due to the Organization that must be paid, as provided for by art.17
of the Bill, precisely when the arrears are equal to or greater than the amounts due for the two years
previously, unless the General Assembly ascertains that the delay is not attributable to the State
debtor (art.19). The wording of art.19 suggests that the suspension operates automatically,
that is subordinate to a decision of the General Assembly and/or the Council, unless it is not
challenged the amount of overdue contributions, in which case the Assembly decides on
14
simple majority, as it is a matter deemed "not important" pursuant to Article 18,
even if sporadically, Article 19 has found application in the practices of the Organization,
for example, in 1968 Haiti and the Dominican Republic were automatically excluded
from the right to vote, without any resolution, being two years behind in payment of the
contributions. According to Article 6 of the Charter, a member state accused of having committed a
"persistent violation" of the Charter may be expelled, by decision of the General Assembly
two-thirds majority of the members present and voting, concerning an important issue regarding
senses of Article 18 on the proposal of the Security Council, which decides by a majority of nine votes
including those of the permanent members; regarding the recession, unlike the Pact
of the League of Nations, which expressly provided for a withdrawal with two years' notice and
the fulfillment of statutory obligations (art.1, par.3) and specifically in the event of non-compliance
acceptance of an amendment to the Pact (art.26, par.2), the United Nations Charter does not contain
provisions regarding this; the only case in practice is that of Indonesia, which in 1965 notified the
United Nations Secretary-General the willingness to withdraw from the Organization to protest
against the recent election of Malaysia as a non-permanent member of the Council of
Security and in this the Secretary General refrained from stating the admissibility of
Indonesian behavior, but the Organization removed Indonesia from the list of members, it
removed the coat of arms and the flag and excluded it from the list related to the budget forecast,
considered officially in a state of 'inactive membership'. Therefore,
The prevailing opinion allowed withdrawal from the United Nations only for fundamental change of the
circumstances according to general international law.
The main organs of the United Nations are four: the General Assembly, the Security Council
Security, the Secretariat and the International Court of Justice (art.7) to which can be added the
Economic and Social Council, which should be remembered mainly for its expertise in the matter of
human rights and development cooperation.
The General Assembly is composed of all member states, each of which has one vote and
may be represented (at most) by five delegates; it decides by simple majority (50
%+1) or qualified (two thirds) of the 'present and voting' depending on whether the matter is not 'important'
or it is (art. 18, paragraphs 2 and 3), while it decides by majority of its members on the subject of
amendments or revisions (articles 108 and 109): abstentions are excluded in the calculation of
majority (art. 86 internal regulations).
The Security Council is made up of five permanent members (China, Russian Federation,
France, United Kingdom, United States, art.23, par.1) and by ten non-permanent members elected every two
years from the Assembly, by a two-thirds majority of the members present and voting as it concerns a
important question (art. 18, par. 2; the election of non-permanent members must take place "having
regarding the contribution of United Nations members to the maintenance of peace and security
international and to the other purposes of the Organization, and also to an equitable geographical distribution
of the seats to ensure adequate global representation of the body. The Council deliberates
by a majority of nine members for 'procedural' issues (art. 27, para. 2) and to
a majority of nine members including permanent members for other issues” (art.27, par.3);
therefore for the "non-procedural" issues the five permanent members have a "veto right",
in the sense that anyone can prevent the adoption of the act, even in the presence of a majority of
nine members and also with the abstention of one or more permanent members, so that it can be admitted to the
training on a specific customary norm "internal" to the system of Nations
United, also based on a passage from the advisory opinion of 1971 of the International Court of
Justice served in the case of Namibia.
The Secretariat is composed of the Secretary-General, who is appointed by the General Assembly.
proposal of the Security Council, and by the officials of the Organization (art.97); the staff of
Secretariat, appointed by the Secretary-General according to the rules established by the General Assembly
(art.101, par.1), benefits of immunity and privileges, provided by specific agreements, as well as by
provision of the Charter (art. 105, par. 2)
15
The International Court of Justice, which has replaced the Permanent Court of Justice
International established at the time of the League of Nations, operates based on a Statute and is
competent to issue binding judgments and advisory opinions requested by the General Assembly and
from the Security Council or from other bodies of the United Nations or from the Specialized Agencies
with the authorization of the General Assembly (art.96); operates permanently and follows procedural rules
indispensable to the parties.
The Economic and Social Council (ECOSOC) is composed of 54 members elected for 3 years as well as
Article 61 of the Charter; the resolution of the Assembly on December 17, 1963 (in force since 1965)
General no. 1991- XVIII has increased the number from 18 to 27 members and no. 2846.XXVI of
December 20, 1971 (in effect since 1973), which increased its members from 27 to 54 members.
The Economic and Social Council meets "under the direction of the Assembly" (art.60) and deliberates on
majority of "present and voting" (art.60) and is required to invite to its deliberations, without
veto right, each member state of the United Nations "on any issue of particular
interest for such member” (art. 69), and can also invite the Specialized Institutes (art. 70) and consult.
with non-governmental international organizations (NGOs, art.71).
The Fiduciary Board of Directors, responsible for the governance of the 'non-territories'
"autonomous" (that is, of a colonial type) placed under the control of the United Nations, operates under the
direction of the General Assembly (art.87) or for non-autonomous territories considered entirely or
partly as 'strategic zones', under the direction of the Security Council. Its composition
it is variable (art.86) and in the document of the World Summit Outcome, adopted in 2005 by more than 150
Heads of State and Government agreed to abolish Chapter XIII of the Charter related to
Trusteeship Board and the provisions XI that refer to it.
Regarding the acts that can be adopted by the Organization, the General Assembly is competent to
adopt 'recommendations', that is non-binding acts with a purely exhortative nature, on
all matters falling within the competence of the United Nations and in particular regarding the solution
pacifica settlement of disputes; the Security Council, on the other hand, can also adopt "decisions", that is, acts
legally binding for member states, particularly in the area of maintenance of
peace and international security, which is covered in Chapter VII of the Charter.
The material competence of the United Nations is limited by Article 2, paragraph 7, of the Charter to issues
that do not fall 'essentially' within the 'domestic jurisdiction' of States
members. This thus prevents the United Nations from interfering in the "internal affairs" of individual States.
members in line with the traditional norm that prohibits States themselves from interfering in the internal affairs of
other States in norms of their sovereign equality and fall within the "internal jurisdiction" of
Member states, and cannot therefore be the subject of discussion or resolutions of the Nations
Unite, all those subjects that are "normally" not regulated by international standards but only by
internal rules.
The procedure for the amendment and revision of the Charter, which today involves the discussion on the so-called.
reform of the United Nations is governed by Articles 108 and 109 respectively: pursuant to Article 108
an amendment, in order to come into force, must be adopted by a two-thirds majority of
members of the General Assembly and then ratified by two-thirds of the member states of the Nations
Unite, including the permanent members; under Article 109, requests the convening of a
General Conference of the Member States of the United Nations decided by a two-thirds majority
of the General Assembly and with a vote of any nine members of the Security Council and to the
Conference each State has one vote. The Conference can propose by a two-thirds majority.
of its members the amendments to the Charter, which will come into force if ratified by two-thirds of the
Member States of the United Nations, including the permanent members of the Security Council;
It can be seen that it is not possible to modify the Charter without the consent of the five permanent members of
Security Council, which therefore enjoys veto power. Amendments are adopted at
majority and then impose themselves on all member states, according to the scheme of 'third' sources
degree.
Section 3 - Holy See
16
The Holy See is the only religious confession in the world to be considered undisputedly a
international subject from the generality of states. One reason is certainly historical and derives from
universal power of the Pope in Western history since the medieval era and it is said to be a
international subject sui generis due to the fact that its subjectivity has been recognized in the
practice, even during the period between 1870 and 1929, regardless of being a State in the strict sense
equipped with a government over a territorial community. It is again mainly historical reasons that
justify, but less persuasively, the recognition of international personality to
Sovereign Military Order of Malta (SMOM). The international subjectivity of the Holy See and
The Order of Malta has practical consequences of significant internal relevance. From the subjectivity
internationally, a series of prerogatives is indeed deduced, among which stands out immunity from
civil jurisdiction and tax immunity; in Italy, the immunities derived from international law,
In light of the rank that international law has in the domestic legal system, they tend to be positioned in a
higher than the Constitution, and perhaps even superior to fundamental rights
constitutionally guaranteed to all individuals, including the right of access to a judge (art.24
Cost), when it comes to pre-existing immunity to the Constitution.
The Holy See is the supreme governing authority of the Catholic Church and, at the same time, the supreme
political authority of the State of Vatican City, founded by the Lateran Treaty of 1929,
that is, before 1870, of the Papal State. International subjectivity was recognized to the
Holy See even when (in the period 1870-1929) it did not govern any territory and does not appear
therefore closely linked to the governance of a territory that is nonetheless guaranteed to the Holy See
from the Vatican City State, the smallest state in the world in terms of area (0.44
kmq) that by number of inhabitants (in October 2007 there were 556 citizens, 249 residents not
citizens and 476 inhabitants); its official form of government is the absolute monarchy headed by
Supreme Pontiff, who has the fullness of legislative, executive, and judicial powers. The security and
public order is guaranteed by the Swiss Guard, founded in 1506, and by
Gendarmerie Corps, established in 1816, while the police forces of the Italian State control
the access to St. Peter's Square.
The international subjectivity of the Holy See is manifested in the conclusion of agreements.
international agreements both bilateral and multilateral where the most notable are the 'Concordats', with which
Rules are established regarding the treatment of the Catholic Church in the territory of the counterpart.
state; as for the second, it is a contracting party to the Geneva Conventions of 1949 on victims
of the war and related Additional Protocols, of the Vienna Convention of 1961 on relations
diplomatic, of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons, of the Convention
of Vienna in 1969 on the rights of treaties and the New York Convention on the Rights of the Child
from 1989. The right to immunity from civil jurisdiction and to the privileged is also recognized.
regularly expected from foreign States; finally, it participates, like the States, in conferences and
international organizations (as an "observer" without voting rights at the United Nations and at
Council of Europe) and maintains diplomatic relations with most existing states.
On February 11, 1929, Italy and the Holy See signed the so-called 'Lateran Treaties', namely the
Lateran Treaty (with an attached financial convention) and the Concordat: the Treaty, still
in effect, aimed to put an end to the 'Roman Question' that arose with the capture of Rome by
of Italy (1870) and was concluded 'to ensure the absolute and visible independence of the Holy See,'
to guarantee it an indisputable sovereignty even in the international field; the Concordat has been
subsequently modified by an Agreement signed in Rome in 1984.
As far as jurisdictional immunity is concerned, in the Tucci ruling of 2003, the Court of Cassation
he excluded that Vatican Radio is a 'central entity' of the Catholic Church and in particular that 'does not
"interference" corresponds to jurisdictional immunity, thus explicitly departing from its
previous ruling Marcinkus of 1987; had concluded by qualifying the Institute for Works of
Religion (I. O. R) as the "central entity" of the Church, in favor of jurisdictional immunity of
some of its executives who had been accused of committing crimes on its behalf.

17
 Section 4–Individuals
The central problem of humanity is not how to regulate the conduct of states, but how to regulate the
universal coexistence of individuals, understood as natural or legal persons operating in their capacity as
private, states are the historically contingent instruments but still today suitable to ensure
the political obedience necessary to govern and protect individuals and in regulating the
state conduct, international law regulates how individuals should be governed
in the absence of a universal higher authority. In the past, the individual was protected by the law.
international only insofar as he was a foreigner, that is, to the extent that he was a citizen of another State and
on the assumption that damage inflicted on a foreign national is equivalent to an offense against their national state,
or to their sovereign; therefore, in classical international law, individuals were not subject
international and did not directly regulate the conduct of private individuals, who remained subject to
exclusively to the domestic law of their respective States. Individuals were "objects," rather than
subjects of international norms, in the sense that their interests could be safeguarded by law
international only to the extent that the respective States decided at their discretion to protect them
against other States; the judicial subjects were only the States, the only ones to whom the norms
international norms were addressed establishing rights and obligations, even if international norms
they dictated to the States the behavior to adopt towards the national individuals of other States.
With the 'densification' of the world population, typical of today's globalized world, it has become
inevitable for states to create international norms that directly impose obligations on the way
to govern individuals and assign, so that those obligations are respected by each one of them
yes, individuals themselves directed to enforce against the infringing States. Individuals are subjects
international, just like, mutatis mutandis (change the things that need to be)
Change), the citizens of a State as the legislator, which is an entity distinct from the recipients of the
norms, thus establish.
The international standards that grant rights to individuals are primarily those regarding rights
human: consider the right to life, the right to a fair trial, the right and respect for life
private and family life, the right to freedom of expression, and so on; such norms are today
contained in international treaties, impose an obligation on the contracting States to comply with the
rights stated here and is assumed by each State towards every other contracting State and not in
against the individual who can take advantage of it. However, the rules in question attribute to individuals
not only substantive rights but also procedural rights conferred by
applies not only to individuals but also to legal entities, commercial companies, associations
private or interest groups and it concerns independent rights of appeal to international bodies
competent to rule on the possible violation of the right invoked by the individual by
a state, which can be, and often is, the national state of the individual. Significant is
the International Court of Justice, which stated in the LaGrand judgment of 2001 that
in the context of the Vienna Convention of 1963 on consular relations, the obligation imposed
from art.36, par.1, to the State of residence of a foreign citizen, arrested there, to inform
promptly the consular authorities of your national State as the equivalent of a 'right
"of the individual," an opinion reiterated by the same Court in the Avena ruling of 2004.
Regarding obligations, there are international norms, both general and treaty-based, that seem to prohibit the
individuals, both private and state bodies, to commit international crimes and in this sense they
clearly pronounced the Nuremberg Tribunal in the 1946 ruling against the main
Nazi criminals when he stated that international law imposes 'duties and responsibilities on
individuals on par with States" and that "only by punishing individuals who commit such crimes
norms of international law can be implemented”; this opinion has been reaffirmed in more recent times
recent decisions from the International Criminal Tribunal for the former Yugoslavia, starting from the Tadic judgment of 1997.
It is doubtful whether a similar reasoning is justified with regard to the treaties that attribute to the
private entities, primarily enterprises, the power to initiate international arbitrations against States
foreigners for violation of international norms on the treatment of property interests
foreigners; moreover, the disputes regarding investments, concerning the treatment of foreigners,
18
they are placed in the traditional groove of inter-state relations. Then there are the rules that govern the
employment relations in international organizations contained in statutes and internal regulations
are adopted in accordance with the founding treaties of international organizations and therefore have
an international origin; from this rights and obligations derive from international norms and
they presuppose the international subjectivity of officials. An opinion is that the standards on
the employment relationship of international officials shall fall under a 'dedicated' organization of the
organizations, distinct from both international law and state laws, and linked
to their internal and international subjectivity. The directly 'applicable' norms of law
of the European Union, as well as the community rules that allow individual individuals (mostly
companies) to appeal to the Court of First Instance and the Court of Justice of the European Communities
ultimately descend from international treaties and seem to presuppose subjectivity
international rights of individuals; but even in this case, the most widespread opinion is that they are rights and
obligations arising from community law configured as an autonomous legal order, rather than from
international law.
Acknowledging the international subjectivity of the individual does not necessarily mean diminishing the
the role of States and the favorable opinion for the emergence of a more 'humane' world government that
superior to the historically failed experience of States, understood as centers of arbitrary power,
selfish and warlike; rather, it is necessary to induce existing states not to step aside, in favor of
inevitably other centers of private power, and to exercise their authority in favor of
universal community of individuals. States can, and must, be transformed by individuals.
from the inside and from the bottom through the mechanisms of political legitimacy so that they are always
more willing to exercise their governing authority, that is to spend their legitimacy
politics, at the service of all humanity; different is the role that individuals can play in
promote from outside the states and from above the creation of international norms more suitable for
to orient the behavior of States towards the same goal.
Multinational Companies
There is debate about whether multinational corporations are international subjects: it is commonly believed,
assuming the 'classic' model, that a multinational company is a company that operates
through a 'parent' company based in one State and several subsidiaries in multiple States,
each of which is constituted and governed by the law of the State in which it operates. The legal control
of multinational corporations is therefore primarily of the territorial state, even if economic control is
of the parent company, in favor of international subjectivity it is argued that at least the most
important entities today are more powerful than states also because they operate and influence decisions
policies of a large number of States and the hypothesis is being raised that by now 'multinational corporations govern the
world" presumably more than the States if not in place of the States (and democracy). Some, the
c.d. 'credit rating agencies' (CRA), among which stand out
Standard & Poor's, Moody's Investor Service, and Fitch Ratings, all three headquartered in
United States, judging the credibility and solvency (as well as that of private enterprises, including banks)
of the States and thus determine their fate, accelerating or slowing down their insolvency and have
sparked reactions in public opinion and in the States, recently in Italy and by
of the European Union by also activating national judges
Undoubtedly, an international discipline for international businesses is felt today as
particularly necessary and urgent if one considers that they can easily circumvent the
national legislations and violate human rights with impunity, simply by relocating their offices or
subordinating their establishment in a State particularly favorable from a criminal standpoint,
fiscal and environmental. A multinational company can be much more influential, in terms of power,
of a micro-State, but it does not do what a micro-State ordinarily does, namely govern, that is to say
to enact laws, judgments, and execute coercive orders. Aside from the radical difference with States, it is
it is difficult to acknowledge the international subjectivity of multinational corporations as unitary entities, even
because as a rule they do not legally constitute a unit, being composed of numerous
national societies each endowed with their own state subjectivity. Among the international norms,
19
all parties that mention legal entities may recall article 137, paragraph 1, of the
Montego Bay Convention of 1982 on the Law of the Sea that prohibits 'legal entities' from
appropriate the area of marine funds, the rights and obligations attributed by bilateral treaties on
investments to 'investors' intended as both natural and legal persons, as the matter
today widely debated and taking into account that the Statutes of the International Criminal Tribunals at
at the moment they are limited to the responsibilities of individuals, the obligations that the law
International customary law would also require legal entities to commit crimes.
international. The rights and obligations provided for in the agreements would be of international law that
multinationals conclude agreements with States for the local exploitation of natural resources and
it would concern true international agreements, but the prevailing doctrine is little inclined to
sets these agreements up as true international treaties and tends rather to consider them as
private law contracts to which state norms apply and, if necessary, norms and principles
international provisions that the parties have explicitly referenced in the contract; however, there are rules of
international standards applicable to multinational companies, known as 'codes of conduct', that
they have no binding legal value falling under the so-called soft law and recommend to businesses
to respect some fundamental human rights established by the main applicable international instruments
for the States, such as the Universal Declaration of Human Rights and UN treaties on human rights;
they may remember the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy
social policies of the International Labour Organization (ILO) of 1977, the Guidelines for the
multinational companies of the Organisation for Economic Co-operation and Development (OECD)
OECD) from 2000 etc.
For years now, we have been talking about "corporate social responsibility".
indicate the responsibility of companies, especially multinational companies, are not in
confrontations with shareholders but also with the wider community. It is a strategy
in marketing and the method tends to channel marketing in order to make business just as
thank you to the message spread by the United Nations and other governmental and non-governmental organizations
governments in favor of businesses that comply with standards.
The remedies against their abuses in the practice of foreign investments are the main problem and
examining them, it becomes even more evident how multinationals are not holders of true and proper
international obligations for whose violation they may be held accountable at the international level and how the
protection from their abuses passes through the States and is guaranteed, even if limited, by rights and
obligations that States have in their relations and the remedies are:
A) To hold multinational companies (subsidiaries and parent companies) accountable before the judges of the
Home state or host state or a third state:
The remedy is rather unlikely, although not impossible, because the practices are various:
The eventual liability of a local subsidiary does not in principle extend to the parent company.
to the multinational company as a whole, unless it is proven that the subsidiary has
acts as an agent of the parent company and neither does the company generally answer for the activities of others
outsourced companies, which are often the ones that abuse the standards the most
international on human rights and environmental issues; (2) the host country may be, in the case of a country
developing, lacking legislation for the respect of human rights and the environment and not
to be part of treaties on human rights that obligate him to enforce them on enterprises operating within the
its jurisdiction and this can also happen with the intent to 'tear away' multinational companies from
other developing countries; even when it has adequate legislation and is bound by treaties
regarding human rights, the host state may find itself in a position of being unable or unwilling
pursue the abuses of multinational companies operating in its territory, given the disproportion of
power between the two parties; (3) the home state usually avoids applying its legislation to the
own companies operating abroad to avoid exposure to extraterritorial application and
Legal imperialism and in the home state, victims usually have to face costs.
prohibitive in promoting a civil action where they may not see their recognition
legitimation to act in court.
20
B) Call the host and/or home States to respond for lack of due diligence in the
control of multinationals, respectively in their own territory or abroad: this
remedy is linked to the positive obligations of States in the field of human rights, particularly to
"duty to protect", and it can be invoked before international control bodies and
There is no doubt that the States bound by these treaties also have the positive obligation to adopt
measures so that individuals within their jurisdiction, including businesses to which they are granted
in outsourcing essential public services, they should not act in violation of what is prescribed by
such treaties. The UN Special Rapporteur emphasized the state obligations of due diligence.
but the power does not extend extraterritorially, and therefore is valid only for the host states, the
which are often not bound by human rights treaties and have a poor capacity anyway
to enforce human rights within their jurisdiction, especially when the counterpart is a
multinational. Nor is the duty to protect generally established by international law
customary, as correctly noted by the United Kingdom, and therefore depends from time to time
from the State involved and the treaties that bind it.
C) Call to respond the States on behalf of which the multinationals have acted
damage caused by it: this remedy falls within the classic inter-state logic and does not pose
particular problems because if a company acts as an organ, de facto or de jure, its conduct is
attributable to a State, there is no doubt that the State is responsible at the inter-state level; here the State
he answers for his own actions, while the remedy consists of calling him to answer for actions that are not his.
but rather of individuals, but to the extent that it has not taken appropriate measures to prevent and repress them
harmful conduct.
D) Activate media campaigns, especially by public opinion and NGOs,
naming and shaming to "stain" the reputation of the responsible company so that
sanctioning it effectively by causing a loss of market and profits: this remedy has proven to be
effective in the past but today it is less so, both because public opinion is less engaged in
anti-multinational campaign, both because the media themselves are increasingly under the control of
small and powerful multinationals, both because the companies have immediately started and promoted,
as a counter-strategy, the social responsibility of the company, both finally because NGOs and
multinationals are now increasingly interconnected and tend to form partnerships
whose transparency is at least questionable while the suspicion grows that the collaboration is to their advantage
use and consumption, the first conferring social reputation to the second conferring financial resources
all first.
It is clear from the above that the methods used and usable to reduce abuses
multinational enterprises essentially go through international obligations of States,
obligations that States have both towards their own bodies and towards private enterprises to which
they entrust public functions, both with respect to the protection of people in general within their
jurisdiction of private enterprises operating therein.

Section 5-International Community

First of all, no international norm grants rights or imposes obligations on the
international community as such; it is not a legal subject distinct from its members but
however, the problem has significant implications for the nature of international law and in
specifics on the ratio of various international norms currently in force aimed at protection
"fundamental values of the international community" or placed "in the interest of humanity." It is
It is important to note that the term 'international community' as used today in practice and in
doctrine, refers to multiple meanings the ambiguity arises from the fact that both the term "community"
the term 'international' is polysemic; moreover, it has become a cliché.
the addition of the expression 'international community' of the term 'as a whole'
the community as a whole) and it is legitimate to ask what further meaning it intends to express.
A) Community of States: in a first, more traditional sense, international community refers to
understand the system of States, and there would be a 'system' of States when two or more States have
21
sufficient contacts to make the behavior of each one a necessary element in the calculations of
others; essentially when one person's decisions cannot be made without considering the
reactions of other states and in turn have an effect that influences others' decisions. A
"society" of states would instead indicate a deeper level of interaction among States,
precisely a system of States in which common interests and values are pursued through
common institutions. In current international law to the 'international community of States in its
"together" refers to Article 53 of the 1969 Vienna Convention on the Law of Treaties and is here
that the term 'as a whole' seems to allude to the idea that the totality of States is something that goes
distinct from their authentic sum.
B) Community of International Subjects: in a second sense, the 'international community'
Indicate the set of existing international subjects, and thus it would include not only states,
but also international organizations and individuals; the expansion of the circle of subjects
internationally as well as to the States would determine not only the ownership of rights and obligations
international extended to organizations and individuals but also their determining role in
creation of international law. States, taken as a model of international subjectivity
they are both creators and recipients of international norms, as well as responsible for
violation of the rules to which they are subject. In order to allow for greater inclusivity
diverse current international norms refer to the "international community" without specifying
that concerns the community of States. The purpose is clearly to broaden the concept of community.
international entities different from States, even if it is almost never indicated what they are and
for what purposes they are included.
C) Community of international 'actors': in a third meaning for 'international community'
it refers to the set of international actors, that is, all entities that "participate" in the so-called life of
international relations and influence its way of being and evolving where they would be part of it
not only states, international organizations, and individuals, but also other entities such as the
International Committee of the Red Cross, NGOs, and multinational companies; also to entities that
they are not formally international subjects thus a significant position is recognized
in the international community, whether for the quality of the role played or for the necessity that arises
called to answer for violations of international law. Here too, the term "in the more so"
it seems intended to emphasize that the overall international community is not limited
to the States.
D) Universal Community of Individuals: in a fourth sense, the 'international community'
indicates the community of individuals (the so-called civitas maxima), that is, all of humanity, without considering
of its political division into a multitude of states, and note that the term 'humanity' can
assume different meanings depending on whether it refers to the physical set of all human beings
that live on the planet, or to the psychological-moral sense of sharing the common destiny
human or still to the legal centrality of the value of the human person pursued by the norms.
When we talk about 'humanity', we tend to talk concurrently about 'universality' in the sense of a
overcoming the political division of the world into a multitude of states; from a standpoint
historical-ideological, the two terms, as used in modern international law, are related to
to Jewish-Christian theory and Greek philosophy.
E) Global Solidarity Community: in a fifth sense, the 'international community' refers to the
sense of a single supportive family capable of assisting its members wherever there is a need;
In this sense, the international community tends to understand anyone who can help other human beings.
affected by natural or humanitarian disasters. This would involve states, NGOs, businesses.
multinational companies and individuals, and in this sense, the appeal of the former Secretary General is formulated
United Nations Kofi Annan in a speech at the NGOs Conference in 1999.
F) Inter-state authoritarian community: in a sixth sense, the international community is
indicated with a capital letter to identify it as a separate entity and differentiate it from the
the sum of its individual members would be an entity through which the 'forces' are expressed
"prevalent", particularly the stronger states, capable of imposing and guaranteeing international law.
22
as a whole through "constitutional principles" superior to custom and treaties, or
the less public law obligations known as erga omnes to make it possible for the
protection of goods and fundamental values that otherwise, without a collective action of the States,
they may be deemed non-susceptible or otherwise devoid of protection. Pressure is applied to individuals.
first and fundamentally for 'systemic' and informal reasons, and it is in this minimal sense that
we mean the United States, in the sense of being in a system from which no individual
it may escape, while rights and obligations, even if of a collective nature, must go
verify one by one based on the theory of international sources rather than being deduced from needs
logical.
G) Unilaterally represented Universal Community: there exists a seventh meaning according to
whom the international community would "decide" or "act" through certain States or certain
international organizations or through the United Nations Security Council such as
For example, on March 23, the Secretary General of NATO announced NATO's decision to attack.
the Federal Republic of Yugoslavia, due to serious violations of human rights
orders from the Belgrade government in Kosovo, stating that "this military action is intended
support the political objectives of the international community." Many States, including Italy, supported
that NATO was simply carrying out the will of the 'international community'; in reality,
many States had strongly opposed military intervention, including the Russian Federation,
China and India. In these cases, the "international community" does not refer to the community of states,
but rather the community of individuals as interpreted by the States or organizations
international organizations that assume themselves as their representatives; the international community must
corresponding to an objective reality and not to a unilateral claim of universal representation.
Is it true that there exists an international community of states as the only entities capable of governing a
territorial community that no other entity or international actor has such ability for the simple
reason that lacks the necessary political legitimacy to exercise coercive government powers over
individuals. States monopolize the 'legitimate' use of force, taking it away from private individuals, thanks to the
political bond that exists between rulers and the ruled, a bond that always depends, at least in the long
period, of some form of control and mutual acceptance. The concept of a community
The international state must therefore be maintained and a law that regulates it must deal with the
relations between States as such, or rather the behavior of individual States towards one another
States that are in relation to individuals; the community of states is therefore the community of entities that,
stripped of political consent, they govern and mutually guarantee a government of their respective
according to common standards.

Chapter 2
Section 1-General International Standards

International Custom
In this chapter, we will look at how the norms can be applied in practice.
within the States, that is, like the other states, in the absence of a higher, universal authority,
they should put their governmental authority, supported by political consent, at the service of respecting the law
international by individuals and their own bodies.
To indicate how international norms are created, that is, to establish 'from where' and
how they come into existence: we talk about 'sources' of International Law. Therefore, it is on the basis
of the theory of sources, the jurist establishes whether an international norm exists or not and
precisely establishes, from what moment, or in the presence of which circumstances, the
the norm detaches itself from the direct political competition aimed at creating one norm rather than another and
becomes the objectively valid law.
23
We can take as a reference point to identify the sources of International Law.
Article 38 of the Statute of the International Court of Justice, which in paragraph 1 of the aforementioned
the article indicates in order the treaties (letter A), the customs (letter B) and the general principles of
rights recognized by nations only as "subsidiary means" useful for the search for
sources in the strict sense, judicial decisions, and doctrine (letter D).
Although Article 38 paragraph 1 of the Statute of the International Court of Justice precedes
in the order of enumeration the international treaties, analyzing the individual international sources is
It is appropriate to proceed in reverse starting precisely from the Custom. It is necessary to examine the sources in
general terms and observe that among international sources, customary law undoubtedly occupies the
central point. International law is essentially customary, and this is due to
of the absence of a universal authority, in fact, lacking a universal legislator who monopolizes
the function of production of norms, International Law can only arise primarily from
from the expectation that each member behaves as most members usually do
behaves. The centrality of sources means that while other international sources are
mandatory, because that is how custom establishes, custom itself constitutes a phenomenon
a spontaneous formation, whose legality does not depend on other sources, but rather on intrinsic sociability
of the law, or rather from the fact that the first fundamental (or 'constitutional') rules of every community
they arise from the simple fact that each member feels compelled to behave in such a way as
mostly behaves like the majority of other partners. Custom should be considered in the
hierarchy of international sources, considered as a primary source, while treaties should be regarded
as a secondary source: the obligation derives from custom, while the obligation
the custom does not derive from a treaty; this means that a treaty is mandatory for the parties
because traditionally the majority of States (and not just the parties to the treaty) want it to be so
according to the customary norm 'pacta sunt servanda', while custom is not mandatory
not for the fact of constituting an agreement, but rather for the intrinsic sociality of the law. It is customary, according to
a pyramidal image, place the independent source above and the dependent source below: in
In this sense, customary law is a 'superior' source and the other sources are 'inferior'. This does not
prevents treaties from prevailing over customs in case of conflict if, again,
thus the custom establishes; it is for this reason that it is appropriate to start from the custom and then
gradually move to other international sources.
Since international custom is created spontaneously by the assembly of other states, in
International law can be defined as the law created by the 'universal states', meaning understood in
they together impose themselves on the states 'Uti Singuli', that is, understood individually; therefore we can say
that International Law binds all international subjects as individuals regardless
from being strong or weak and regardless of the greater ability of the stronger states to influence the
creation of norms. Therefore, all states agree to be legally bound by the
custom; in any case, judges apply customary international norms and enforce them.
to dismiss (that is, without worrying about demonstrating the) consent given by their state or by others
States.
International customary law is unwritten international law, created by states and binding.
all states consist of two elements, one objective and the other subjective, traditionally expressed
with Latin terms: a) Use or duration or practice, that is, a constant and uniform behavior from
part of the generality, understood as the majority and not necessarily the entirety of the states; B)
The opinion of law and necessity, that is to say, the belief in the obligation of that behavior.

24
This is the so-called dualistic theory of custom, as it indeed admits a norm.
customary only when both elements are present and this seems accepted
from article 38 par.1, letter B of the Stat. C.I.G which defines custom as evidence of practice
generally accepted as a right: the terms 'general practice' would refer to usus, while the terms
"accepted as a right" would refer to the opinio juris. From the dualistic theory, it follows that to have
An international customary norm must be demonstrated a) that the presumed norm is being followed
in most cases and by most States and b) that its recipients respect it precisely
why they consider it as legally binding and not (or only) for other reasons. The first
the requirement ensures effectiveness and prevents the assumption of existing rules that do not operate in the
reality even if they may seem desirable or necessary, if this requirement were to be lacking
they would have rules that are indeed thought of (or even hoped for) as legal, but that are not
done followed by the recipients as a whole; the second requirement, on the other hand, ensures that it is about
legal norms and not of any other kind (social, moral, and religious) and therefore in the event that it were to
to meet this requirement, there would be rules that should be respected, but not as legal norms,
rather for reasons of convenience, opportunity, and chance, and thus for these reasons the
dualistic theory is preferred over opposing monistic theories that require only usus.
or the opinion of law and necessity.
Detection of International Custom
It is necessary to clarify, examining the usage, which acts form the custom and at the same time the time.
(duration) that is required, so that a customary rule can be considered formed.
A) Material acts: according to a minority opinion, customary practice would consist of
exclusively of Material Acts, in particular of Coercive Acts carried out by States.
Not only verbal claims or assertions would be irrelevant, but also the protests of others.
States. States that intend to protest against the behavior of others would have no other means.
to adopt in turn material acts of opposition, such as countermeasures.
B) Declarations: most of the doctrine believes that the declarations of states are also
containing claims or protests are standard practice. It remains to be established whether verbal statements must
it should only refer to those expressed in concrete situations, or, more generally, even those in the abstract, such as
for example, the statements made by representatives of states within organizations
international.
The statements made in the abstract can be considered more reliable regarding the ruling of
current law, as the state that carries them out is not pursuing its immediate interests;
allow for the configuration of the change in the existing customary law without necessarily
violate the current law and also have the merit of allowing to identify an applicable norm
to a specific case even in extreme situations where there is no established practice or the existing practice is very
is scarce or contradictory. The problem with statements made abstractly is that behavior
The objectives of states are usually far from what is stated. Abstract declarations have a
weight not only to confirm a practice that is compliant and objectively existing, but also when
the practice is absent or scarce, to evoke a legitimate expectation about the reactions that
They will likely follow a possible concrete behavior that differs. The distinction between
statements made in concrete or abstract terms are often less significant since a
a concrete declaration to be made by a state especially to reaffirm a principle
generally and, conversely, a statement could be made by states apparently in
abstract but actually in view of a specific situation that currently concerns them.

25
C) Resolutions of international bodies: the state declarations made during discussions within
International organizations should be distinguished from any resolutions adopted in that case.
of the Organization and not of the States. Some authors believe that they are practices of the body
only the resolutions and acts adopted by bodies of individuals, that is, bodies composed of people
that operate in total independence from their national states like the Secretary of the United Nations; they
he also believes that only the few resolutions that explicitly declare constitute 'practice'
to correspond to customary law, such as resolution 96 of the General Assembly of
United Nations of 1946 where it states that 'genocide is a crime under international law.'
The problem complicates if one takes into account the states' votes in the resolution: the individual vote is in itself
the practice of states and not of the body, but the resolution that eventually derives from it is practice
of the organ. However, it does not seem to us that a purely arithmetic reasoning is appropriate and
so we can say that both unanimous adoption and the individual vote in itself, beyond
the reasons that support it are therefore irrelevant.
D) National laws and sentences: in the past, some authors excluded that they constituted 'practice'
statutory the laws and national rulings, believing that only the practice of the Executive bodies
competent to enter into treaties and in general only the national acts carried out in the field of
international relations were the formative 'practice' of custom. Today, however, any act of
Any state body, as long as it has some international relevance, is considered 'practice'.
the formative nature of custom and therefore a law in principle is the practice of states solely by the fact
to have been issued, but its concrete application by judges and other bodies of the
the state is usually decisive in understanding its content.
E) Inaction and acquiescence: the doctrine holds, following the 1927 Lotus ruling of the Court
Permanent International Justice according to which acquiescence 'only if the abstention was
State motivated by the awareness of a duty to abstain, one could speak of custom.
"international" and that inaction and the silence of States can also contribute to the formation of
customary norms provided they are accompanied by the opinio juris regarding their obligatory nature.
F) International Treaties: the prevailing doctrine believes that they should also be regarded as practice
international treaties, in the sense that a large number of uniform treaties can be understood as
confirmatory from custom; multilateral treaties can be usefully taken into
consideration for the recognition of customary law (1986, Military Activities in Nicaragua).
G) Behaviors of individuals: it is excluded that the behaviors of individuals, in particular
of NGOs (Non-Governmental Organizations), are relevant practices, as they concern movements or
pressure groups whose aim is to induce a change in the existing law by the states.
B) Duration
If you agree that the practice should be consistent over time, it is not clear how much
time is necessary for it to be concluded that a custom has formed. The Court
custom should take shape, rejecting both the thesis put forward by the doctrine of 'custom'
instantaneous" (instant custom) that the thesis according to which custom would require a time
unforgettable; the current trend is towards increasingly shorter times and also less
relevance of the time factor.
C) Uniformity and Diffusion: the practice must be uniform, as well as constant, that is to consist of a
identical behavior of States and must be followed by a sufficient number of States. It is not
it is clear how many States are necessary for a customary norm to form but how it has
the House of Lords observed that 'a swallow (i.e., a single state) does not make international law'
26
swallow does not make a rule of international law). It happens that certain international norms
customary, such as that regarding maritime spaces or de facto nuclear weapons not
can only be followed by a few states. In the North Sea judgment, the ICJ has
espresso in a particularly restrictive sense requiring that state practice, 'including that
of the states whose interests are especially affected" is "very widespread and representative" as well
uniform.
Opinio juris and necessity: in addition to the practice of the majority of States, there must be a conviction from
part of the states themselves that such practices are legally binding and therefore international practice
they converge in believing that opinion is an indispensable element of custom. The opinion of the
The status must result from data and acts or objective documents such as statements, laws, state judgments, etc.
reason why it cannot be established by "identifying" subjectively with consciousness
of the international community. The usage pertains to the detection of an objective behavior, to
regardless of whether the behavior is followed for legal reasons or other reasons, while the opinion
it concerns the detection of the subjective behavior of the state and consists in verifying whether
the behavior followed or the position expressed has been followed or expressed with conviction
that the content of either one was mandatory under existing international law. The
The main reason for the requirement of opinion is to allow the distinction of the practice that is followed.
for extra-legal reasons (political convenience, moral or courtesy reasons, good neighborliness, etc.) and is not
intended to bind the states, from the practice that is instead followed as legally obligatory.
The element of opinion, however, raises several concerns; in fact, at the beginning of the process of
the formation of every custom must necessarily have a state that believes in its own
behavior is mandatory, while it is still not, and thus ends up initiating it
to the eventual process following which the obligation will be imposed thanks to the contribution of the generality
of other states. The logical paradox is overcome by specifying that the opinion is not only juris but also
necessity, that is to say it also applies when the behavior is not yet legally obligatory
but it is still socially and morally felt and deemed necessary. The problem is that the
practice accompanied by the conviction of moral or social duty does not always result in
a customary norm (ES: states may feel morally bound to assist other states.
poor or to consider that a norm requiring assistance to poorer states is desirable and
necessary, without implying that they are legally obliged to do so). The legal conviction
therefore tends at the beginning of the process of formation or change of habit, to blur
in the belief of duty either social or moral, or in the feeling that begins to spread
in the community of the necessity for a new customary norm to be established in the future, but the
the transition from the moral phase of custom to the legal phase occurs at the moment when the usus
it stands in contrast to the opinio juris. The opinio necessitatis serves to create a push towards a new right and there
it can contribute as much as the need for new regulations is evident to the majority of states, but by
it does not equate ipso facto to customary law.
General Customs
Customs generally bind all states, just as in principle all other subjects do.
internationally to the extent that it is applicable to them, and not only those who have participated in the
his training. Only if the custom were silent would it limit itself to binding those who participated in the
your training, its specificity lies in binding everyone and determining under what conditions some
acts, like treaties, bind only the contracting parties (pacta sunt servanda). Custom is
it also imposes on dissenting states, including those that have contested the rule from the very beginning

27
in which began to form (persistent objectors); furthermore, it is undeniable that as soon as a
new state the pre-existing customary law applies automatically also in its
confrontations.
Particular customs
Customary norms, so-called, have also been admitted in international practice.
"particular" or "special", in the sense of binding a limited circle of states. The customs
Particularities can be of a geographical type when they bind two or more related states.
the belonging to the same geographical area, or modifiers (or integrators) of an establishing treaty
of an international institution, when they bind only the member states of the organization.
In the first sense, the particular customs, which may concern only two states or an entire
geographical areas have been admitted in abstract; in the second sense, the CIG has admitted that the
special procedures require the vote of 5 permanent members of the Security Council for the
deliberate on non-procedural matters.
A customary rule that is contested by many states cannot form, and this indicates
that customary law is essentially general, not only when it prescribes a norm of
conducted to the generality of states, but also when it establishes under what conditions and possibly
with which rank a particular custom produces its effects.
Codification and development of international customary law
Article 13 of the United Nations Charter gives the General Assembly the power to
provide for the 'coding' and 'progressive development' of customary law and with the
resolution number 174 of November 21, 1947, the Assembly established, as its body
supplement, the International Law Commission, which includes legal experts
international representatives who sit individually and do not represent their respective states, with the task
to provide for the 'codification' and 'progressive development' of customary law. The
The commission is composed of 34 members, elected for 5 years by secret ballot from the Assembly.
General. From 1947 to today, the Commission has prepared numerous drafts of conventions of
codification, particularly in the field of international diplomatic law. An agreement of
codification only binds the contracting states, it can also bind third states where it is shown that
It effectively encodes customary law. The purpose of the 'progressive development' of law
the customary international practice is to ensure that a treaty includes provisions that, although
Although they are not currently customary law, it is hoped that they will become so in the future. As for ...
regarding treaties, even if earlier, prevail over customs by virtue of the specialty of rationae
persons. The problem is that the prevalence of the previous treaty is less certain than the treaty
has instead aged and no longer reflects customary law, and it is therefore clear that the problem
worry because coding agreements, on one hand, ensure greater legal certainty,
on the other hand remain unchanged over time, at least until they are modified by formal amendments, and
they do not follow the evolution of customary law nor the generalized practice of the states that came after
upon their entry into force. A reasonable response is to consider that the subsequent custom
prevail over the previous codification agreement where it is evident that the states parties to the agreement have
participated in its formation or have considered it applicable in their relationships
reciprocal.

B) General Principles of Law Recognized by Civilized Nations

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The 'general principles of law' constitute a key category for the construction and
understanding of the entire international law and this explains why they have lent themselves to the most diverse
interpretations in doctrine. The heart of the problem is whether 'natural law' should be part of
positive international law, that is, whether there are principles that are so elementary, so 'natural' and
indefatigable, and therefore so universal, that they must be presumed applicable regardless of the
will of the States and the formal procedures for the creation of international law.
The expression "general principles of law recognized by civilized nations" dates back to the drafting
of article 38, paragraph 3, of the statute of the Permanent Court of International Justice. A
An advisory committee of jurists, composed of ten members, was appointed in 1920 by the Society of
Nations to draft the Statute of the Permanent Court of International Justice, the establishment of which is
The operation was provided for by Article 14 of the Society Pact; the president of the Committee, the
Belgian Descamps proposes to add to treaties and customary law the 'norms of law'.
international recognized by the legal consciousness of civilized nations" in order to prevent that the
In the absence of applicable customary or contractual norms, it should refrain from making
justice (non liquet). The term civil was routine at the time, as a legacy of the idea that law
international law was nothing more than the 'law of civilized nations' typical of the 19th century but, seems
Today, especially since 1945 and after the decolonization of the 1960s, it is anachronistic and offensive.
Among the many theories that have been developed to explain the legal meaning of general principles
of rights recognized by civilized nations, that which can be attributed to the opinion of Lord should be preferred.
Phillimore states that these would be principles common to the internal legal systems of the majority.
of the States, to be applied supplementarily in the absence of other contractual and customary rules. It
it mostly deals with principles of justice and legal logic that are so elementary and so inherent to the idea of
right to be presumed to exist in every legal system, their evocation is frequent
in Latin, as they pertain to the rules of Roman law and canon law collected by jurists
medieval, like the principles "pacta sunt servanda", "rebus sic stantibus", "qui tacet consentire"
it seems", "no one can be obliged to do the impossible", "not twice for the same thing", "no one is a judge in their own case" etc.

The central problem is whether the general principles of law recognized by civilized nations constitute
an independent international source, distinct from both custom and treaties, and in case
affirmative what rank they occupy in their relations with the other two sources. We can affirm that
Given their disciplinary function, the most basic needs of human beings, the 'principles' of law
they have always corresponded not only to legal principles but also to a basic sense of justice
which is at the basis of law and is reflected in the idea of the minimum 'humanity requirements'; in this
the sense and general principles of law are understood not only to fill gaps in positive law, but also
to establish universal standards of humanity and they are recognized by 'civilized' nations precisely because
they establish the minimum principles of humanity, or human civilization understood as a whole. The principles
general principles of law can be configured as autonomous sources of international law on
basis of customary international law and within the limits established by it. Understood this way, they can
considered as autonomous sources of international law a) the general principles of law
objectively verifiable in the majority of state systems, regardless of the differences
legal cultures and traditions of the States, b) however, the legal systems of States that are excluded
the international community as a whole does not consider "civilians" in the sense of pursuing
values felt as common to humanity, particularly because they are universally condemned to
United Nations, c) to the extent that they are transplantable into international law in the absence of
objections of the international community as a whole to their application as a right

29
international despite their internal origin, provided they do not contradict regulations
customarily, and therefore with the objectively existing practice deliberately aimed at regulating the
relations with other States, and with treaty norms.

Section 2 - International Treaties

A) Stipulation of Treaties
International law consists, in addition to customary law and general principles
by law recognized by civilized nations, including treaties.
The stipulation of treaties allows states to regulate their specific interests in the desired manner,
when necessary and through written rules that ensure greater certainty and precision of
content regarding customary law and today states conclude an innumerable amount
of treaties, among which multilateral treaties aimed at regulation have increasingly become significant
global issues, in various subjects and in particular in subjects related to
legal discipline of individuals.
An international treaty is defined as the meeting of the wills of two (bilateral treaties) or more
of two (multilateral treaties) States, or other international subjects, producing legal effects
binding for the contracting parties within the limits and based on the consent they have provided to commit.
a contract can also be formed through acts of offer and acceptance made at different times,
as happens with the 'exchange of notes', which is precisely an agreement that is formed if and when one
state responds to a settlement offer received from another state. The binding nature of treaties
it descends from the customary international norm 'pacta sunt servanda', to be understood in the sense
which according to the generalized practice of states and their legal conviction, that is according to the States
as a whole, the treaties that exist between two or more states considered individually must be respected by
the latter. Acts that do not express intent cannot be classified as international treaties.
in the realm of obligations, such as declarations and political statements, gentleman's agreements
concluded between Heads of Government, the so-called "non-legal agreements" (e.g. Final Act of Helsinki of
Conference on Security and Cooperation in Europe (CSCE, now OSCE) of 1975); I am not
acts that are not attributable to international subjects, such as agreements, can be qualified as treaties
between member states and a federal state, or administrative divisions belonging to different states,
both internal and with foreign states, when they are not attributable to the federal or unitary state.
The qualification of their nature as "objective," or even erga omnes, that is, not characterized by
classic bilateral relations between the contracting states but from obligations that are assumed regardless
from the reciprocity with a specific counterpart, obligations that each contracting State undertakes in
compared to all other contracting states and all individuals who fall within the scope of
application of the treaty.
The set of customary international norms that regulate the conclusion, effectiveness, the
the validity and any other matters of treaties constitute the 'international treaty law', which is
subject of an important codification Convention: the Vienna Convention of 1969 on
law of treaties, in force for 111 states, including Italy, since January 27, 1980.
On the objective and subjective level, the Convention does not apply to treaties concluded between parties.
international agreements other than those of the States (art.1), treaties not concluded in written form (art.2, letter A), to
issues related to succession between States in treaties, to international responsibility, and to
effects of war on treaties (art.73). The Convention applies, on the other hand, to the treaties establishing

30
international organizations, as concluded between States and on a temporal level, the Convention
it does not apply to treaties concluded before the entry into force of the Vienna Convention itself.
Another Convention on the codification of international treaty law of a character
In general, but with less success and still not in effect, is the Vienna Convention.
of 1986 on the law of treaties between States and international organizations and between organizations
international. The convention does not differ from that of 1969 except for some points of
readings related to the specific nature of international organizations.

Procedure for concluding in "solemn" form

International treaties can be concluded in any form, oral or written, and following
any type of procedure, even through a simple 'supplementary statement' or through the
"minutes" of a meeting between the Foreign Ministers of the interested States.
The Vienna Convention, for its part, as mentioned, only applies to treaties in written form.
written and the States often follow a stipulation procedure that is commonly referred to as 'in
"solemn form" to emphasize that it is the most complex procedure and to distinguish it from
alternative procedure "in simplified form".
The solemn procedure consists of four phases:
a) Negotiation: the negotiation is conducted by the representatives of the States, the 'plenipotentiaries', that is
the people who a) produce appropriate full powers or b) "for whom
results from the practice of the interested states or other circumstances" under Article 7, paragraph 1, letter a
of the Geneva Convention of 1969. Full powers are considered appropriate when they are conferred
from the competent authorities based on law or internal practice, authorities that are usually, as in
Italy, the bodies of the Executive. According to Article 7, paragraph 2 of the Convention, they are representatives of the
state by virtue of their functions: Heads of State, Heads of Government, and Foreign Ministers 'for all
the acts relating to the conclusion of any treaty; the Heads of Diplomatic Mission "for
the adoption of the text of a treaty between the accrediting state and the accredited state"; and the
representatives of States at organizations (or one of their bodies) or international conferences,
for the adoption of the text of a treaty in that conference, organization or body. If the person
cannot be authorized to represent a state for the purpose of concluding the treaty, every one of its
The act has no legal effects, unless it is subsequently confirmed by the same State.
The negotiation phase concludes with the adoption of the text, pursuant to Article 9 of the
Convention takes place, in the case of an international conference, by a two-thirds majority of the
Present and voting states, and in other cases unanimously, unless the states provide, with the
same majority, the application of a different rule
B) Signature: the signature, or initials (that is, the placement of initials), or even the signature to
referendum, which is the signature subject to the approval of the competent national authorities, by
the plenipotentiaries concludes the negotiations and carries out the function of text authentication, which
considered "certificate as authentic and definitive" (article 10) and therefore modifiable only in
following the opening of new negotiations. In the formal procedure, the signature does not bind the
a party to the treaty. A state can, in other words, sign a treaty without being obligated to comply with it, and
not even to ratify it. However, the Vienna Convention links some minor obligations to the signature.
General obligation for the signatory state: the obligation not to deprive the treaty of its object and purpose (art. 18) and
the obligation, as contained by the parties, of provisional application of the treaty pending ratification.

31
C) Ratification and accession: ratification or accession is the (free) manifestation of will by which the
the state is bound on the international level, that is, in relation to other States. Ratification is discussed for
the states that bind themselves after taking part in the negotiations, while the term accession (accession in
English) refers to States that did not participate in the negotiations and that are bound by the treaty.
after its drafting and coming into force. Adherence is obviously possible in treaties
multilateral and when it is allowed by the treaty, that is, when it has been anticipated by the States that
they participated in the negotiations. The state that joins not only finds the treaty already prepared and
has no other option but to accept it as it is or give it up, but finds already established in the treaty
also the possibility or not of adhering. A form of adhesion is admission into an organization
international, as governed by Article 4 of the United Nations Charter.
The internal competence to ratify and more generally to conclude treaties is left by law.
international of States, which usually regulate it through constitutional norms.
In the Italian legal system, ratification is the responsibility of the Head of State, with the countersignature of the minister.

proponent, who assumes responsibility (art.89 Cost.). Authorization is required for treaties of
political nature, for the treaties involving changes to laws or changes to the territory, for the
treaties that involve 'financial burdens' and for treaties that provide for 'arbitrations and regulations'
judicial” (art. 80 Const.).
D) Exchange and deposit of ratifications: with the exchange or deposit of ratifications, the treaty
perfects and enters into force. An agreement can apply on a 'temporary basis', pending its
entry into force, if so agreed by the parties. The exchange concerns bilateral treaties and
perfects the treaty immediately, while the deposit concerns multilateral treaties and
refines the treaty among the depositing states as the ratifications are deposited or
it occurs only after a certain number of ratifications have been deposited and a certain time has passed
time, according to the indications provided by the treaty itself.
Once the procedure described is completed, the treaty comes into force and for the purposes of its entry into force, it does not...
It is necessary to “register” the treaty with the United Nations Secretariat because the
Failure to register does not entail the ineffectiveness of the treaty but rather the impossibility of invoking it.
before the International Court of Justice.
Procedure for stipulating in a "simplified" form
An alternative procedure for the conclusion of treaties is that in 'simplified form'.
the simplification consists in the fact that the signature binds the state and determines the entry into force of
treaty, without the need for ratification. A treaty concluded in simplified form, binding already to
agreement, as it differs from a solemn treaty, which does not bind the contracting state with the
the company only signs with the ratification, based on the consent, expressed or implied, of the parties to consider the
binding treaty already at the signature. Articles 12 and 13 of the Vienna Convention of 1969
they specify that the signature serves to bind the parties to the treaty 'when it has been agreed in such a way
sure between the parties.
The Italian Constitution does not mention agreements in simplified form, limiting itself to
to ensure, as stated, that the ratification of treaties belongs to the Head of State (art. 87, 8th paragraph,
Cost.), prior when the authorization for the ratification of the Chambers is required (art.80 Cost.); also, it
One can consider that in the Italian legal system all can be concluded in a simplified form.
agreements that do not fall within the categories of Article 80 of the Constitution, for which no requirement is needed
the authorization for ratification and therefore presumably not even the ratification. The problem that has arisen
The question in Italy is whether the unconstitutionality of the agreement also results in its invalidity.

32
international. The most striking example is Italy's application for admission to the United Nations,
what happened with the request in 1947 by the Italian Minister of Foreign Affairs that was only accepted
In 1955, due to the intertwined events between the United States and the Soviet Union. It is clear that adherence to
The United Nations Charter involved 'burdens on finances' as well as 'changes in laws' and even more.
evident is the 'political nature' of the Charter, whatever the more specific meaning attributed to it.
desire to attribute. A solution to the problem can be found in Article 46 of the Vienna Convention of
1969, generally considered to correspond to customary international law, establishes that
a "manifest violation of an internal norm of fundamental importance" as it certainly can
considering a constitutional norm such as in Italy Article 80 of the Constitution is a cause of invalidity
of the agreement. Article 46, paragraph 2, specifies that a State may invoke the invalidity of a
contract, and evade the obligation to respect it, if it is demonstrated that a) the stipulation is in contrast with a
your internal rule of fundamental importance and b) the contrast was objectively evident and
recognizable by the counterpart who was acting in good faith and behaving according to practice
habitually followed; on the contrary, the counterpart who considered the treaty perfectly valid
it must demonstrate that the stipulation does not conflict with an internal rule of the other State, even
to admit that such a contrast exists, that it is not evident or recognizable according to practice
habitual.
Under the terms of the Vienna Convention, invalidity due to violation of fundamental internal norms
the competence to conclude may also concern individual clauses of the treaty, under certain conditions and
can be healed by the parties through explicit acceptance, or in any case the execution, of the
treated and despite the knowledge of its existence.
At the end of this speech, we can certainly say that the Italian State is therefore certainly
bound by the treaties he entered into at the time in violation of Article 80 of the Constitution, if he has provided,
as a rule, he has provided acquiescence over time.

B) Subjective scope of effectiveness of treaties

In general, the principle 'contracts do not harm nor benefit third parties' applies, that is, the principle
according to which treaties bind only the contracting parties, just as is the case for contracts
of state law. The principle of the ineffectiveness of treaties for third parties can be considered implicit in
principle of the "sovereign equality" of States and in the rule of international law
the customary pacta sunt servanda reproduced in Article 26 of the Vienna Convention of 1969,
This means that a treaty can grant rights and impose obligations on a third State only if
it turns out that the States parties wanted to create them and the third State accepted them; if it results in a
"offer" from the contractors and an "acceptance" from the third party, thus forming the agreement
among them that clearly has the effect of transforming the 'third' into 'part'.
In the era of globalization, there is an increasing need for treaties to be respected by the parties.
high number of states and possibly from all. While maintaining the principle pacta tertiis neque
guilty nor beneficial are ineffective, if direct trends are recorded to make some treaties applicable as well
to third countries.
C) Incompatibility between conventional norms
The issue of incompatibility between conventional norms is the subject of Article 30 of the Convention.
Vienna, generally considered to correspond to customary international law. The article
30, paragraph 1, preserves the 'provisions of Article 103 of the United Nations Charter'. The mention
Article 103 clearly operates as a compatibility or subordination clause that...

33
combines the operation of Article 103 as a prevailing clause. Article 30, paragraph 2,
provides that the clause contained in a treaty establishing subordination or compatibility
of the treaty itself with others involves the prevalence of the treaty to which it is subordinated or declared
compatible. Article 30, paragraph 3, regulates the hypothesis of the total coincidence of the contracting parties providing
that the previous treaty applies only where it is compatible with the subsequent treaty, which means
Translate in the principle lex posterior. Article 30, paragraph 4, regulates the cases of partial coincidence.
of the contents without and with the participation of third parties, providing that among the common parts of the treaty
the earlier and the later treaty, the later treaty applies (principle lex posterior), while between
parts of which one is common to both treaties and the other is only for one of the two treaties "the treaty of which
the expression means that the contractor of both is bound by both and the contractor of one
only is bound exclusively by the latter while the other remains in relation to him
among other acts. Article 30 applies indiscriminately to any type of treaty, regardless
from the number of parties and the nature of the obligations provided.
D) Reservations in treaties
It may happen that a state is interested in binding itself to a treaty but not to all its clauses.
and this is precisely the main task of the 'reserve', which aims to allow it to ratify
to adhere within the limits to which he is willing to do so. The consequence is a regime applicable to the State
differentiated reserving from other contractors.
The reservation is defined by Article 2, letter d), of the Vienna Convention of 1969 as 'a
unilateral declaration, whatever its formulation or designation, made by one
State when it signs, ratifies, accepts or approves a treaty or adheres to it, through which
it aims to exclude or modify the legal effect of certain provisions of the treaty in their
application to that State." The reservation is thus a unilateral declaration by which a State
reserve with respect to a treaty excepting one or more clauses (so-called exception reservation), or with the
modification of one or more clauses (so-called modification reservation). Reservations are also possible with which one
a state, by binding itself to a treaty, accepts one or more clauses only with a certain meaning and
excluding any other abstractly possible (so-called interpretative reservation).
The function of reserves is to allow a State that is willing to adhere to the majority.
some provisions of a treaty, but does not wish to participate in the treaty in a
reduced or otherwise differentiated measure compared to other contractors; the usefulness is to prevent that the
A state refuses to adhere to the treaty as a whole due to some single clause that is not
willing to accept. If the reservations tend to increase the number of participants in the treaty,
this also implies the assumption of different obligations among the parties, depending on the reservations
formulated by each, and therefore a fragmentation of the legal regime of the treaty that can
to undermine the purpose for which the treaty was drafted. Reservations make sense only
with multilateral treaties, allowing the treaty to be perfected and produce effects even if more
States do not accept different clauses. In bilateral treaties, however, the proposal of a reservation.
is equivalent to the demand to negotiate a new treaty cannot be formed without the consent of
both parties. The reserve is in any case intended to have a legal effect, as it exceptions or
amend a clause of the treaty or limit the binding obligation to the desired interpretation only
from the reserving state; they should be distinguished from the so-called 'political' declarations, which often accompany
the adoption of international instruments, which are in fact declarations to which the parties do not
they intend to attribute a legal value.

34
Often states also make 'interpretative declarations' and this has raised the question of whether they
whether they can be assimilated to actual reserves or not. In practice, interpretative declarations are
state equivalent to real reserves suitable to produce the legal effect of withdrawing the State
reserved for interpretations of the clause covered by the reserve different from the one proposed by it,
so we can say that the equivalence implies that the hypotheses of inadmissibility of the reservations do not
they can be circumvented by the contracting states simply by using the term 'declaration'
instead of "reserve".
The problem that reserves pose is therefore the fragmentation of the treaty regime to the extent
in which the contracting States assume different obligations, more or less extensive depending on their respective reservations.
This is how the integrity of the treaty is lost, meaning the commitment of all parties with respect to a set of
equal clauses for everyone.
In the past, it was preferred, at least in the 'European practice', to defend the integrity of the treaty and limit to
maximum availability of reserves to the point that every reserve was considered as a proposal
of a partially different treaty and had to be accepted by all the contracting parties, otherwise it
The reserving state did not become part of the treaty and that meant that the reservations could not be
after the signing of the treaty, and therefore they had to be agreed upon at the time of the
negotiation. If a state wanted to make a reservation, it had to ensure that the reservation was
accepted during the negotiations and therefore incorporated into the text of the treaty to be submitted for signature,
or obtain that the text explicitly provides the possibility for all parties to add
reserve after the signature: if you had not succeeded, you had no other choice but to give up the
treaty. This system allowed all contracting parties to commit to a text that was the same for everyone.
and to assume identical obligations in the first hypothesis and different ones in the second but still
pre-established and predictable.
The 'European system' was contrasted by the 'Pan-American system', which admitted a
greater flexibility allowing states that made reservations at the time of ratification or
of adherence, even in treaties that did not explicitly foresee the faculty, to become parties
of the treaty only towards the contracting States that have not raised objections to the
reserve. The aim was to promote the widest participation in the "treaty", at the cost of sacrificing
the uniformity of the obligations undertaken. If the 'European system' was based on the principle of integrity,
that Pan-Americanism was inspired by the principle of the universality of treaties.
An opinion was given in 1951 by the International Court of Justice which concluded by saying that
a) in the absence of explicit provisions regarding the availability of reserves at the time of ratification
or the adhesion it should be admitted the possibility of making reservations as long as they were compatible with
the object and the purpose of the treaty, and that b) the other parties could oppose the reservation as well
formulating an objection, in which case the treaty would produce no effect between states
reserving and objecting state; or to accept it, in which case the treaty would produce effects as amended
from the reserve and that is to say it came into effect for the part not covered by the reserve between the reserving state and
Recipient state regardless of the fact that the reserving state was not a party to the treaty regarding
to the other States that had raised the objection. The solution accepted was dictated
the need to involve as many as possible in a treaty on such important human rights
States, even at the cost of allowing some to admit minor and different obligations compared to those
assumed by others who had already left for the Convention; the opinion of 1951 was followed by a practice
as it was then largely accepted by the Vienna Convention of 1969, which
occupies Articles 13 and 23. The Convention establishes that in the presence of provisions that

35
they expressly allow or expressly prohibit the placing of reservations at the time of
ratification or accession, the latter can certainly be affixed while in the opposite hypothesis
the apposition is automatically excluded. The express or tacit acceptance that occurs following
lack of objection within 12 months from the notification or from the date of consent of a reservation
It implies that the reservation is effective and the treaty produces effects between the reserving state and the state.
accepting; while among the other contracting parties the treaty continues to apply in full.
The objection, whether on compatibility or other grounds, to a reservation cannot be raised beyond the deadline of 12
It means that the reservation is effective and the treaty has effects (art.20, par.4, letter b), as ...
modified by the reservation between the reserving state and the objecting state, unless the objecting state
with his objection he has opposed "definitely" the entry into force of the treaty in
relationships with the reserving State, in which case the treaty produces effects, that is, it does not come into play at all.
force, between the two States.
The effect of the reserve is to modify the provisions to which the reserve refers in the relationships between
reserving state and other contracting states; however, the provisions of the treaty remain unchanged for the others
parts in the "inter se" relationships. Reservations and objections to the reservations can be withdrawn at any time.
moment, unless the treaty provides otherwise (art.22), in written form, the withdrawal instead, is
a unilateral act and does not require the consent of the accepting State. The reservations, express acceptances
Objections to the reservations must be made in writing and communicated to the contracting states.
(art.23, par.1).
The reserve regime, even after the Vienna Convention, has been oriented towards their
less relevance, especially in treaties on human rights. The problem is to establish whether
the inadmissibility of a reservation results in the invalidity of the reservation, which does not
produces effects or the invalidity of adherence to the treaty precisely due to the reservation then results
inadmissible. In the first hypothesis, the reservation is separated from the adherence, and it is presumed that the State
would have adhered even without reservation; in the second, however, it is presumed that the reservation is
"essential", that is to say that it is considered by the State as an integral part of the adherence.
In the most recent practice, human rights treaties entirely prohibit the inclusion of reservations and go
noted that in less recent treaties on human rights, which in principle admitted reservations, there are
States often make numerous reservations that appear incompatible with the object and purpose of the treaty.
Another trend of the practice following the Vienna Convention is to allow
the placing of reservations even after ratification or accession (so-called late reservations), provided that they do not
objections are raised by the other contracting States, within a deadline set by the depositary of
treaty, a term that in the practice currently followed by the United Nations Secretariat is twelve
months; the lack of objections can be considered equivalent to acquiescence and this time, in its turn
turn, to an agreement that 'reinstates' the treaty in terms that result in modification from the
reserve. Essentially, a late reservation is formally an offer to conclude a new agreement.
The placing of reservations also raises issues of domestic law and raises the question of what happens when for
the stipulation requires the involvement of multiple bodies and only one (generally the Executive regarding the
Parliament.
A) Additional reserves from the Executive: in the case of an exceptional reserve, the treaty binds Italy
to a lesser extent than authorized by Parliament. In this case, Parliament
authorizes the ratification of the entire treaty, while the Government formulates one or more reservations at the moment
the deposit of ratification or accession commits the State only for a part of the treaty.

36
B) Reserves 'held' by the Executive: in the reverse scenario, of one or more reserves desired by Parliament
but not formulated by the Government at the time of depositing the ratification or accession. In this
the Government ultimately commits the State to the entire treaty, while Parliament,
deciding to make one or more reservations at the time of authorization for ratification, did not authorize the
ratification of the parties to the treaty at the authorization stage, has not authorized the ratification of the parts of the
treaty covered by the reserves and therefore Article 80 of the Constitution is violated, and consequently, the
the treaty is invalid on the international level, pursuant to Article 46 of the Vienna Convention.

E) Interpretation of treaties
The competence to interpret treaties primarily belongs to the States that are parties to them, either through the
organs of the executive power both through judges when they are called to apply them
In a controversy. Judges are required to consult the foreign policy bodies of the Executive and to
accept the interpretation of a treaty provided by it, in derogation of the principle of independence
of state powers, but it is a criticizable trend because it subordinates the application of
right to political opportunity assessments. The interpretation may also fall to bodies
international bodies whose competence is a stipulated expression of the treaty, such as an arbitration tribunal
established ad hoc or by the International Court of Justice. In the case of founding treaties of
international organizations interpretation is also carried out by the same bodies
of the organization.
The main rules for the interpretation of treaties are contained in articles 31, 32, and 33 of the
Vienna Convention of 1969 and they are applied by both domestic and international judges such as
legal norms in every respect. Article 31 of the Vienna Convention establishes the criteria
principles of interpretation. According to this provision, a treaty must be interpreted "in
good faith" and in light of the "text".
A) Text: the reference to the 'text' in its 'ordinary meaning' (so-called 'textual interpretation')
It is understood that the interpretation that will be preferred is the so-called 'objective' method, but what matters is
therefore what objectively results from the text of the treaty, regardless of what the intention was
of the parts, which can only be considered subsidiarily; furthermore, the
International jurisprudence is in favor of the objective method.
B) Context: the "context" includes, pursuant to Art. 31, par. 2, the preamble and the annexes and "any
agreement concluded in relation to the treaty to be interpreted. The context also includes 'any
"instrument" established by one or more parties at the time of the conclusion of the treaty and accepted
from other parts as a tool in relation to the treaty to be interpreted.
C) Practical application: the practical application, although it is relevant and therefore results in convergence, and
therefore expresses an 'agreement' between the States parties, it should be distinguished from subsequent international agreements
ad hoc agreements in which the parties explicitly establish the meaning to be attributed to a
previous treaty thus establishing a formal 'authentic' interpretation of the treaty and
refers to any subsequent agreement concluded between the same parties and related to the interpretation or
the application of the treaty to be interpreted, that is to say the meaning to be attributed to one or more of its
terms.
D) Object and Purpose: the criterion of object and purpose can result more indeterminate in the measure in
which can lead to results that may seem remote and even opposite to those that
they would arise from a reading of the 'text' in its original meaning. However, it does not seem that the
the criterion of the object and the purpose of the treaty can legitimize interpretive results that go beyond the

37
the will of the parties made clear by the text. Furthermore, the teleological interpretation lends itself to being
employed mainly for certain categories of treaties, such as those on human rights, leading to
to prefer, among the equally plausible meanings of an 'evolutionary' interpretation of the treaty.
E) Other relevant rules: relevant rules should be understood as general international law,
that is customary law and the general principles of law recognized by civilized nations,
existing at the moment when the issue arises. Ultimately, we can talk about 'rules
"pertinent" exclusively those of international law.
B) Supplementary Rules (art.32): Article 32 of the Vienna Convention establishes the criteria
supplementary, which may be used subsidiarily a) to confirm an interpretation
already carried out pursuant to Article 31, or b) to identify the meaning of the text when it is still
ambiguous or obscure, or c) leads to a result that is manifestly absurd or unreasonable. The criteria
foreseen are the recourse to the 'preparatory works' (so-called 'historical interpretation'), that is to say to the works that
they led to the drafting of the treaty, and to the 'circumstances existing at the time of
"stipulation". This way it seeks to emphasize the subjective intention of the drafters and it can happen that
often the preparatory work does not provide the help that one would expect since the
interpretative difficulties of a treaty, especially if multilateral, arise from conflicts and
divergences expressed precisely during the preparatory work. For "circumstances existing at the time"
By 'the stipulation' we mean the events that led to the conclusion of the treaty.
C) Authentic texts in multiple languages (art.33): Article 33 of the Vienna Convention regulates the hypothesis of
discrepancy between multiple equally authentic linguistic versions of a treaty. The legally
The binding nature of a treaty is indeed that which is in the languages that the treaty itself is usually in the clauses.
finally, indicate as 'authentic', on the contrary, the translations in other languages not indicated by the treaty
as 'authentic' are not legally binding. For example, the Italian Official Gazette
regularly publishes the text of the treaties being executed in one of the authentic languages (which
rarely it is that Italian) accompanied by a 'non-official' translation in Italian. If
therefore there are two (such as English and French in the European Convention on Human Rights
human) or more (such as English, French, Arabic, Chinese, Russian and the
Spanish in the United Nations Charter) can pose a problem of discord, in the sense that
a term in the treaty a term of the treaty in one of those languages could have a meaning from
what the same term has in another authentic language. In this regard, Article 33 paragraph 4 establishes that
where the discrepancy cannot be resolved through the criteria provided in articles 31 and 32, it must
to be preferred the meaning that allows to better reconcile the various texts 'taking into account the object
and of the purpose of the treaty, it follows that if there is a discrepancy between two versions
The authentic linguistic form of a treaty should be preferred that best ensures the achievement
of the purpose of the treaty as a whole, for example the greatest possible protection
of the individual in the case of a treaty on human rights. In the event that the disagreement stems from a
translation error from one authentic language to another requires the correction of the treaty,
as provided for by Article 79 of the Vienna Convention of 1969.
The rules codified by Articles 31-33 of the Vienna Convention of 1969 are not exhaustive.
all the rules of interpretation used in international practice; there are other rules,
traditionally expressed in Latin and traceable to the 'general principles of law recognized by the
civil nations" applied to practice, we can mention some of them: "contra preferentem" (in
doubt in favor of the content), 'indubio mitius or indubio pro libertate' (in case of doubt in favor of the
freedom of the subject obliged to fulfill the obligation), 'ut res magis valeat quam pereat' or of the

38
"useful effect" (in case of doubt in favor of the meaning that ensures a function or an effect to the
norm), "favor debitoris" (in case of doubt in favor of the weaker party) where the latter is
applied in the interpretation of peace treaties, where interpretation is often preferred
more favorable to the defeated state, and sometimes even in treaties to which developing states are parties.
Also important is the Analogy that is used for interpretative purposes, which consists in applying
to a case for which there is an explicit rule another rule that explicitly regulates a case
simile, that is, partly equal and partly different.
The Evolutionary Interpretation of international treaties leads to attributing to the terms of a
treaty with different meanings, if not entirely foreign, to the will of the parties at the time of
stipulation, what goes against the principle according to which States, by adhering to the treaty, intended
to assume only the obligations that arise from the treaty precisely at the moment when the obligation is
status assumed. It is difficult to deny the admissibility of evolutionary interpretation, even within the limits of
treaties on human rights that provide for the functioning of an international body having the
competence to interpret them.
Interpretation of the founding treaties of international organizations
The issue at hand is whether the founding treaties of international organizations should be
interpreted in the same way as any other treaty or with different criteria, that is, we ask ourselves if the Charter
of the United Nations are real constitutions and must be subject to the rules
generally applicable interpretative guidelines for constitutional texts, usually more 'political' rather than
to the 'ordinary' applied to treaties in general. According to the most important interpretative rule, it
should apply, to the founding treaties of international organizations, that of 'powers
"implicit", noted especially in its application by the Supreme Court of the United States for
interpret the distribution of competencies between federal bodies and state bodies; all this
transposed to the international level, based on the so-called "federal analogy," the rule of powers
implicitly means that the organs of an international organization would enjoy not only
powers that the statute expressly attributes to him, but also powers that, although not provided for,
are still considered necessary to exercise those provided. The rule of implicit powers tends to
to act against the opposite fundamental rule of 'attribution', according to which the bodies may
to exercise only the powers that the Member States have conferred upon them in the Statute. The underlying idea is
clearly in favor of international organizations and against the sovereignty of individuals
states.
The underlying issue is whether international organizations can be compared to federal states, and
so if their statutes are comparable to national constitutions; the negative answer is from
prefer because international organizations cannot be equated with States, being normally
deprived of a territory and a population on which to exert government powers, nor are they supported
gives a political legitimacy that can justify the exercise of such powers. The Court itself
International Court of Justice, affirming that the United Nations is an international entity, has
It must be clarified that this does not mean that they are a State, let alone a Super-State.
justice and peace, just like any other value, can only be safeguarded thanks to
to the government authority, that is, from the ability to enforce laws and judgments, to punish those responsible
and so on; therefore, international organizations are not only not territorial communities and do not
they can govern a territorial community, but they are not even felt as legitimate, even
because they do not offer control mechanisms and remedies against abuses in favor of individuals but it is
It is indeed true that international organizations are today essential for converging authority.

39
of the States towards the values of justice and peace, but it is also true that the mere transfer of
Delegating power from states to organizations does not automatically guarantee better results, as
they demonstrate the most recent cases of irresponsibility of the United Nations for violation of human rights.
In conclusion, it seems correct to believe that the criterion of 'implied powers', as it is contrary to
principle of attribution should not be legally acceptable. An extension of powers present in the
Statute, beyond what the Statute itself provides according to common rules of interpretation, can
to confine oneself only to the extent that there is an objective and uncontested practice that justifies the
identification of a particular customary norm that derogates from the organization's Statute. The
the criterion of implied powers is in fact also unrealistic because it tends to broaden "only on paper" the
powers of international organizations compared to those of the member states, which could
much more concretely act by reducing the formal powers of the organization or
simply refusing to collaborate with an organization deemed too invasive.

unilateralistic interpretation
There is a tendency for states to interpret a treaty in accordance with their own domestic law.
d. interpretation "unilateralistic"), without considering the criteria followed in practice
international. Although the unilateralistic interpretation by definition may lead a priori already
At the moment of binding oneself through an 'interpretative' reservation, the problem usually arises.
when, in the absence of an interpretative reservation, a treaty is interpreted by the judge of a State
starting from the translation of the treaty in its language, where this language is not "authentic", and therefore
also according to a national legal meaning, in order to achieve a result different from
what it would have achieved referring to the treaty drafted in the authentic languages. Article 33 of the
The Vienna Convention excludes that in case of linguistic discordance the contracting states may
assign each the meaning in accordance with their own national law, and instead establishes the search
of the common meaning to all the parties that is more in line with the object and purpose of the treaty.
The unilateralistic interpretation clashes with the idea of the treaty as a meeting of wills on an identical matter.
subject, apart from individual clauses that sometimes explicitly provide for recourse to the law of this or
of that contracting state for interpretative purposes.
Uniform interpretation
The interpretation of treaties can be easily achieved if there is an international body.
competent exclusively to interpret them where judges will have to seek a common meaning
making use also of the case law applied by the judges of all other contracting States and of
general principles of law common to such States.
F) Succession of States in treaties
In the event that one State effectively constitutes another in the governance of a territorial community
(following detachment, division, incorporation or merger) it is questioned whether the succeeding State
is legally bound by the treaties, bilateral or multilateral, made by the predecessor State;
one wonders, in other words, whether a de facto succession between States results in a succession in
legal sense.
The issue is governed by the Vienna Convention of 1978 on the succession of States in
Treaties, in force at the international level since November 6, only for 22 states, among which there is not
Italy. The Convention applies to successions between States that occurred after its entry into force.

40
vigour, even if the succeeding State is not a party at the time of succession (art.7, par.1) the
which can still declare that it wants to apply it even to a succession that occurred earlier
of its entry into force with effect for the other parties that have accepted such declaration
(art.7, par.2) considering the fact that treaties of a political nature, as they are closely related to
predecessor government regime, shall not be transmitted to the succeeding state and that the treaties
localizable, concluded in the interest of a specific part of the territory of a State, on the contrary
They transmit, for all the other treaties, there are strong divergences in doctrine and the practice is anything but
unique. The general trend is in favor of tabula rasa, that is, their non-transferability. A
part of the doctrine, on the other hand, believes that the State remains identical when there is continuity in its
organization of government. But even radical changes in government may not have an impact.
on the identity of the State; on the other hand, a state that is annexed or militarily occupied by a
another state and return to being independent after many years seems more susceptible to being
considered "new" despite keeping the same name and being considered a continuation of the previous one
A) Detachment or succession: a detachment or a succession occurs when a part of the territory of
a pre-existing state merges with the territory of another state through voluntary cession,
as in the case of Alaska ceded to the United States by Russia in 1867, or following a
conquest. It can also happen on the part of the territory that separates from an existing State.
form one or more new states, as is the case for all the states since decolonization.
B) Dismemberment: dismemberment occurs when two or more are formed on the territory of a State.
new states, in the sense that no one presents a continuity in the organization of government with it
predecessor state, while the state that has undergone the fragmentation is extinguished. This is the case of the
dissolution of the Austro-Hungarian Empire after World War I, of the Nazi Third Reich
after the Second World War, of Czechoslovakia, of the Soviet Union and of Yugoslavia
from 1991. While the thesis of detachment the pre-existing state that undergoes the detachment does not extinguish,
In the event of dismemberment, the pre-existing state is extinguished. The extinction is demonstrated by the fact
that the government organization of all existing states after the state division is not the same
of the pre-existing State.
C) Incorporation or annexation: there is incorporation or annexation when a state,
extinguishing, becomes part of another State. This is the case with the formation of the Kingdom of Italy and
of the so-called German reunification of 1990. In this case, the State or States that join a
another pre-existing state extinguishes and therefore the extinction is again demonstrated by the fact that the
the state into which others flow maintains the same government organization, which is extended
to everyone.
D) Fusion: fusion occurs when two or more states extinguish, giving rise to a new state that
it does not present continuity in the organization of predecessor states: this is the case of the Republic
Saudi Arabia, Tanzania, and Yemen.
Succession in locatable treaties and non-transferability of political treaties
The so-called 'localizable' treaties are treaties concerning the use of parts of the territory, such as the concession.
for rent, the right of way, demilitarization, free navigation, funding for works
local public. Article of the Vienna Convention of 1978 provides that such treaties concluded by the
Predecessor state, precisely because they are more linked to the territory than to the contractor (res transit cum suo
(one), the succeeding State automatically comes into effect. According to Article 11 of the Convention of
Vienna, even the border delimitation treaties are 'inherited' by the succeeding state, with
the consequence that the latter is required to respect the borders of the predecessor. The respect for

41
existing borders at the time of the change of sovereignty by the succeeding State derives
also from the beginning of uti possidetis. The basic rule, which reflects the most evident tendency in
practice, seems to be the so-called 'tabula rasa', in the sense that the succeeding state is not
automatically bound by the treaties of the predecessor state but, it can only become so if
makes a renewal, either express or tacit, of the treaty; this rule implies that the state
the successor is bound by the treaties entered into by the predecessor state only if it enters into a (new)
agreement with the other parties of the treaty. Completely irrelevant that the succeeding state has committed itself
with the predecessor state ex motherland, through an agreement known as 'devolution', to respect the
treaty, agreement that remains for the other contracting parties devolved res inter alios acta.
A) Detachment: in the case of detachment or secession of a part of a state's territory that joins
in the territory of another State, the principle of tabula rasa operates in the sense that the treaties in force for the
the state that disconnects ceases to apply to the detached territory and the applicable laws are these
treaties in force in the state that acquires the detached territory (so-called mobility of borders
treaties, art.15). In the case of detachment or secession of a part of a territory of a state that
as a New State, the Vienna Convention of 1978 applies the rule of tabula rasa
only when it comes to a state that emerged from decolonization or that somehow was
previously a "dependent territory for whose international relations the predecessor State
he had the responsibility,” while the rule of “continuity” is anticipated without distinguishing the detachment
or the secession of a part of the territory from the dismemberment of a state as a whole, when
the successor state is not a former colony (art. 34). The rule of tabula rasa applies to treaties as well
bilateral, even when the new state and the new state consider it tacitly in force or through actions
conclusive; in the case of multilateral treaties, the New state can, however, carry out a
notification of succession written (arts. 17 and 22) to the depositary of the treaty or, in the absence of it, to the States
contracts (Articles 22 and 38), with ex tunc effect, that is retroactive to the time of purchase
of independence (art. 23), instead of an adhesion, which would have an ex nunc effect, that is from
moment when it is executed. With the notification, the treaty binds the succeeding State even before
with his consent, in the period that elapses between the moment of purchasing independence and that
of the notification of succession.
B) Dismemberment: in the case of dismemberment, the rule of the clean slate operates in the sense that
none of the new states that arise from the extinction of the cuierano part state are bound by the
treaties concluded by that State, this concerning customary international law;
On the other hand, the Vienna Convention of 1978 provides that, in cases outside the scope of
decolonization, the rule of continuity (art.34).
C) Incorporation: in the case of incorporation or annexation, the rule of tabula rasa operates in the
I feel that the treaties in force for the state acquiring the territory of the state that is extinguished...
they extend to such territory, while the treaties concluded by the contracting State cease to apply (so-called
mobility of treaty borders): this rule is once again in line with international law
customary, since it concerns a hypothesis unrelated to decolonization, the Vienna Convention of
1978 provides for the rule of continuity.
D) Merger: in the event of a merger, the rule of tabula rasa operates in the sense that the treaties in force
for the States that cease to exist, the application ceases: even in this case, in derogation from the law of
international law, the Vienna Convention of 1978 provides for the rule of continuity (art. 31 and
33)

42
E) Radical change of government: in the event that the revolution fails, the 'legitimate' government
takes over the property formerly owned by the revolutionary government, as well as those confiscated
illegally, of which he has not lost ownership, as well as those acquired legitimately as a result of
of succession, present in a foreign state. In this case, the 'legitimate' government is bound by
commitments made by the revolutionary movement; in case the revolution should succeed
the new government is bound by the commitments made by the deposed legitimate government, except for
for the treaties of a political nature strictly linked to the pre-existing regime and the so-called 'odious debts' and
therefore the acts carried out by the insurgents during the revolution are attributed to the State if the revolution
It has happened.
The principles illustrated so far also apply to the founding treaties of international organizations, and in
particular for membership in the United Nations: a) in the event of a secondment, the state that is affected remains (if
it already is) a member, while the territory that has detached itself and constitutes a new State can become
member only following the admission procedure pursuant to art.4, para.2, of the Charter; b) in case of
disintegration the states that are formed from disintegration can only become members in
following the procedure under art. 4, para. 2, of the Charter; c) in the case of incorporation, the incorporating state
remains (if it already was) a member, while the incorporated state ceases to exist and thus loses any possible
quality of membership, as happened with Syria incorporated into Egypt in 1958 to form the
United Arab Republic (U.A.R.); d) in the event of a merger, the state resulting from the merger may become
member only following the admission procedure pursuant to Art.4, par.2, of the Charter, while the states
those who have merged will become extinct; e) in the case of a radical change of government, the membership of the
The state remains unchanged, but usually there is a turnover of delegates, in the sense that the new
The government does not confirm the delegates of the previous government and sends new ones. The changeover
the delegates is regulated by the principle of effectiveness, in the sense that the United Nations seat must
to be occupied by the government delegates who effectively control the territory.
Treaties on human rights
Another question that arises is whether the rule of tabula rasa has an exception in the case of
treaties on human rights to ensure that they, given their 'special character', are respected
immediately from the new States. In this case, the Human Rights Committee has expressed itself.
United Nations in General Comment No. 26 of 1997 establishes that 'once people are
the protection granted by the rights of the Pact is transferred with the territory and continues
to apply to them, despite the change of government... or the change between States;
another strategy to somehow ensure the continuity of the Pact on civil and political rights is to
to configure his violation by the predecessor as a repeated illegal act by
Substituting state, in the sense that the violation of the substitute merely continues that of the
predecessor.
G) Invalidity, suspension and extinction of treaties
International treaty law, as well as the Vienna Convention of 1969, governs the
causes that determine the invalidity, suspension, and extinguishing of the effectiveness of treaties, as well as the
way in which a State can assert them.
The invalidity of a treaty implies the failure to produce legal effects and a part of the doctrine
distinguish between 'relative' and 'absolute' causes of invalidity, finding however only a partial response in the
Vienna Convention of 1969. Regarding divisibility, the causes of absolute invalidity.
they overwhelm the entire treaty, while the causes of relative invalidity can be limited to individual ones
provisions of the treaty (art. 44). Regarding rectifiability, the causes of absolute invalidity are

43
insanable due to acquiescence (and therefore they can always be invoked), while the causes of relative invalidity
they can be remedied by acquiescence (and therefore cannot be invoked after being considered
explicitly or implicitly the valid treaty, art. 45). Lastly, regarding
the invocability, the grounds for absolute invalidity can be asserted by any party to the treaty,
while the causes of relative invalidity can only be claimed by the party that is the victim.
In the Vienna Convention of 1969, the regime of 'relative' invalidity grounds is provided for the
manifest violation of an internal rule regarding the competence to stipulate of importance
fundamental (art. 46), for error (art. 48), for fraud (art. 49), and for the corruption of the body
stipulating (art.50); for the 'absolute' disability regime, it is instead provided for violence (arts.51 and
52) and for the contrast with a jus cogens norm (art.53).
The suspension of a treaty implies the lack of legal effects for a period of
time, while with extinction the treaty ceases to produce effects definitively. The main
causes of suspension and extinction provided for by the Convention are the resolutive condition or the
final terms expected by the treaty (art. 54), the termination or withdrawal provided for (art. 54) or not
provided for (art.56), the reduction of the number of parties to a multilateral treaty below the number
necessary for its entry into force (art. 55), the repealing or suspensive agreement (art. 59)
the exception of non-performance (art.60), the subsequent impossibility (art.61), the change of
circumstances (art. 62) and jus cogens (art. 64). Among the causes of suspension or extinction not provided for
from the Convention, but admitted to customary international law, there is war. One has
finally extinction based on the rule of tabula rasa in most succession hypotheses
of the States.
Disability: Causes of relative disability.
The Vienna Convention of 1969 lists a series of circumstances under which a
the treaty is null and produces no legal effects:
A) Manifest violation of an internal rule regarding the competence to stipulate of importance
fundamental;
B) Error: by error we mean a false representation of reality, usually in law
international of a geographical situation and Article 48 of the Vienna Convention of 1969 requires
that the error, in order to operate as a cause of invalidity, must be a) substantial (and that is, the error is irrelevant)
international law), b) as it constituted the basis without which consent would not have been
loaned, c) blameless or excusable, in the sense that it does not apply when the State invoking it 'has
contributed to that error with his behavior" or "the circumstances were such that it had to
to become aware of the possibility of an error.” The error as a cause of invalidity must be distinguished
from the editorial error, concerning for example the translation of a term or a clause in the
treaties drawn up in several authentic languages, which entails 'rectification' and not invalidity (art. 79 of the
Vienna Convention.
C) Fraud: fraud refers to the fraudulent conduct in negotiations aimed at inducing the
counterparty to enter into a treaty that it would not have otherwise entered into (art.49)
D) Corruption of the contracting authority: it is believed that the hypothesis of corruption of the contracting authority,
regulated by Article 50 of the Vienna Convention, constitutes fraud.
Causes of Absolute Disability
A) Violence against the contracting organ: it is a principle of classical international law that the
the constraint exerted on the contracting party's organ constitutes a cause for invalidity of the
treaty.
44
B) Violence against the State as a whole: since the end of World War II, coinciding with
the assertion of the prohibition of the use of force, the practice has tended to consider it a cause of
invalidity of a treaty also includes the coercion exercised on another state under threat or use of force
military force. The International Court of Justice has also expressed its opinion in favor of
correspondence of Article 52 of the Vienna Convention to customary international law.
C) Contrast with a jus cogens norm: Article 53 of the Vienna Convention provides that a
A treaty contrary to a 'mandatory' international law norm is invalid.

Suspension and Extinction. Causes of suspension and extinction regulated by

Vienna Convention of 1969
The Vienna Convention lists a series of circumstances under which a treaty may
to be suspended temporarily (art. 72) or to be extinguished definitively (art. 70):
A) Resolutive condition, final term, right of denunciation or withdrawal contained in the treaty,
express or tacit repeal agreement: articles 54 to 59 include among the causes of
suspension and extinction of treaties the resolutory condition, the final term (date set in
agreement in which the treaty ceases to have effects), the right of denunciation or withdrawal, right
express or tacit abrogation. These are causes of suspension or extinction that generally do not
they pose application problems.
B) Exception of non-performance (non-performance is not to be performed): the principle
non-compliance does not permit a contracting State of a treaty to not comply with
treaty in response to the failure of others. It is a countermeasure even if, according to the
common opinion, if it differs from other countermeasures because it may lead to extinction of the
treaty, while the countermeasures are always temporary. Article 60 of the Vienna Convention of
1969 defines the 'substantial' non-performance (material breach) of another party as a cause for suspension or
of extinction, total or partial, of the treaty itself. In bilateral treaties, Article 60, paragraph 1, allows the
counterpart of invoking the violation for the purpose of suspension or total or partial extinction; in
In the case of multilateral treaties, according to Article 60, paragraph 2, the suspension of the treaty by one of the
contractors, for non-fulfillment by another, can cause disadvantages and may not be welcomed
someone or to all the other parties and thus allows a) all the other parties, by mutual agreement, to
to suspend in whole or in part or to consider the treaty extinguished, both in relations between them and
the defaulting party in the relations between all parties; b) to the party particularly affected
affected) to invoke the total or partial suspension of the treaty in relations between it and
the defaulting party; c) each of the other parties to invoke the total or partial suspension of the treaty
as far as she is concerned
each of the parties.
C) Subsequent impossibility of performance (ad impossibilia nemo tenetur): article 61 of the
The Vienna Convention of 1969 governs the subsequent impossibility of treaty execution.
as a cause of suspension or termination of the treaty. The definitive impossibility, arising from
disappearance or destruction of an object essential for the execution of the treaty (drainage
a river or the submergence of an island) can be invoked as a cause of extinction, while
the temporary impossibility (such as the breaking of diplomatic relations or the unavailability of a
"port or a maritime channel) can only be invoked as a reason for the suspension of the treaty."
The impossibility must occur after the conclusion of the treaty, for example due to a change.

45
of sovereignty over the territory or the unusability of rivers or other waterways for navigation,
otherwise, if the treaty were to exist, it would be invalid.
D) Fundamental change of circumstances: Article 62 of the Vienna Convention of 1969
The principle states 'all agreements are understood in the state of things as they stand, or more briefly, as things stand.'
as long as the change must be 'fundamental', meaning it must be radical
modified the scope of the obligations yet to be executed, and 'unforeseen' at the moment
of the stipulation, nor must it arise from an unlawful act of the State invoking it. The circumstances
they must also be 'essential', meaning they must have constituted the essential basis of consent;
finally, it should not concern the delimitation of borders.
E) Emergence of a new norm of jus cogens: Article 64 of the Vienna Convention
provides that a treaty which at the time it was concluded is not contrary to a norm of jus
cogens extinguishes at the moment it proves incompatible with a norm that has meanwhile been established.
become binding.
Articles 65 to 68 of the Vienna Convention regulate a procedure to be followed to make
to be a cause for invalidity or suspension/termination of a treaty. Pursuant to Article 65, paragraph 1, and
of Article 67, paragraph 1, the contracting State that wishes to assert a cause of invalidity or of
suspension/extinction must notify the other parties in writing of its claim.
After a period of at least three months from the notification, without objections, the invoking state may
adopt the proposed measure (art. 65, par. 2); in the event that objections are raised within the term of
for at least three months, the disputing states must seek a resolution of the dispute through
the means provided for by Article 33 of the United Nations Charter (Article 65, paragraph 3) within a period of twelve
after the twelve-month period has passed uselessly, in the sense that the parties do not agree
a means referred to in art. 33 each party may activate a conciliatory procedure (conciliation, commonly referred to as
"mandatory" that is, activatable unilaterally) by making a request to the Secretary General of the
United Nations, governed by an Annex to the Convention, which ends with a report not
binding (art. 66, lett. b), unless it concerns a dispute regarding the application or
the interpretation of articles 53 or 64 (jus cogens) because then competent to issue a
(binding) sentence is the International Court of Justice at the written request of any of the
part in case the recourse to arbitration is not agreed (art.66, lett.a).
Section 3
Acts of International Organizations
We speak of 'third degree sources' when referring to the sources of international law provided for
of (and subordinate to) a treaty, on the assumption that treaties are secondary sources as they
in turn subordinate to custom, configured as a primary source. In the past, they
he spoke of third-degree sources referring mainly to the acts of amendment and revision of the
founding treaties of international organizations adopted by majority and binding as well
minority. It was also discussed regarding the so-called "dispositive" international rulings, that is, for the rulings
that resolve a dispute by creating a concrete rule for the specific case, such as the judgments ex
according to what is fair and just). Today it is mostly discussed in relation to acts
legally binding of international organizations, such as the decisions of
Security Council adopted pursuant to Article 41 of the Charter of the United Nations. Similar acts, whose
obligation is imposed precisely on the basis of the treaty that provides for their adoption, to tell the truth
are very rarely provided by the statutes of international organizations. Third-party sources
grades are also commonly referred to as 'sources provided by agreement' and the acts of
46
international organizations, whether they are exhortative or binding, especially when it comes to
organizations with universal participation like the United Nations and when they are adopted
majority and/or from the organs of individuals play an important role in law
contemporary international; in fact, they allow general international law to form in
faster times and to respond more promptly to real needs, and above all to take into account
in the formation of general international law for all States, including weak States, that
they have the right to speak and vote within organizations, as well as to discourage diplomacy
secret.
The Charter of the United Nations assigns in numerous cases to the organs of the Organization the power
to adopt 'recommendations', that is, acts that are not legally binding and are limited to inviting or
to encourage Member States to maintain a certain behavior (so-called soft law); with regard to instead
the acts provided for by the United Nations Charter as legally binding, that is,
For decisions, reference must be made to Article 17 concerning the General Assembly and Articles 41 and
49, para.2, regarding the Security Council. Article 17 assigns to the General Assembly
the power to approve the budget of the Organization and to decide the allocation of the related
expenses, deciding by a qualified majority of two thirds (2/3) of the members present and voting; article 41
allows the Council, whenever in its judgment a 'threat to peace, a violation occurs
of peace and an act of aggression" to adopt "measures not involving the use of force" (as
the trade embargo, the blocking of goods and bank accounts, etc.) and to impose them on everyone
member states, which are required to implement them. To avoid indiscriminate damage to the population of
Countries affected by sanctions, and corresponding violations of fundamental human rights, in recent years the
The Security Council has started to adopt 'targeted sanctions' (targeted or smart sanctions).
highlighted the trend in recent years of the Security Council to adopt resolutions, especially
relative to international terrorism and the proliferation of weapons of mass destruction,
that present characteristics such as to have led doctrine to think to the exercise of powers
Legislative, in particular, it concerns resolution no. 1373 of 2001 against terrorism.
international adopted following the 2001 attacks against the United States and the resolution
n.1540 of 2004 on the non-proliferation of nuclear, chemical, and biological weapons: these
The resolutions just mentioned are based on a notion of 'threat to peace'.
Section 4-Relations between international sources
The problem of the 'hierarchy' of international sources does not arise as it does in domestic law. Among the
Sources of the same type apply in international law the two principles that generally apply.
also in domestic laws: lex posterior derogat priori and lex specialis derogat generalis. Thus in
case of conflict between two contractual norms, or between two customary norms, or between two acts of a
international organization, the later rule prevails in principle. While the effective date of entry into
the force of treaties and acts of international organizations is known, due to custom and for the
general principles of law it is difficult, if not impossible, to establish a 'moment' from which
the standard has been formed.
The issue of prevalence among different types of sources in case of conflict arises mainly a) between
customs and treaties, b) among general principles of law recognized by civilized nations and
custom or treaties and c) between treaties and sources provided by treaties.
A) Custom and treaties: in international law, the rule is in favor of the prevalence of
treaty, even if prior, on the basis of the custom as a matter of specialty ratione personarum
since it binds only the contracting States rather than all states in the international community.
47
deals with the so-called 'flexibility' of customary international law (jus dispositivum), flexibility
which implies a derogability through treaties.
B) General principles of law recognized by civilized nations and custom or treaties: the rank
of the general principles of law recognized by civilized nations as stated in art. 38, par. 1, letter c,
of the Statute of the International Court of Justice. These are principles subordinate to
custom and treaties, as they are intended exclusively to fill any gaps in the law
customary and contractual law. In the presence of a customary rule or a rule
Pattizia, it is beyond doubt that one should not resort to general principles of law: it is not a
in the event that the Permanent Court of International Justice first, and the International Court of
Justice then, they have always avoided resolving the disputes that were presented to them on
exclusive basis of a general principle of law, even though they could do so by virtue of Article 38 of the
their Statute, preferring the application of specifically inter-state sources such as the
customs and treaties. The customs, in view and considering that they are special norms 'rationae
materials" in relation to the general principles of law, created by States to establish a regulation
own and specific specifically in order to prevent general principles from being applied, exactly
how special treaties are compared to custom. In conclusion, we must say that treaties
prevail both over customs and over general principles of law, by way of specialty ratione
of persons in relation to the material, while custom prevails over the general principles of law by title
of specialties ratione materiae.

Section 5-Dynamics of International Sources

The fact that international law is fundamentally customary has a consequence of
maximum importance since it implies that every act or inaction by individual states constitutes
always automatically a partial constitutive, modifying, or extinguishing act of the right
international and therefore the individual States have the constant power to (contribute to) make and unmake the
international law. In a fundamentally customary law like international law,
every act and every inaction constitute in real time the process of formation or modification or
extinction of the norms, without there being any other objective mechanism to influence the process.
This essential dynamic of international law naturally applies to law
general international, while treaties operate more or less like domestic law. A norm
Customs objectively exist, for example, if they are supported by practice and by the opinion of
general characteristics of States, regardless of the current favorable or unfavorable attitude
part of the individual States. A treaty is in effect if the procedure for its conclusion has been completed and
it has come into effect. An act of an international organization is international law in force if it is
the state has been adopted and has become effective in accordance with the founding treaty of the organization
international in which it was adopted. In other words, international law
Objectively valid is that which derives, ultimately, from the universal states and which has been formed.
in time according to the requirements set by the sources that come into focus from time to time. Standing
So things, we think it is important to examine the dynamics of international sources and therefore of
we must refer to the 'propulsive' role, or conversely 'restrictive', that in international law
they have the so-called persistent object, jurisprudence, equity, soft law, doctrine, opinion
public, the essential needs of domestic law and, finally, the jus cogens. It is a variety of
factors that play a crucial role in influencing, through their impact on

48
consideration by individual states regarding the formation and equilibrium of international law
valid as supported in their entirety.
Jurisprudence: Article 38, paragraph 1, letter d, of the Statute of the International Court of Justice, how is it
It is already observed that the Court will apply, in resolving the disputes before it,
subjected, the "judicial decisions" as "subsidiary means for the determination of the norms
"legal". It is necessary to distinguish international judicial decisions, which seem to be alluded to.
Article 38, from national judicial decisions; in any case, neither the first nor the second are in themselves
the same sources of international law, even if they can contribute to forming, or at least to
help identify international standards. International rulings, such as those issued
from the same International Court of Justice, legally binding the parties (art.59 Stat. ICJ),
but their mandatory nature derives from the agreement through which the parties submitted to jurisdiction
of the Court; nor does the rule of "precedent" (stare decisis) apply in international law, in the sense that
International judges are not required to adhere to previously given solutions in similar cases.
by other judges and even by themselves but it is believed that the international rulings of the Court
International Court of Justice, serving as an authoritative opinion of States. A practical consequence of
All that is is that international jurisprudence corresponds to generalized practice and to opinio
Jurisdiction of the States.

Sentences and opinions may or may not reflect the prevailing general international law depending on whether
reflect or not the practice and opinion of the States. A second consequence is that the judges
internationals can also express an opinion of necessity, that is, the need for a standard
still nonexistent may form in the future thus giving a propelling push to the transformation of
international law. As far as state jurisprudence is concerned, national rulings,
precisely because they come from individual States, they are not in themselves sources of international law;
however, when they come primarily from Supreme Courts, they can influence the formation
of new general international standards both because they can express an opinion of necessity of the
States, that is, the need for new international norms more suited to social reality, both because
already constitute state practice in every respect. The jurisprudence of a single State, or of a
only a group of states is not enough to give rise to a general international norm, being
instead necessary, according to the principles already examined, that the practice comes from the generality of the
states. The fundamental point is that jurisprudence, both international and state, even when
applies the prevailing customary law, that is, rules in accordance with the generalized practice and
the opinion of the States is already influencing its way of being; lacking, however, a legislator
universal, each single 'application' of international law by a judge is not
only a mechanical operation of subsumption of a case under a norm, but it is at the same time and
an inescapably creative or modifying operation of the law.
Soft Law: in practice and in doctrine, the term soft law is often used to refer to
norms or principles that are not legally binding could produce some effect
minor legal significance: the category includes international recommendations, resolutions
binding and the declarations of principles of the United Nations General Assembly.
Doctrine: Article 38, paragraph 1, letter d, of the Statute of the International Court of Justice mentions
also the 'doctrine of the most qualified authors from various nations' as a subsidiary means for
determination of the legal norms that the Court must apply; we can therefore assert that,
even though doctrine is not a source of international norms, it can help to determine them. Doctrine
does not even formally contribute to the formation of general international law, even if of

49
it tends to influence the decisions made by state authorities and thus, indirectly,
contributes to the formation of international law.
By 'doctrine' one means not only individual scholars of international law, but also
private associations that are dedicated authoritatively to the study of international law, such as the
"national societies" of international law (American Society of International Law, Society
Italian Society of International Law, French Society for International Law, German
Society for International Law, etc.). It is not uncommon for jurisprudence, both international and state,
Examine the doctrine to establish whether an international norm exists and what its content is.
The propulsive and promotional role of doctrine in the dynamics of international law is one of
extreme importance because scholars can frame individual norms, existing and future, in a
broader context that takes into account the purposes and the function of the law itself
international, thus providing practitioners with a suitable general perspective to inspire concrete solutions
more effective, more just, and more aligned with the expectations of peoples and individuals.
Jus Cogens: jus cogens or imperative law that serves to indicate certain norms
international agreements that are not only binding like any legal norm, but have, in addition
compared to all other international norms, a series of characteristics that make them predominant
in other cases of conflict such as concerning the prohibition of aggression, of genocide, of
torture, of slavery, of racial discrimination, of apartheid. The term jus cogens is of origin
Roman law, just like its opposite dispositional law, is connected to the idea that can be traced in the
Western state orders, unlike all others, cannot be derogated by
single associates through agreements or other types of behaviors. In international law, the jus
Cogens is defined and regulated by articles 53 and 64 of the Vienna Convention of 1969 on law
of treaties: article 53 defines a binding norm as "a norm of general international law"
accepted and recognized by the international community of States as a norm
from which no exceptions are allowed and which can only be amended by a rule
subsequent of general international law that has the same character and establishes that a treaty
any content that deviates from such a defined norm is invalid. Article 64 of the Convention adds
that a binding norm, if it arises, extinguishes the pre-existing contrary treaties.
The fundamental problem of jus cogens is essentially methodological and consists of asking oneself
what role practice and opinio juris ac necessitatis have in the detection and in this regard
possible approaches, which can end in 'purely deductive', 'semi-deductive' and 'inductive'.
A) Apodictic or 'purely deductive' approach: a part of the doctrine and certain
arguments from judicial practice seem to deduce special effects of jus cogens from
concept as such, or the underlying moral idea, regardless of any detection
of use and opinion. Precisely to avoid the objection of apodicticity, it is not uncommon for even those who
proceed by deducing special effects from the concept of jus cogens taking into account some account of practice and
The intention would be to support the deduction with empirical evidence, but in that case one falls into...
inconsistency because either jus cogens does not need practice and then practice cannot
support the effect deduced from the concept, or does it need it, but then it is not understood to which one.
well, let it be reported.
B) Semi-deductive approach: both doctrine and jurisprudence tend to accept a
"semi-deductive" approach in the sense that while certain aspects of jus cogens are proven.
empirically, others are deduced through logical inference. Usually, empirical evidence
It concerns the upstream aspects of reasoning, while those downstream are deduced logically.

50
This approach can be followed to 'transplant' an effect of jus cogens, which results in
demonstrated or prescribed in one area of international law, to another area in order to generate
a different effect; in any case, the general problem of the semi-deductive approach is that the effect
what is logically deduced from the empirically founded premise may not be found at all.
evidence in practice, despite the evidence of the premise existing and being debatable
C) Inductive approach: in the inductive approach, any special effect attributed to the law
Cogent, whatever the premises of the reasoning, must be empirically demonstrated. The
the problem that arises in such a case is that jus cogens disappears as an autonomous concept as
for example, a treaty incompatible with a specific norm of general international law can
it would be invalid if such is the practice; likewise the exercise of jurisdiction in the case of
international crimes.
Following an inductive approach, it is therefore that jus cogens neither adds nor takes away from the law.
ordinary customary international in force.
The function of jus cogens is intrinsically promotional and should be properly placed in the
dynamic, rather than in the static, of international law, that is in the way it can be
initiated the process of formation or transformation of the existing customary law and
Furthermore, it does not concern which right exists at a given moment, but rather the way to bring forth a new one.
law: jus cogens constitutes the opino necessitatis for the formation of new
customarily; the judges therefore apply jus cogens to demonstrate the necessity that a certain
effect, essential for protecting a value common to the majority of States, but still
legally nonexistent, may become valid international law in the future. To this end, the judges
they strive to demonstrate the 'superiority' of the effect, that is, the hope that the effect will be applied
progressively from all the States.

Section 6 - Intra-State Application of International Law

A) Adaptation
If there is a common international law for states but there is no universal authority to enforce it.
concrete ministers are the states that in the global system serve the function of
government of humanity their legislative, executive and judicial authority. It will now examine how
the states ensure to make it possible, through appropriate modifications of their own law,
the exercise of their governmental authority over their respective territorial communities in service of respect
of international law. It speaks of the 'adaptation' of the internal law of each state to the law
international, or also of "transposition" (or other similar expressions) of international law in
domestic law.
It is a fact that all States adopt provisions in their legislation to make
the international norms applicable internally. States usually set up mechanisms for
adaptation varies depending on whether general international norms, treaties, or come into play
contained in binding acts of international organizations since international law does not
It prescribes a method of adaptation but leaves individual states free to provide for it as best they can.
they believe, a variety of solutions adopted by different States exists. It is a common belief that
international law does not prescribe to States how 'adaptation' must take place and that
Consequently, each state is free to choose how to affirm its own right.
internal to international law; that does not mean that states are "free" to implement or not
international law, but only that very international law, as created and upheld
51
from the generality of the States, leaves individual States a margin of discretion in modifying the
own internal law so that international law can be effectively applied. It means
thus safeguarding the sphere of their task of governing their respective territorial communities and therefore
the entire universal community of individuals.
The generality of States believes that the systemic function (in contrast to what H. Kelsen said)
that the governance of humanity is carried out with greater efficiency and justice through a separation.
in principle between international law and domestic law, and therefore it can be defined
like a universalistic function, but the authority that must ultimately exercise it is always
current. Adaptation therefore has a decisive importance since it is the mechanism by which
the individual States assert their governing authority, and therefore the political obedience that is given to them
from individuals, at the service of realizing the common values of humanity, to the extent that they are
protected by international law.
The norms of adaptation to international law can be distinguished into two categories depending on whether
the states reformulate it or make a referral: in the first case it is referred to as adaptation
ordinary" since the internal authority (Constituent, legislator, administrative body) does not
it is only a matter of drafting a national regulation with content corresponding to the standard.
international; in the second case, it is referred to, by relation, as a "special" adaptation because
the authority (which can again be the Constituent, the ordinary legislator or an administrative body)
it merely refers to the international standard without reformulating it. In both cases, it reaches the
result of the adaptation, that is, the modification of domestic law necessary for the law
international law may apply, rather than the otherwise applicable domestic law and (in both the
There is almost a national norm that authorizes or imposes state bodies to apply the norm.
international that has been the subject of the adaptation.
Once the adaptation is carried out, the international standard becomes part of the legal system.
state like any other, regardless of its international origin; in this case it is possible
distinguish four levels of internal operation of an international standard, starting from the hypothesis in
for whom the act of adaptation is completely missing. The problem naturally arises, within the State,
only for the international standards that are binding on it at the level
international
A) Inoperability: at a first level, the international norm to which the legal system is referred.
internal has not yet adapted, or has not adapted validly. In this case, the
international norms, while binding externally, do not operate internally: the authorities of the State in
they cannot apply it, even if the State is bound to observe it towards others
States for which the regulation is in force.
B) Direct Applicability: at a second level, the international norm is imposed to which instead
the internal order has adapted. In this case, the international norm operates internally and the
the authorities and the authorities of the State must apply it: we then speak of 'direct applicability' for
indicate the obligation for state bodies to apply international standards without further specification
regulatory activity that imposes it. The state can thus comply with the obligations established by the norm.
international in relation to other states for which the obligation exists.
C) Individual enforceability: a third level is posed by the international norm, to which also
the internal order has adapted, that it creates rights and obligations for individuals as well and that therefore
actionable or enforceable against them before internal judges. In this case, there not only exists

52
the obligation for the State authorities to apply the international rule, but it is also permitted to the
individuals can invoke its application in court when a right of theirs is at stake.
D)Completeness: finally, at a fourth level, the international standard is placed, which, although
being operational and possibly also actionable by private individuals, is incomplete in the
content to be applied concretely and therefore requires a further national provision
integrative or specific that makes it applicable.
Once the adaptation has taken place, the issue arises regarding the rank of international standards.
they have input into the internal system in relation to other national norms and therefore the problem
arises in the event of a conflict between an international norm entered and another national norm followed;
the principle of maximum followed by the Italian legal system is that the international norm has
in the internal order the rank of the national norm that provides for its adaptation where to
for example, if an international customary norm is incorporated into a constitutional norm,
Initially, it will then have the rank of constitutional norm in the internal order, with the consequence
which will prevail over other state norms of legislative or sub-legislative rank. This does not prevent that
sometimes the international norm has a formally higher internal rank than that of the act with
which has been provided for the adaptation.
Adaptation of the Italian legal system to general international law
In the Italian legal system, adaptation to general international law occurs by virtue of
of Article 10, paragraph 1, of the Constitution, according to which 'the Italian legal system conforms to the norms
of international law generally recognized. For 'norms of law generally
"recognized" certainly refers to the customary international norms applicable to all
States while are excluded, according to constant constitutional jurisprudence, treaties as well as the norms
non-binding international, such as those contained in the resolutions of the General Assembly
of the United Nations instead, the Constitutional Court, in the Dorigo ruling of 2008, specified
that 'Article 10, first paragraph of the Constitution' refers to the expression 'norms of law'
internationally generally recognized refers to customary norms; that said they can
considered included also the binding norms, to the extent that they are 'generally recognized'
in usage and in opinion. Among the generally recognized international norms are also included,
According to jurisprudence and doctrine, the general principles of law recognized by civil nations.
The rank of the international general norms introduced by Article 10, first paragraph, of the Constitution, with respect to
legal norms of the Italian legal system, it is in constitutional principle where in case of conflict the
customary international norms prevail over all other Italian norms of lower rank
constitutional. The law that is incompatible with general international law can therefore
to be declared unconstitutional and annulled with ex nunc effect by the Constitutional Court for
contrast; the sub-legislative norm incompatible with general international law can instead,
according to the general principles of the Italian legal system, be annulled by the administrative judge or
disapplied by the ordinary judge.
The relationship between general international norms and constitutional norms, in case of conflict, is not
equally peaceful because the prevailing doctrine holds, on the assumption that it is the entire
Italian law must conform to internationally recognized standards.
of Article 10, first paragraph, of the Constitution, which states that international norms always take precedence over domestic norms

constitutional, except when it concerns the "supreme" or "fundamental" principles of the Constitution,
that cannot be subject to constitutional revision, such as those related to rights
fundamental or republican form; a partially different position has been accepted by

53
Constitutional Court in the Russel ruling of 1979 according to which customary norms
International laws existing prior to the Constitution, such as those on diplomatic immunity, prevail.
as a matter of specialty on any constitutional norm, even 'fundamental', while the norms
subsequent international customary laws prevail over the Constitution, except for the
"fundamental principles" of the Italian constitutional order as identified by it.
Constitutional Court in its jurisprudence. The Constitutional Court, in its jurisprudence
the next one did not resume the temporal criterion, having limited itself to saying (in the sentence
Baraldini) the 'supreme principles of the constitutional order of the State' and the 'rights
"inalienable rights of the person" constitute a limit to the application of international law
general, pursuant to Article 10, first paragraph, of the Constitution, in the Italian legal system. In the event of a conflict with a

the supreme constitutional principle the international norm must be disapplied by the judge
common without the need to raise the issue of constitutionality. When nonetheless the
the contrast is between the jurisdictional immunity granted under general international law to
foreign state bodies or to foreign states or to international organizations and the right to protection
judicial established by art. 24 of the Constitution, which certainly constitutes a constitutional principle
fundamental although yielding to the need to safeguard international relations which the
immunities are direct, the disapplication of the international norm must be excluded (that is, the norm must be
applied and immunity is to be granted.
Unlike general international law, there is no rule in the Italian legal system.
constitutional that deals with the adaptation to the Treaties; in particular Article 10, first paragraph, of the Constitution,
does not concern treaties, but only customary international law and general principles of
rights recognized by civilized nations, as both substantive and procedural law has
constantly reaffirmed. Thus, the doctrinal thesis previously argued that treaties are rejected.
would be automatically incorporated into the Italian legal system precisely through Article 10, first
comma, with constitutional rank by virtue of the adaptation to customary international law
Agreements must be kept. In the absence of explicit rules, the most followed procedure for treaties in
The Italian practice is of a special nature; in practice, a regulatory act is issued, usually a
ordinary law, but it may also be a constitutional law or a subordinate provision
legislative, containing the so-called 'execution order', that is, a provision that establishes that it is
"full and entire execution data" to the specific treaty mentioned therein, the text of which is published in
attachment to the Official Gazette that in the authentic language, together, where necessary, with a translation
unofficial Italian. The consequence is that state bodies are required to apply the treaty.
exactly as if it were Italian law: in other words, once the execution order is
the treaty has been issued is certainly directly applicable and processually actionable by the
singles in the internal order, unless it lacks the content of all the elements
without which its application is not objectively possible. If the order of execution does not
the treaty cannot be applied in the domestic legal system, even if the treaty is in force
for Italy on the international level and at the cost of engaging the international responsibility of
State and therefore, one can understand the distinction between ratification or accession and the order of execution:
With ratification or accession, the State commits itself on an international level towards others.
States, with the order of execution, the State instructs its bodies to apply the treaty internally.
of its legislation. If the state ratifies or adheres to a treaty and then fails to implement
the treaty is operational in the internal order, the result is that, on one hand, it is engaged in

54
international piano with other contracting states and, on the other hand, its bodies are not authorized to
apply the treaty.
If the order of execution is the most commonly used adaptation technique, sometimes instead one resorts to
ordinary procedure reproducing the treaty in an internal regulatory act (ordinary law, act
administrative, etc.): in this case, the state bodies are called to directly apply the act
regulatory in question, regardless of the fact that it has been modeled on the content. It is commonly said
that the 'special procedure' is preferable to the 'ordinary procedure' from the point of view of
timely observance of international law precisely because, thanks to the "referral" mechanism,
forces state authorities to apply the treaty as agreed and as it operates at the level
international, while the ordinary procedure is affected by any changes made in the
drafting at the time of adaptation and the complete autonomy of the latter with respect to the events
that can impact the treaty on the international level. In the first case, the state body applies
directly the treaty, albeit by virtue of an internal regulation; in the second case, on the other hand, the body
the state applies the adaptation rule, regardless of the treaty (more or less faithfully)
reproduced. Therefore, with the first method, the internal judge will not be able to apply the treaty if it has been
extinguished, while with the second method the judge will have to apply the treaty (correctly, the normative act
that has made it executive) even if extinct as long as it is in force in which it has been reformulated.
However, the ordinary procedure cannot be avoided in cases where the contractual norms from
entering into domestic law have a content that necessarily requires
an integration by further state norms and this is, for example, the case of a treaty that
provides for the functioning of a specific internal body that the contracting States must establish, this
which can only occur with an additional and specific regulatory provision: we then speak of
non-self-executing or not directly applicable. When it is the international norm that
request an additional regulatory act, the ordinary procedure must be admitted, but it is necessary
record, in international law as well as in domestic law, especially constitutional law, the
tendency to abuse the incomplete nature of the norms to justify non-application of
undesirable norms; in fact, jurisprudence sometimes tends to interpret as not self-
executing, arguing that they are too vague or merely programmatic and for this reason
it is necessary to narrow down as much as possible the hypotheses in which the non-self-executing character of a
International standards justify the refusal to apply them, thus reducing cases of abuse.
Once the adaptation has taken place, the issue of the rank of such an immense treaty arises.
in the hierarchy of Italian normative sources. The constitutional law of October 18, 2001, has enacted
Article 117 of the Constitution establishes in the first paragraph that "legislative power is exercised by the State and by the
Regions in compliance with the Constitution, as well as the obligations arising from the community regulations and
from international obligations and since this article certainly concerns treaties, the problem that arises is
It is placed after the constitutional amendment to establish whether the rank of treaties is superior to
ordinary law even when they have been made enforceable by law. In the past, the principle
The general principle applied to the rank of treaties in the domestic legal order has always been that according to which the
The treaty has the rank corresponding to the regulatory act with which the adaptation was made. Thus, it
is expressed by the Constitutional Court in the SIBRAM ruling of 1989 and in the Baraldini ruling of
2001 from which two consequences derived, depending on whether a conflict arose with the Constitution
or with a regulatory act of the same rank: in the first case, the legislative norms
they could be called unconstitutional and annulled, with ex nunc effect, by the Court
Constitutional which has, in fact, repeatedly declared unconstitutional and annulled norms

55
legislative AI treaties considered incompatible with the Constitution; in the second case for the
the resolution of the conflict applied the usual principles that govern the relationships between coordinated sources
what are "lex posterior derogat priori" and "lex specialis derogat generali". The
jurisprudence therefore tended to give precedence to treaties not only when they were subsequent, as a title
of the later law, but also when they were earlier, by way of 'special law concerning persons or
in terms of the subject matter, that is, as they governed a more limited circle of subjects or a more specific matter
restricted in relation to the conflicting internal act; the fact is that the tendency was pushing to the extent that
interpret as much as possible the internally conflicting norms in a manner consistent with
contractual rules, thereby eliminating the conflict. It should be added that for some treaties and more
specifically regarding treaties concerning human rights, judges have sometimes asserted their
immutability and non-abolition through successive incompatible laws due to their
content and regardless of the traditional interpretative criteria applicable to treaties in general.
In the ruling of Kasim and Noureddin in 1993, the Constitutional Court stated that the norms
binding international treaties on the right of the accused to be informed of the charge in Italy
a language understandable to him derives from 'a source traceable to an atypical competence and,
as such, they are not subject to repeal or modification by legal provisions
ordinary; it also admitted, in the Ciliberto judgment of 1999, that international treaties on
human rights, both universal and regional, binding Italy 'integrate, completing each other
"reciprocally in integration," with the Constitution. In general, the case law, both of merit
of legitimacy, was therefore generally oriented to interpret constitutional norms in light of
of the international treaty standards on human rights binding Italy and the latter, at least in
principle and in some sentences, as directly applicable in the Italian legal system. How much
the procedure was nevertheless not applicable to the treaties of Community law which, although they had been made
executives with ordinary law, based on the jurisprudence of the Constitutional Court have
acquired a constitutional rank as they are covered by Article 11 of the Constitution. Through the rulings of the
Constitutional Court no. 348 and no. 349 of 2007 concerning similar issues related to compatibility
of the compensation for expropriation and for acquisitive occupation, the Court confirmed that
Article 117, first paragraph, of the Constitution should be understood in the sense that in the Italian legal system treaties,
executive agreements made with ordinary law have a rank superior to ordinary law and, by extension,
with sub-legislative acts: it follows that treaties on one hand have a higher rank than laws
ordinary and on the other have a rank lower than the Constitution. The Court has specified that
being a matter of formal hierarchy, and not mere interpretation, the ordinary judges
that they believe there is an 'irreconcilable conflict' between a treaty and a legislative norm must
raise the issue of constitutionality, rather than disapplying the norm in the specific case
incompatible, therefore only the Constitutional Court is responsible for declaring any
unconstitutionality of the incompatible legislative norm.
How is what stated by the Constitutional Court in rulings n.348 and n.349 combined with
What was the orientation followed by the jurisprudence before the amendment to Article 117 of the Constitution? Is it useful?
distinguish four hypotheses: a) if the common judge is able to interpret the law in accordance with
treaty, following the criterion of the presumption of conformity already applied in the past, does not arise a
conflict and it is not necessary to raise the issue of constitutionality before the Court
Constitutional; b) if instead the judge believes that there is a conflict between the treaty and the law
solvable on the basis of the presumption of conformity, then the problem is to establish whether the municipalities
the criteria of lex posterior and lex specialis are only of an interpretive nature or are directed at

56
resolve conflicts in a strict sense. In the first hypothesis, the judge could resolve the apparent
conflict by applying the treaty, either because it is later or because it is special even if earlier; in the
the second hypothesis, instead, concerning a real conflict, unsolvable through interpretation, the judge
the municipality will have to raise the question of constitutionality to the Constitutional Court without being able to
recourse to the criteria of lex posterior or lex specialis. as for point c) if the judge
find itself facing a treaty that is prior to the conflicting law that it cannot
to invoke the specialty, neither ratione personarum nor ratione materiae, is not resolvable in hypothesis
not even with the criteria of lex posterior and lex specialis, and the judge will have to raise the issue
of constitutionality; finally d) finally, if the judge is faced with a treaty that is prior to the
law conflicting with it and whose specialty cannot be invoked, if the law repudiates
specifically the treaty confirms a strong 'insurmountable conflict' and the judge will have to
new raise the question of constitutionality.
As for the binding acts of international organizations, the Italian practice
It provides that the 'ordinary' path of reformulating the content of each is to be followed.
decision in an ad hoc regulatory act and sometimes with a legislative decree or also with a regulation
administrative; it has been criticized in doctrine because of the execution order given to the founding treaty
"covers" also the binding decisions made by the organization based on the treaty itself, so that
The adaptation acts issued ad hoc in relation to individual decisions would serve for greater purposes.
certainty and above all for the supplementary purposes of the non-self-executing norms contained in the decisions.
In conclusion, the Constitutional Court ruled on the treaties in judgments no. 348 and no. 349, that
even the norms contained in the binding acts of international organizations, whatever they may be
range of the act that received them, are 'interposed norms' superior to ordinary law, even though
inferior to the Constitution. It follows that the Executive can (contribute, together with the other States
members, a) to act, within international organizations endowed with powers
decisional, norms that are then placed at a higher level than ordinary law and cannot be
to be derogated by the ordinary legislator.
Chapter 3
Regulatory distribution of the Government Authority of the States
Section 1 - Allocation of State Jurisdiction
Once it is established who makes up the community and how the norms are created on the level
international and applicable regulations at the state level, the problem is to clarify 'who governs where' in the
world according to the criteria established by international law.
Firstly, the government authority of a state, that is, the ability to create and enforce rules,
is also referred to as 'jurisdiction' (jurisdictio) according to a meaning that dates back to doctrine
medieval, broader than that which indicates the exercise of state judicial power (jus dicere). The
"jurisdiction" of the state in the sense that here it comes into play includes the set of state powers,
that is, according to the model of 'State' accepted by international law and of European origin, the power
legislative, the executive power and the judicial power.
In the current global system, the exercise of state government authority is fundamentally
"spatial" where States are entities intrinsically territorial with exclusive competence. Their
historical statement has brought with it a spatial division of the planet, or if one prefers a
rationalization in a European sense in the exercise of governmental powers over humanity; each State,

57
thus, exercises its authority initially within a space (land, maritime, aerial)
defined by delimiting lines ("borders").
It is customary to distinguish, as mentioned, three types of state jurisdiction: legislative,
executive and judicial, a tripartition that can be found, for example, in the American Restatement Third
from 1987.
The most complex issue is the 'legislative jurisdiction' in which 'each state exercises over'
its own territory the legislative power issuing general and abstract norms applicable to events,
people and goods. Yes, it is so consolidated in the practice of criteria that, within the limits of the possible, allows
to identify the generally accepted points of equilibrium between opposing claims of States regarding
the application of their laws. These are the criteria that need to be examined now: a) territoriality, b)
nationality, c) protection, d) universality.
A) Territoriality: according to the principle of territoriality, a state can invoke any law to
people located in its territory aboard ships and aircraft registered in its own registers
even if located outside the national territory. The application of the legislation of the State
territorial is firmly established in international law. In principle, it is precisely the law of
Territorial state that under international law must regulate events, people, or things that
take place within the territory of that State. The power of the State to apply its legislation to
Anyone is valuable in principle and is not unlimited. States generally do not submit the
foreigners to any law applied to their citizens, exempting those situations they would not want.
that other states apply when they are abroad (such as the obligation of military service or the
payment of taxes not justified by commercial or professional activities carried out locally). The
the territorial principle has historically proven efficient in governing the global system, but at
It raises significant difficulties. One of the main problems concerns the localization of events.
that occur in multiple states, like when a wrongful act is committed in one state and causes a
damage in another State, that is to say it could happen that, as recently happened in the case
of Enrica Lexie, that a person is accused of having killed with a firearm, while they were
on board a ship at sea, another person who was on board another ship as well
in open sea.
Delicate problems arise regarding acts carried out through the Internet. Consider a
defamatory message posted on the Internet in Australia that harms a person's reputation
Italy. In similar cases, both concerned States claim the right to exercise jurisdiction and
it is not clear which of the two international law gives priority to; it may also happen that
the act is lawful in the State where it is carried out but unlawful in the state where the event occurs
dangerous. This means that although it is about 'virtual space', judges usually tend to
to locate the offense in the forum as if it were dealing with real space, believing that here it
produces effects or from here the message is still accessible. It is interesting to note that on the Internet,
being impossible to hit or intercept or block the message at the border with the methods
traditional applied in the physical space, the judges have instructed the provider company, rather than to
delete the message and this could in turn cause a violation of the laws of the State of
insertion into the network regarding freedom of expression, to impose an electronic filter capable of preventing
access to the incriminating message only by the State of the forum.
B) Nationality: whenever a State exercises its authority regardless of a connection
territorial, direct or indirect, refers to 'extraterritorial jurisdiction'. According to the criterion of
Nationality 'active' each state applies its laws to its own citizens or national legal entities

58
that they are authors of offenses abroad; the criterion of 'passive nationality' implies that the State
applies its laws to its citizens or national legal entities that are victims of unlawful acts
abroad
C) Protection: sometimes certain states have claimed the right to apply their own legislation to
completed acts abroad by foreigners, such as in the case of counterfeiting one's own currency or the
drug trafficking or illegal immigration, to defend or protect their own interests
"vital" or essential. Article 7 of the Italian Penal Code, for example, subjects certain crimes to Italian law.
committed abroad by foreigners, as well as by Italians, namely crimes against the personality of the State,
the counterfeiting and use of the State seal, the falsification of coins having legal tender in the territory
of the State and the abuse of office powers by Italian public officials.
D) Universality: it is believed that some crimes, due to their seriousness, are subject to jurisdiction of
all States.
Executive jurisdiction
Jurisdiction can only be exercised in its own territory or exceptionally in the territory of others.
states must always and only with their consent, as classically expressed by the Court.
Permanent International Justice in the famous Lotus ruling of 1927. Consent can
to be lent by agreement, as occurs with the so-called ship rider agreements concluded by States
United with various Caribbean states according to which American ships can, in certain cases, enter the
territorial waters of the contracting States and proceed to the seizure and arrest of vessels suspected of
drug trafficking; in the absence of consent for the execution of coercive action, it must be followed
the extradition procedure, provided that there is an extradition treaty in force between the two States
that it imposes it for the illicit in question.

Section 2 - Delimitation of the spaces of exercise of state jurisdiction

In this section, we will discuss observing the planet Earth as a whole and identifying the
legally relevant spaces of which it is composed and the related governing powers that states can
exercise according to the norms of international law.
Territory refers to the mainland and, if the state overlooks the sea, an area of space.
marine adjacent to the coast (so-called territorial sea), as well as the column of airspace above
the mainland and the territorial sea (so-called national airspace). Considering the fact that the
Earth space is today completely subjected to the power of one or another State, except for...
Created for Antarctica, which is a continent under an international regime. The marine space
instead, as one moves away from the coasts, it is partly subjected to the automatic sovereignty of
respective coastal States (namely territorial sea), in part it is subject to a regime
international (marine ocean funds), partially free (high seas). The airspace, is partly
automatically subjected to the sovereign State on the mainland and the territorial sea underlying
(national airspace), partly regulated by a functional type regime (zones of
air identification) and partly it is free (international airspace). Outer space, located at
Above the national and international airspace is free. On land, the principle applies
of territorial sovereignty, that is, the exclusivity by the State (ius excludendi alios) of all the
necessary powers for the governance of the territorial community, as limited by specific obligations
foreseen by international regulations, whether general or contractual.

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A) Terrestrial Spaces: given that the State exercises its sovereignty and jurisdiction over its territory.
territorial, understood as exclusive coercive executive power, it is necessary to identify the regulations
international agreements that establish where the territory of individual States begins and where it ends, that is how
the boundaries or borders are legally determined.
The border is usually established by a treaty, but sometimes also through an arbitration ruling or
a decision of an ad hoc Commission where, once the "delimitation" has been made through
geographical coordinates, the tangible "demarcation" on the territory is usually carried out by means of
cippi, nets, and similar. If the border runs along a river, the thalweg rule is often applied, which is the
maximum navigability or flow line, or to the median line if the river is not navigable;
For boundary lakes, the median line is usually preferred, while for mountain ranges of
one resorts to the watershed line or to the line that connects the highest peaks. There are no
customary international law norms regarding borders, except for the so-called principle.
of uti possidetis (as you possess) according to which, the States that emerged from decolonization
they must respect the boundaries of the administrative districts of the former motherland existing in
moment of acquiring independence (so-called "critical date"). In the most recent jurisprudence,
example in the judgments of 2002 in the case of the land and maritime boundary between Cameroon and
Nigeria and in the case of Sovereignty over Ligitan Island and Sipadan Island, the International Court of
Justice has repeatedly stated that in the case of border areas or islands, which it was called to
determine which of the disputing states was sovereign, the possession of a legal title (such as a
previous treaty) prevails over effectiveness if the other party has not acquiesced to the situation
effective.
B) Marine Spaces: the marine space, with the exception of territorial waters, is not subject to sovereignty.
coastal States. Historically, the claim of some States to extend their exclusive power over
Mare, a regime known as the 'dominion of the seas', came to an end around the 17th century in Europe in favor of
the opposite principle of the freedom of the seas from the maritime powers of the time; starting from the 17th century.
Some new maritime powers, primarily the Netherlands, as well as the States based on this
at first they aimed to monopolize navigation, they strongly opposed the principle of
dominion of the seas in favor of the opposite principle of the freedom of the seas. The principle of the freedom of
Maria, also promoted by a famous work of Ugo Crozio (Mare Liberum of 1609),
it stated that every State is free to use the sea in respect of the equal freedom of others; in other
terms, states cannot subject other states to their exclusive power. From the second half
of the 19th century, in turn, the regime of freedom of the seas has undergone a strong process of
erosion. Coastal states have increasingly demanded to exercise exclusive control over
sea adjacent to its shores and the process began with the establishment of the 'sea
"territorial", which, although discussed in doctrine for centuries, was formally introduced with
a width of three nautical miles from Great Britain in 1878 following the ship incident
German Franconia about two miles from the British coast in the English Channel. The subsequent
The erosion step occurred in 1945 when the President of the United States claimed the right
exclusive of exploitation by the United States of all the mineral resources present in the
"continental shelf," understood in a geological sense, American. In the meantime, the law
The international sea has been the subject of several attempts at codification: the Society of ...
Nations, with the Hague Conference of 1930, which however failed due to the conflicts that arose
on the extent of the territorial sea and on the recognition in the contiguous zone, understood as an area of
its return adjacent to the territorial sea subject to the powers of the police by the coastal State.

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The subsequent four Geneva Conventions of 1958, adopted during the
First conference on the Law of the Sea convened by the United Nations, respectively
concerning the territorial sea and the contiguous zone (1CG), the continental shelf (2CG),
fishing and the conservation of biological resources of the high seas (3CG) and the high seas (4CG).
The entire matter is now governed by the United Nations Convention on the Law of the Sea.
concluded in Montego Bay, Jamaica, on December 10, 1982 (CMB, UNCLOS in English,
Acronym for United Nations Convention on the Law of the Sea). The Convention, which has a
The general character consists of well 320 articles, "prevailing the contracting States, on the Convention
of Geneva on April 29, 1958 on the Law of the Sea (art. 311, par. 1)" and is in force on the level
international since December 16, 1994 (currently for 162 states, including Italy).

A) Inland and port waters: the "inland waters" are defined as the "waters located toward the land compared to
"at the baseline of the territorial sea" (article 8 CMB) and the concept of "internal waters" in our
regulation should be understood to include not only lakes, rivers, canals, but also 'waters
situated towards the land in relation to the baseline of the territorial sea”. As for the regime of the ports,
Article 11 of the CMB provides that for the purposes of delimiting the territorial sea, port works
more external permanent ones that are an integral part of the port system are considered part of
part of the coast.
B) Territorial sea: the 'territorial sea' is the strip of sea adjacent to the coast under sovereignty.
of the coastal state and according to a doctrine that dates back to the 18th century, the territorial waters are
they would extend to the limit of the maximum range of the coastal guns over an area
maximum of the territorial sea of 12 nautical miles (art.3 CMB); the limit of 12 nautical miles is
currently accepted in the Italian legal system in Article 2 of the naval code. Given that the limit of the sea
The territorial sea is 12 nautical miles, one must ask from where exactly the 12 miles start.
marine must be measured, it is necessary to ask ourselves what the "internal limit" of the sea is.
territorial, that is to say the so-called 'baseline' from which to measure its extent: generally unlimited
the internal line is given by the low water line, as provided by art.5 CMB, according to which "baseline"
The standard from which the width of the territorial sea is measured is the low tide line along the
coast, as indicated on officially recognized large-scale nautical charts by the State
Coastal; the low tide line is also embraced by Article 2, paragraph 2, naval code.
Italian. The fixation of the baseline poses specific problems of the 'bays' as the problem
The issue is whether bays can be closed by the coastal state draws a line that
connects the opening points. States generally have an interest in closing the bays and thus establishing
a more advanced baseline toward the sea, thus acquiring large maritime areas from it.
Article 10, paragraph 2, CMB establishes the so-called 'semicircle' criterion, whereby to have a ...
"bay" in a legal sense must be shown to be a well-defined inlet."
the area should be "at least equal to that of a semicircle with the line drawn as its diameter"
through the entrance of the cove”: the problem, in the event that a coastal state wants to close
a bay, depends on the baseline and therefore indirectly on the actual external limit of the sea
territorial and other marine areas subject to the powers of the coastal State. Article 10, paragraphs 4 and 5, CMB
establishes the '24 miles' criterion by determining that a 'bay' in a legal sense can be closed.
with a straight line connecting the entry points if it has a width of up to 24 miles, otherwise the
the baseline must be drawn by a straight line of 24 miles 'inside the bay so as to
to enclose the maximum possible surface area of waters”; this is also provided for in art.2, first

61
comma, Italian naval code which provides the possibility to completely close the inlets
having a minor opening of 24 miles. The rule of the "semicircle" and the "24 miles" meet
some exceptions: first of all, the two rules do not apply when the baseline is
determined by the straight line method (art.10, par.6, CMB) and secondly, the two rules do not
they apply to the so-called 'historical bays', understood as inlets of which the coastal State has
exercised over time sovereign rights without contestation (or with acquiescence) from the
other States (art.10, par.6, CMB). Only Italy justified the closure of the Gulf, through a
60-mile line connecting S. Maria di Leuca to Punta Alice, claiming that it is a
"historic bay." Article 15 establishes, in the absence of agreement between the parties, the criterion of the median line,
unless "by virtue of historical titles or other special circumstances, it is necessary to delimit in another way
"mode." The coastal sovereign state has the right to exercise the same powers in the territorial sea that it can
exercise on land; furthermore, in addition to the traditional limits on sovereignty exercised over
land, in the territorial sea, two specific additional limits are added: the obligation to allow
the passage to foreign ships and the prohibition of exercising jurisdiction over foreign ships.
The so-called 'right of harmless passage', established by Articles 14-17 of the 1CG and Articles 17-26 and 29-32.
CMB consists of the right that States possess, in times of peace, to transit their
navi….without first obtaining the authorization of the coastal State, provided that the passage is
inoffensive where "passage" refers to both a) the approach to the thing and b) the distancing
from the coast, both c) the lateral transit without touching the internal waters, which takes place in a 'continuous' manner
"It is quick." The law does not justify stopping and anchoring that does not depend on incidents.
ordinary navigation or force majeure and the 'passage' must be harmless, according to
Article 14 1CG must not "harm the peace, good order, and security of the state
coastal"; in the event that the passage is "offensive" (for example, when the foreign vessel is engaged in
smuggling or espionage activities) the coastal state can prevent passage through
"appropriate measures" towards both private and military ships and it can happen that the right to
innocent passage in the territorial sea may be suspended by the coastal State for reasons of
security (for example, to proceed with military maneuvers) as long as the suspension is publicized and
it should not be discriminatory between ships of different nationalities (art. 25, par. 3, CMB)
B) Adjacent area and archaeological zone: the 'adjacent area' is a marine strip adjacent to the sea
territorial. In the Geneva Convention of 1958, in the absence of a delimitation of the sea
territorial, the contiguous zone extended up to 12 nautical miles from the baseline;
Article 33 of the Montego Bay Convention, which instead provided for a maximum width of the sea
territorial of 12 nautical miles, has extended the contiguous zone to a maximum of 24 nautical miles and
corresponds to customary international law. On the contiguous zone, the coastal state may
to exercise the “necessary control” in order to, and solely for the purpose of, “preventing and repressing violations of
a) customs police, b) fiscal police, c) health police, and d) immigration police (art.24 1CG, art.33 CMB).
Italy has not established a contiguous zone, but it seems to imply it in its legislation.
on illegal immigration.
The contiguous zone of 24 miles overlaps with the "archaeological zone," introduced by Article 303 of the
The Montego Convention is also provided for by the UNESCO Convention on the protection of
underwater cultural heritage of 2001 where the coastal state can exercise control over
trade in objects of historical and archaeological character discovered at sea, assuming that the
removal of such objects from the area without his authorization results in a violation of the
own laws and regulations.

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C) Continental shelf, economic zone and ecological protection zone: how has
the International Court of Justice emphasized in its 1969 ruling on the North Sea the 'point
The historical starting point of the regime of the 'continental shelf' was the Proclamation of the President of
United States H. Truman n.2667 of 1945 in which the United States claimed the right to
exploitation of the natural resources of the soil and subsoil of the continental shelf, thus
as defined in geological science, regardless of its actual occupation or its
express proclamation. The continental shelf was specifically defined and regulated by a
of the four Geneva Conventions of 1958. Article 1 of the Convention defined the platform
continental like the "sea bed and the subsoil of the submarine regions adjacent to the coasts, but
located outside the territorial sea, up to a depth of the overlying waters allows it
exploitation of natural resources in such regions. The Montego Bay Convention introduced a
definition of the innovative continental platform, which takes into account, beyond the inequity of
criterion of 'exploitability' provided by the Geneva Convention: 'the continental shelf of
a coastal state includes the seabed and its subsoil beyond its territorial sea, for
the entire extension of the natural prolongation of the terrestrial territory of this State up to the edge
outside the continental shelf, or up to 200 nautical miles from the baseline from which it is
measuring the width of the territorial sea, when the outer edge of the continental shelf is located
at a shorter distance. On the continental shelf, the coastal state has an automatic right,
functional and exclusive exploitation of natural mineral resources and other non-living resources of the land
marine and the subsurface as well as living organisms belonging to sedentary species. In other
By definition, every coastal state has a continental shelf simply because it exercises sovereignty.
on the mainland, without the need for proclamation or effective exercise; the continental shelf
involves an exclusive right that is limited to what is strictly functional, or necessary, to
exploitation. Particularly, the freedom to lay underwater cables and pipelines remains unchanged.
of other States.
A problem that has arisen in international practice is that of delimiting the platform.
continental between neighboring or bordering States: art. 6 3CG provided that in the absence of an agreement between the
parts and unless there were 'special circumstances' that would justify resorting to a
different method, the delimitation should be carried out by applying the criterion of 'equidistance' or
of the 'midline'.
In the exclusive economic zone, every activity related to exploration and exploitation falls within it.
economic activity of the area, including "the production of energy derived from water, from currents and from
twenty. For states that are landlocked or geographically disadvantaged, the
The Montego Bay Convention provides for the right to participate "on an equitable basis" in a "sufficient" part.
of the "excess" of biological resources in the exclusive economic zone of the coastal States.
same region or sub-region by agreement (arts. 69 and 70 CMB).
D) Ecological protection zone: in 2006, Italy provided, in accordance with the Convention of
Montego Bay from 1982 and the New York Agreement from 1994 a "zone of ecological protection"
from the outer limit of the Italian territorial sea (art.1, first paragraph) up to the limit
determined based on agreements with the interested states, that is, with the bordering or adjacent states and
until their entry into force from the midline.
International Sea: beyond the marine areas subject to the jurisdiction of individual States, there is
it extends the international sea (or high seas). In the international sea, the principle of freedom applies.
navigation, overflight, laying of cables and underwater pipelines (articles 112-115), construction of islands

63
artificial and other installations, for fishing and scientific research (art. 87 CMB). The freedom regime applies
for all States, including those without coasts, and involves for each the respect of equal freedom
others but the abuse of rights is forbidden (art.300 CMB). In other words, the ship and the community of the sea
International matters are subject to the exclusive jurisdiction of the national State (so-called 'State of
flag), that is the State where the ship is registered jurisdiction that is exercised
through the warships of the national state within the limits of the exercise of sovereignty applicable to the
terra firma towards foreigners (Article 4 of the Naval Code establishes that the 'Italian ships in the high seas
seas... are considered as Italian territory.
In order to determine which State is the flag that has exclusive jurisdiction over the ship,
One wonders whether mere registration is sufficient or if a connection is also necessary.
effective, that is, a real control by the State of registration over the maritime community: it can happen
there is the phenomenon of the so-called 'flag of convenience', that is, ships whose flag the State of
The flag is purely formal and lacks real control over the ship. Article 91 of the CMB prescribes the
existence of a genuine link between the State that grants its flag and the ship,
understood in the sense that the State must effectively exercise its governing power over the ship "in
administrative, technical and social field (art. 94 CMB). The principle of the freedom of the sea.
international, and the corresponding principle of exclusive jurisdiction of the flag State over
ship, encounters a series of exceptions for which the ship can be visited and captured by
navies of other states:
A) Piracy: piracy is defined by Article 101 of the CMB as the commission of a) 'any unlawful act'
of violence or abduction or by the passengers of a private ship or aircraft; b) "any act of
voluntary participation in the activities of a ship or an aircraft, committed in the
awareness of facts such as to make the aforementioned means pirate ship or aircraft"; c) "any action
whether it is incitement or intentional facilitation to commit the acts described in letters a) and
b). It follows that it is not piracy for public or political purposes, as is usually considered the case.
terrorism, or committed by State ships, or involving a single ship or aircraft, or carried out in the
internal or territorial waters of a state.
B) Suspected piracy, suspected human trafficking, suspected statelessness, suspected use
fraudulent under foreign flag: both the Geneva Convention on the High Seas and the
The Montego Bay Convention admits a right of visit of other ships in international waters.
by warships in case of suspected slave trafficking, of suspected non-nationality of the ship
and of fraudulent suspicion of foreign flag.
C) Unauthorized transmissions from the high seas and drug trafficking: the Convention of
Montego Bay anticipates the power to arrest the ship and crew and to seize the
equipment for broadcasting on other people's ships that emit radio or television broadcasts not
authorized by not only the flag State but also the national State of
responsible (art. 109).
D) War smuggling in times of peace: excludes that international law allows for the
visit and the capture of other people's ships on the high seas to defend 'essential' or 'vital' interests of the State
intervenor.
E) Serious pollution (or threat of pollution) to the coastline resulting from an incident
occurring in the international sea: Article 221 of the Montego Bay Convention admits,
tracing back to customary international law, the power to intervene on the high seas over seas

64
others to take the strictly necessary measures to prevent or mitigate damage to the coastline
resulting from an ecological incident.
F) Right of Pursuit: according to customary international law, warships
Coastal state public service operators can pursue (hot pursuit) a foreign vessel that.
has violated its laws.
The regime of exploitation of the natural resources of the seabed
international has followed, starting from the 1970s of the last century, a path distinct from that
Continuation of navigation, more favorable to a distribution 'in favor of humanity' and not just of the alone
States. The most significant starting point can be considered resolution no. 2749-XXV of 1970
with which the General Assembly of the United Nations declared the unappropriateness and unusability for purposes
non-peaceful use of the resources of the international sea establishing that exploration and exploitation of
such resources took place 'in the interest of humanity' and through an 'organizational mechanism' from
realized through an international treaty of a universal nature and thus the
the concept of "common heritage of mankind", which then found its place
in Article 136 of the Montego Bay Convention. Article 136 states that 'The Area and its resources are the
common heritage of humanity", meaning by "Area" the marine space beyond the
national jurisdictions; precisely because of the 'Area', considered too favorable to the less ...
developed, the industrialized countries failed to ratify the Convention, until it was
came to an 'implementing' agreement, signed in New York in 1994, which actually modifies part XI
of the Convention, essentially undermining the directive and solidarity principle provided for
previously and instead introducing more advantageous free market criteria for states
industrialized and for their respective companies regarding the grabbing of resources.
G) Cosmic Space: cosmic space is the space located beyond, or above, the aerial space;
since the legal regime of the cosmic space above the territory and the
the territorial sea is different from that of the overlying airspace, particularly regarding what
regarding sovereignty, responsibility, and aircraft registration, the limit between the two spaces and
legally relevant. Among the criteria that have been proposed are the limit of the atmosphere, the limit of the
maximum altitude reachable by an airplane, the limit of gravitational attraction, the limit of
the lowest perigee of an artificial satellite and the limit of a predetermined distance from the surfaces
ground; for the moment the limit remains uncertain and empirically linked to the fact that airplanes do not
they exceed an altitude of 25 km, while spacecraft or other objects orbit at least 95 km,
from sea level: there are no airplanes or spacecraft or high space objects operating between 25 and 95 km
from sea level, except for space objects ascending or descending to or from Earth.
Outer space is primarily governed by the 1967 Treaty 'on principles governing the activities
of States in the exploration and use of outer space, including the Moon and the
other celestial bodies". The Treaty, in effect since October 10, 1967, currently for 101 states including
Italy foresees that outer space "cannot be subject to national appropriation."
through proclamations of sovereignty or acts of utilization or occupation (art.2), nor can it be
used for military purposes and in particular with nuclear weapons (art.4); defines astronauts as
"envoys of humanity" to whom the contracting States undertake to provide "all assistance
possible in case of accident, failure or forced landing on the territory of another territory
State party or of offshore anchorage. In addition to navigation, or more precisely
in orbit, cosmic space is used for radio telecommunications. Being physically
limited, although not yet exhausted, the radio waves (or frequencies) used for the radio-

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Telecommunications must, based on the principle of cosmic space, be accessible to everyone.
the States and in particular, must be available for use by all States the 'geostationary orbit',
that is, the orbit located about 36000 km (exactly at 35787 km) from the Earth directly above
of the equator and is such as to allow the rotation of satellites in sync with the Earth.
Polar Regions:
A) Article: the Arctic region mainly consists of mobile ice (pack ice) and has a relief
it is strategic, as submarines can navigate beneath the ice, and economic for the
resources of the seabed. Due to its nature and climate, and therefore the difficulties of settlement
human, the region has been the subject of claims by the states bordering the circle
Arctic territories are generally independent of effectiveness. Among the territories located within the polar circle
According to Article, Greenland is under the sovereignty of Denmark. In turn, Norway has...
claimed sovereignty over the Spitsbergen islands and other nearby islands based on occupation and
of the long-time exploitation of mineral resources, a claim that was accepted in 1920
from nine States, encountering however the protests of the former Soviet Union. Canada and the former Union
Soviet forces, on the other hand, claimed sections of the region based on the principle of contiguity in
how many inseparable geographical units would form with the areas already occupied. The sectors
would consist of triangles having the vertex at the North Pole and the base as a line that connects the
the most extreme western and eastern points of the coast of each of the two States. The so-called 'theory of
"sectors" as formulated has not been claimed by the other Arctic States (Norway, Denmark, and States
United).
B) Antarctica: Antarctica has a different nature from the Arctic region, being a true and proper
continent rich in natural resources yet to be exploited. Therefore, there have also been in
Antarctic territorial claims, essentially by seven states (so-called claimant States:
Argentina, Australia, Chile, France, Norway, New Zealand, and the United Kingdom). The claims of
sovereignties have been founded on a variety of titles, from discovery to uti possidetis, from proximity
geographical to symbolic occupation up to the theory of "sectors" already invoked by Canada and
from the Soviet Union on the Arctic region.

Chapter 4
Interstate Order
Section 1-Diplomatic Immunities

A value that international law pursues is primarily order, or if you will, the minimum.
disorder compatible with the system circumstances. The obligation is and remains assumed among the States, but the
its content also concerns and above all the behavior that each State must adopt towards
the individuals, a behavior that each State expects from all other States even when
the individual is not a citizen of it because it is not automatic that a norm containing an obligation
erga omnes protects a value that is more important than another protected by an ordinary rule such as
they demonstrate the norms on diplomatic immunities or on international trade.

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The ratio of diplomatic immunity is traditionally expressed with the formula 'one is not hindered'
Legation: immunities are granted by States, since the birth of the modern community
international and from the establishment of permanent missions in foreign countries. The immunities
Diplomatic privileges are governed by the Vienna Convention on Diplomatic Relations.
diplomacy of 1961, which, according to the International Court of Justice in the ruling of
Tehran states that its relevant articles proclaim 'the principles and rules essential to
maintenance of peaceful relations between States and accepted worldwide by the nations of all the
fedi, cultures and political affiliations" and the common opinion largely corresponds to the law
international customary; moreover, there are currently 187 States party to the Convention, that is
almost all existing States, including Italy. The Convention is in force at the level
international since April 24, 1964, is complemented by two optional Protocols, one of which provides for
mandatory jurisdiction of the International Court of Justice regarding the resolution of
controversy. As specified in Article 2 of the Vienna Convention of 1961, "the establishment of
diplomatic relations between two states... takes place by mutual consent; as well as it can accept, he
The receiving state may also refuse the person invited by the other state, without being required to provide the
reasons (art. 4, par. 2) and the sending state can, on the other hand, freely choose the people to
send (art.7), even if the receiving State may request to maintain the number of members of
diplomatic mission 'within reasonable limits' (art. 11) the obligation to grant immunities
diplomatic relations continue, according to customary international law, from the moment when
The agent enters the territory of the receiving State at the moment when, by invitation, or at the beginning of the
hostility or due to the extinction of one of the two States.
Holders of diplomatic immunity are, according to the Vienna Convention of 1961, the
diplomatic agents (Ambassadors, Plenipotentiaries, Chargés d'affaires, Ministers,
Counselors, Legation Secretaries, etc.) and cohabiting family members (art.37, par.4), as well as the
administrative and technical staff of the mission and their cohabiting family members (art. 37, par. 2)
the mission staff (art.37, para.3), the private servants of the members of
mission (art. 37, par. 4) who are not citizens of the receiving state. However, it is excluded.
generally that paragraphs 2-4 of article 37 of the Convention correspond to the law
international customary, being the state practice oriented in the sense that immunities for the
categories listed, when granted, are justified with reasons of courtesy
international (comitas gentium) rather than as a fulfillment of a legal obligation.
The diplomatic immunities provided by customary international law, as well as for the
Vienna Convention of 1961, they are:
A) Personal immunity: the person of the diplomatic agent is inviolable from the authorities of the State.
the recipient and the local authorities cannot therefore take coercive measures against the person
of the diplomatic agent (such as detention, arrest, personal search) without the consent of the
its shipping status.
B) House immunity: the diplomatic mission and the private residence of the diplomatic agent are
invulnerable by the authorities of the receiving State, who therefore cannot enter and proceed to
coercive measures (such as searches, requisition, or seizure) without the consent of the State
of sending (art. 22 and 30); the inviolability also applies to means of transportation and official correspondence
the mission, including the diplomatic suitcase.
C) Jurisdictional immunity: the receiving state may not, except in exceptional cases, exercise the
jurisdiction (civil, administrative or criminal) of sending, against diplomatic agents of

67
State of sending. In this regard, it is necessary to distinguish between 'functional immunity (or ratione materiae)' and
personal immunity (or ratione personae). Both ratione materiae immunity and ratione immunity
personae are aimed at protecting the undisrupted exercise of diplomatic function.
(the mission is impeded), but they are explained differently and have a distinct legal regime: immunity
functional can be explained, at least in principle, by considering that the act performed by the diplomat
in the exercise of his functions, instead of as a private individual; personal immunity, on the other hand, presupposes
that the act is attributed to the diplomatic agent and is intended to exempt him anyway.
from the jurisdiction of the territorial state in order to safeguard the functions at the moment is
called to perform for the state of sending. The distinction between the two types of immunity is important.
Consequences: i) functional immunity is granted to the diplomat not only while in office, but
even when the charge has ceased and covers, except for international crimes, the acts carried out
(in the exercise of its typical functions) before, during, and after the mandate, while the immunity
diplomatic personnel is entitled only when in office for acts performed (privately or
as an organ but outside the exercise of typical functions) both before and during the mandate,
I understood international crimes. Under the terms of the Vienna Convention of 1961, while
the immunity of criminal jurisdiction is absolute, meaning it does not admit exceptions (art.31, par.1), that
the civil and administrative jurisdiction admits only four exceptions: real actions concerning
properties located in the territory of the accrediting State of which the diplomatic agent is a private title
(art.31, par.1, lett. a); actions concerning successions, opened in the accrediting State for which
the diplomatic agent may appear as executor of the will, administrator, heir or legatee in any capacity
private (art.31, par.1, lett.b); actions regarding the exercise of liberal professions or activities
commercial activities carried out by the diplomatic agent in the territory of the accrediting State outside of
its official functions (art. 31, par. 1, lett. c); counterclaims or requests (and related appeal)
against the diplomatic agent who has promoted a civil process in the receiving State (art.32,
par.3).
D) Tax immunity: the territorial state has the duty to recognize to diplomatic agents
foreigners are exempt from the payment of personal direct taxes (art. 23 and 34). Instead, it does not exist
an exemption obligation for indirect taxes, usually included in the price of goods and services,
exemption which is often granted for reasons of international courtesy and on the condition of
reciprocity.
Immunities raise the issue of what can be done in cases of abuse, particularly in cases of threats.
security of the receiving state or the commission of criminal offenses by the foreign entity. In
silence of the Vienna Convention of 1961, the International Court of Justice, in the ruling
of the 1980 Tehran Hostages, stated that diplomatic law constitutes a regime
"self-sufficient (self-contained regime)", in the sense that it itself foresees the consequences
specifics of his violations. This refers to the declaration of 'unwelcome person' and
of expulsion (so-called 'passport handover') and, in the most serious cases, of the breaking of relations
diplomats (Article 9 of the Vienna Convention of 1961); also Heads of Government and Ministers
Foreign Affairs officials on official visits abroad are entitled to jurisdictional immunity, according to the ruling of 2002.
on the Arrest Warrant from the International Court of Justice, which reaffirmed that just like the
diplomatic and consular agents, some people who hold a high rank in the State enjoy
in other States, immunity from jurisdiction, both civil and criminal.
Section 2 - Immunity of Foreign States from Civil Jurisdiction

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When an individual acts on behalf of a State rather than as a private individual, the act
is charged to the State. The question then arises whether the State summoned to trial before the
judges of another State are immune from jurisdiction, both for cognizance and enforcement, in addition to
other prerogatives, such as tax immunity.
The customary international norm that, according to prevailing doctrine, dominated until the
the second half of the 19th century was that of 'absolute immunity', according to which a State could not
in no case, through its own judges, "judge" another State precisely because otherwise it
would be placed as "superior, in contrast with the principle of 'sovereign equality'."
Progressively, from the mid-19th century, the judges of some states, including Italian judges,
they began to express themselves in the sense that immunity should be denied when the foreign State
according to 'private law or management law (that is, as a private individual) and therefore should be recognized
only for acts carried out by the foreign state jure imperii (that is, as the holder of the power of
empire). There is also a codification treaty in this area, the New York Convention
of 2004 on the jurisdictional immunities of States and their property, adopted by the General Assembly
of the United Nations and not yet in force; the Convention does not expressly provide for the
distinction between acts jure imperii and jure gestionis, but essentially presupposes it since, after
having established the general rule of immunity (Article 5), enumerates according to the style of legislation
Anglo-American, a series of exceptions for which jurisdiction can instead be exercised,
exceptions all relating to acts traditionally qualified as private or otherwise excluded
from immunity. As mentioned, Article 11 of the New York Convention of 2004 excludes
immunity for work contacts that do not involve the exercise of governmental power (par.2,
lett. a), as well as when the worker enjoys immunities under international law.
Immunity of foreign states from enforcement measures: once a foreign state has been
subjected to judgment and has been convicted, it is questioned whether it is possible to proceed with execution
forced with respect to his assets. The problem, in truth, can also arise during the course of the trial.
cognition regarding any provisional coercive measures that the judge may
to grant immunity and the rule that is mostly followed in international practice is that of 'immunity
"restricted" as reiterated by the International Court of Justice in the 2012 ruling in the case of
“Jurisdictional immunity of the State,” so that enforcement on the property of foreign States is
admitted only for goods not intended for a public function, while it is excluded for those
destined for a public function.
Section 3 - Immunity of International Organizations from Civil Jurisdiction
Like States, international organizations also enjoy immunity from jurisdiction.
and from the execution before the state judges, and this, as has been seen, is one of the manifestations
of their international subjectivity; although it is an immunity in favor of organizations
international, instead of states or their organs, its purpose is to safeguard cooperation
among the States.
The question is different as to whether officials of international organizations, rather than the Organization
As such, they hold immunity. The practice is generally oriented towards recognizing immunities.
only if and to the extent provided for by treaty norms (founding treaties, seat agreements,
ad hoc agreements, etc.). It is therefore believed that customary international law does not provide for it and
concerning this, the General Convention on the privileges and immunities of the United Nations stands out
1946, in effect from March 7, 1947, currently for 158 States, including Italy, which provides for the
Recognition of immunity in favor of 'experts on mission' to the United Nations (art.6, sec.22).

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 Chapter 5
Human Person
Section 1-Foreign Citizens
If it is true that the essential function of international law is to ensure governance to the
universal community of individuals, all its rules have as their ultimate aim the protection of
human person, understood in its individual and social dimension. The global system has
need, not only of States, but also and above all of efficient and reliable States. If the authority
of a State is not solid enough, the state is unable to govern (and therefore to ...
protecting individuals, with serious repercussions on the global system, as today's failures demonstrate
States. Today in particular starting from the second post-war period, but with precedents that date back to
prohibition of the slave trade of the 19th century, the individual is instead protected regardless of
citizenship.
In general terms, the territorial state can exercise its authority over foreigners to the extent that
there exists a "sufficient link" between foreigners and the State itself, in accordance with the criteria of
allocation of state jurisdiction already examined. A state cannot, for example, impose the
military service for a foreigner in the absence of a political bond such as citizenship,
as clearly stated by the Constitutional Court in the Klieber rulings of 1992 and A.P. of
2001; it can impose tax obligations without the foreigner owning assets or carrying out activities
economics in its territory.
A) Admission, extradition, and expulsion: in principle, states are free to regulate how
they believe in the entry and exit from their territory of foreign citizens, who do not have a right
to enter or stay in the territory of a State, unless provided for by a treaty but it exists
today a strong trend, fueled again by conventional international law but
probably not corresponding to customary law, to exclude expulsions, extraditions or
removals of a foreigner when there is a risk that in the destination country there will be
commits serious human rights violations against him.
B) Administration of justice: it is generally believed that foreign citizens have the right
all minimum procedural guarantees and in particular the right to adequate legal assistance: the unlawful act
consequent to the denial of access to justice and the failure to recognize the guarantees
essential processes, including the failure to access the judge, the excessive and
unjustified length of proceedings, the failure to execute a final judgment or a
arbitral award, the corruption of the judging body, etc., is traditionally referred to as
denial of justice
C) Prevention and repression of offenses: states have the obligation to protect the person or the
to the foreign citizens, providing for and repressing offenses against them, to the extent of
proportional to the rank of the foreigner and to the circumstances of the specific case.
D) Nationalizations and expropriations: the issue of the treatment of foreign property
foreigners have recently become a concern in recent decades, especially with regard to expropriations and/or
nationalizations.
E) Respect for the public debt of the predecessor State: according to traditional opinion, it
the foreign creditor had to be safeguarded by applying, as a specific respect of the obligation
general to protect foreigners, the principle of 'acquired rights'; in the famous arbitral award
in 1925, in the case of the Ottoman public debt, it was excluded that the states arising from the dissolution

70
of the Ottoman Empire were obliged, if not through a treaty, to honor the debts already
contracts from the Empire before it disintegrated, according to the principle of "tabula rasa."
F) Respect for contracts: in principle, contracts entered into by citizens, and more often by companies,
foreigners with a State must be respected by it, even in the case where the contracting party
private has waived with a "Calvo clause" which the States neither recognize nor acknowledge.
in favor of foreigners other obligations or responsibilities than those provided for by their Constitutions and laws
in favor of the nationals and consequently the governments, in order to protect their own interests
nationals, commit not to seek diplomatic protection nor to intervene in any other way in
jurisdiction of a foreign state, as well as not to initiate a dispute before the
international jurisdictions, except in cases where regular access to the courts is denied.
In the event that an individual is treated by a foreign state in violation of the norms
constitutional rights for foreign citizens, and today also those concerning internationally recognized human rights
protected, as recently reiterated by the International Court of Justice in its 2007 rulings
And in the 2010 Diallo case, his nationality cannot intervene in 'diplomatic protection.'
against the other State requesting compensation for damages, the submission of the dispute
to arbitration. In the cited Mavrommatis judgment of 1924, the Permanent Court of Justice
The International observed that "it is an elementary principle of international law that authorizes
the state to protect its citizens who are harmed by acts contrary to international law from a
another State.” Holder of the right of diplomatic protection, as emphasized by the Court
Permanent Court of International Justice in the aforementioned Mavrommatis ruling of 1924 and the State
national and not the mistreated individual: the individual is a de facto beneficiary, however only
eventual, of the exercise of diplomatic protection. The national state may also waive
exercising its right for political opportunity reasons. Diplomatic protection can be
exercised only if certain conditions are met: first of all, the nationality of the individual
it must be continuous, that is to last until the completion of the international procedures, and
effective, that is, not fictitious. Ultimately, diplomatic protection can also be exercised
in favor of legal entities and commercial companies: however, the problem is more complex,
with regard to the identification of their nationality.
Section 2-Human Rights
There were no regulations aimed at protecting the individual from their own condition,
there were no rules aimed at protecting him in case he was without citizenship. It was during the
19th century, during which international norms against trafficking began to be established.
slaves, not without difficulties as evidenced by the famous ruling of the Supreme Court of the United States
United in 1825 in the case 'The Antilope' and the fact that slavery continued to be allowed; from
From a legal point of view, there are international norms aimed at protecting human rights both at the level
universal at a regional level, but it should be emphasized that massive participation in such
treaties, even by States that systematically violate human rights, must not lead to
to think that consent is always genuine, but they certainly show that at least on the surface and for
The commitment to respect human rights norms has weight against propagandistic ends. Among the norms
International regional agreements include: the European Convention on Human Rights of 1950, of
extraordinary relevance for the 47 European countries, among which of course Italy; the Convention
American Convention on Human Rights of 1969 and the African Charter on Human and Peoples' Rights of
1981. In the Asian continent, there is no convention on human rights, but only a 'Charter.

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Asian Charter on Human Rights and Peoples
binding.
The United Nations Charter contains few, and rather generic provisions on the protection of
human rights (art.1, par.3; art.13; art.55, lett.c; art.56; arts.62, 68 and 76); on the other hand, art.2, par.7,
The Charter provides for the incompetence of the Organization to 'intervene' in matters falling within
essentially in the "internal competence" (domestic jurisdiction) of States. Based on the
standards of the Charter regarding human rights the General Assembly adopted the Declaration in 1948
Universal Declaration of Human Rights but it is believed that it responds today, at least for essential rights,
to customary international law. The Universal Declaration has been reaffirmed, after the end
of the Cold War, following the claim of 'Asian values' against the Western idea of
universality of Human Rights. Only in 1966 were the two Covenants on 'civil rights and
political ones" and "on economic, social and cultural rights" in force respectively since March 23
January 3, 1976, at the moment for 167 and 160 states, including Italy. The two Treaties of
United Nations contain both substantive and procedural norms where the procedural norms
they discipline the mechanisms of control over the respect of substantive rights and those pertaining to the Committee
of the Human Rights (Human Rights Committee) of the United Nations, an organ established by the Covenant on
Civil and Political Rights composed of 18 members, elected for 4 years and operating individually;
provides for the Committee's competence to receive communications from individuals or groups of
individuals (art.2) that of States (art.10). The control mechanisms on compliance with the Treaties are
essentially three: periodic reports, inter-state appeals, and individual appeals, which do not lead to
in a binding decision, but their existence has some effect on the States and their
authorities that find it increasingly challenging, even on the internal electoral front, to justify
any violations.
A) Periodic Reports: the parties to either Pact are obliged to present
periodic reports to the Secretary-General of the United Nations, who in turn sends them to the Committee of
Human Rights or to the Economic and Social Council (Article 40 of the Covenant on Civil and Political Rights and
Articles 16-17 of the Covenant on Economic, Social and Cultural Rights.
B) Inter-state complaints: the states party to the Covenant on Civil and Political Rights can submit
to the Human Rights Committee complaints against other contracting States for having violated the Covenant,
provided there is a unilateral declaration of acceptance of the Committee's jurisdiction by
either of the accused State or of the accusing State (art.41).
C) Individual Communications: individuals can also submit to the Rights Committee
Human "communications" in which it accuses a contracting State of having violated only the Covenant on rights.
civil and political, provided that the accused State has accepted the competence of the Committee by ratifying,
separately to the Pact, the optional ad hoc Protocol annexed:
Among the other bodies that deal with Human Rights at the United Nations, in addition to the High
High Commissioner for Human Rights created in 1993 on
recommendation of the Vienna Declaration.
European Convention on Human Rights of 1950
The European Convention on Human Rights, completed by 14 additional protocols, has been
signed in Rome in 1950 within the framework of the Council of Europe and is in force at the international level
since September 3, 1953, currently for 47 States, including Italy. Article 1 of the Convention establishes
the general obligation of the contracting States to recognize the fundamental rights enshrined therein "to every
person subject to their jurisdiction; thus obliges all States to respect rights
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fundamental towards individuals of any nationality, including that of third countries, or
even without nationality, provided they are within their jurisdiction. The problem
of the extraterritorial exercise of jurisdiction for the purposes of applying the Convention, and of
treaties on human rights in general, is particularly important today considering that the States that
they are increasingly found to operate outside their territory for various purposes. Think of the
troops engaged abroad in peacekeeping missions or state building or military operations
organized by the Security Council, to the state authorities engaged at sea in the rescue of
migraines etc. The convention and other treaties on human rights establish that the State (whether it is
part) has the obligation to respect the human rights enshrined here even when acting outside of
national territory, it does not matter where and it does not matter against whom. In the jurisprudence of
European Court, which has often acted as a trailblazer for the supervisory bodies of other treaties on
human rights, the scope of art.1, while not unlimited, is quite broad and tends to cover all the
above-mentioned hypothesis. It follows that a contracting state, such as Italy, is obliged to comply with the
human rights established by the Convention for actions of its bodies, or attributable to it, conducted
against anyone: a) within its territory, b) outside its territory, c) within the
embassies or consulates abroad, d) in territories where the armed forces or other of its authorities are
engaged in peacekeeping operations, international administration (State building) or use
of the force with the authorization of the United Nations Security Council.
The rights provided by the European Convention are the right to life (art.2), the prohibition of torture and of
inhuman and degrading treatments (art.3), the prohibition of slavery and forced labor (art.4), the
right to liberty and security (art. 5), the right to a fair trial (art. 6), the right
the non-retroactivity of criminal law (art.7). These are so-called 'civil and political' rights or of the 'first
generation", corresponding to obligations of abstention of the contracting States, but which include,
according to the now established jurisprudence of the European Court, even "positive" obligations, understood
as obligations of the contracting States to take appropriate measures to prevent fundamental rights
protected by the Convention are violated by individuals against other individuals. The rights
Sanctions established by the Convention may be waived in "war situations" or "emergency situations."
national" in the "strict measure in which the situation requires it and, provided that such measures do not
they are in conflict with other obligations arising from international law (Article 15, paragraph 1); remain
however, in any circumstance the right to life is non-negotiable 'except in the case of death caused by
legitimate acts of war. It is important to reiterate that the European Convention, as well as other
treaties on human rights and as stated by the International Court of Justice in its advisory opinion of 1951
on the Reservations to the Convention on Genocide, contains 'erga omnes' or 'objective' obligations, that is
valid towards all contracting parties instead of bilaterally between individual pairs of States; in others
terms, if a contracting state commits an act of torture against a citizen of another
contracting state, the violation is not committed only against the national state of the victim
but towards all contracting States, which is exactly what happens if the victim is a
citizen of a third country.
Section 3-International Crimes
Based on the 'Nuremberg Principles', drawn from the Statute of the Nuremberg Tribunal created
(along with that of Tokyo) by the Allies at the end of World War II, it has established itself
in the period of the Cold War, especially in state jurisprudence, a practice aimed at favoring
as much as possible the repression of 'international crimes'; undoubtedly the norms on prevention
and the repression of international crimes is aimed at protecting the human person.
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In the international system, lacking a superior authority over States, the repression of crimes
international has traditionally been carried out by state judges. The problem is that leaving
the repression against individual state judges does not guarantee either uniformity or systematicity of
judgments. It is also for this reason that after the end of the Cold War, some were established
international criminal tribunals with which an attempt was made to address both the problems raised by
state judgments against the most serious objections raised against the Nuremberg Tribunal and of
Tokyo Tribunal, among which the idea that since they are ex post facto created courts, justice from
this remand was nothing but the 'justice of the victors'. These are two ad hoc tribunals,
respectively for the crimes committed in the former Yugoslavia and for the crimes committed in Rwanda.
The category of war crimes is usually historically traced back to the Instructions for the
regulations of the United States troops on the battlefield, a codification of the law of
war, prepared by the jurist F. Lieber and adopted in 1863 by the President of the United States A.
Lincoln (c.d. Lieber code). The category was included in art. 6, letter b, of the Statute of the Court of
Nuremberg that listed intentional murder, mistreatment or ...
deportation to compel forced labor (or for other purposes) of the civilian population in territories
occupied, intentional homicide or the mistreatment of prisoners of war or shipwrecked persons, the
unjustified destruction of cities or villages and devastation not justified by military necessity.
It is difficult to reconstruct a comprehensive list of the conducts (actus reus) that can give rise, together
to intent (mens rea), to war crimes. Article 8 of the Statute of the International Criminal Court
indicate a series of war crimes that can be assumed as a starting point
reference:
A) Intentional Homicide: homicide can result in a war crime, despite homicide being
perfectly lawful, indeed consubstantial to war, when committed outside of the
military operations but in connection with a conflict, or during military operations against
protected persons or still against military personnel using prohibited methods or means. The murderous intent
It also involves the awareness that the victim was not taking part in the hostilities.
B) Torture and cruel treatment: the Tribunal for the former Yugoslavia, as already mentioned, does not
it requires more for the purposes of torture the official quality of the torturer.
C) Sexual Violence: Article 8 of the Statute of the International Criminal Court
It includes among sexual crimes rape, sexual slavery, prostitution
forced pregnancy with the intent to change the ethnic composition of a population
(practiced in the war in Bosnia)
D) Terror against the civilian population: terrorism against the civilian population
during an armed conflict constitutes a war crime under Article 51, paragraph 2, of the I
Geneva Protocol of 1977 and Article 13, paragraph 2, of the II Protocol of 1977, provisions deemed
corresponding to customary international law by the Tribunal for the former Yugoslavia in
sentence of 2006.
E) Unjustified destruction of cities and villages or devastation not warranted by necessity
military: the Tribunal for the former Yugoslavia has considered on several occasions that the destruction
deliberate city and village destruction or devastation not justified by military necessity corresponds to
customary international law and that it is a crime that can also be committed
in an internal conflict. Destruction can also be partial, but it is limited by necessity
military action must occur on a large scale and there is a need to destroy with the awareness that
destruction is a likely consequence of the act.

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F) Destruction or Deliberate damage to cultural property: the crime of destruction or
deliberate damage to cultural property corresponds to customary international law and
it applies to both international and internal conflicts; furthermore, it is the use of the cultural asset, and not its
position, to allow to determine whether the affected asset falls or not among those protected and all of this
derived from the Tribunal for the former Yugoslavia.
E) Looting of public or private property: looting of public or private property as a crime of
war refers to any form of illegal appropriation during an armed conflict from which derives the
individual criminal responsibility of the offender.
In tracing the origins of war crimes against humanity, it is customary to make a statement.
joint action of France, the United Kingdom, and Russia carried out in 1915 in which the three states
condemned the mass killings of Armenians in the Ottoman Empire as 'crimes of the
Turkey against humanity and civilization" holding all members personally responsible for it.
Ottoman government. In the original Russian draft, it spoke of 'crimes against Christianity and the
"civilization" but the term "Christianity" was removed and replaced with the term "civilization".
presumably because the Muslims of the French and British colonies could have been offended.
At the end of the Second World War, the category of crimes against humanity was introduced.
in Article 6, letter c, of the Statute of the Nuremberg Tribunal where a series of acts was mentioned
(killing, extermination, enslavement, deportation and other acts committed against the
civilian population before and during the war, persecutions based on political, racial, and
religious) committed "in execution or in connection with a crime against peace or a crime of
war and "in violation or not of national law". Crimes against humanity, therefore
consist of "widespread or systematic attacks against the civilian population."
The material conducts (actus reus) that can lead to crimes against humanity are numerous.
these are conducts that constitute common crimes or may lead to war crimes, but that
they are configured as crimes against humanity if they are carried out as part of an attack
extensive or systematic to the civilian population:
A) Intentional Homicide: only intentional homicide, even if not premeditated, can constitute
a crime against humanity and is distinguished from the crime of extermination by the number of victims; as
war crimes can also involve a single act, while as a crime against
humanity must be part of a widespread and systematic attack.
B) Extermination: the crime of extermination consists of the intentional mass killing and not of individuals.
people and to assess the scale in order to determine whether the crime of extermination has been committed, the
The Tribunal for the former Yugoslavia deemed that the victims must be considered to have been killed during a
unique episode.
C) Slavery: slavery consists of the exercise on a person of one or
all powers inherent in property rights, even through human trafficking, in particular of
women and children (Article 7 of the Rome Statute of the International Criminal Court);
D) Deportation and Forced Transfer: deportation consists of the forced expulsion of a
or more people from one state to another with the term 'forced' which refers not only to force
physics but also to the threat of force or coercion, inducing the fear of violence.
E) Arbitrary Detention: arbitrary detention corresponds to imprisonment in violation of
fundamental norms of international law;
Torture
G) Sexual violence;

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H) Persecution: it consists of the international deprivation of fundamental human rights for reasons
discriminators of political, racial, national, ethnic, cultural, religious, or sexual gender.
Genocide
The autonomy of the crime of genocide was confirmed in the New York Convention of 1948 for
the prevention and suppression of the crime of genocide, in force since January 12, 1951,
currently for 142 countries, including Italy, it is still the reference regulatory text on the matter.
In Article 1 of the Convention, "the Contracting Parties confirm that genocide, whether it occurs
an offense committed in times of peace, so that it is committed in times of war, is a crime under the law
"international commitments they undertake." The regulation refers to both ex ante prevention and the
ex post punishment of acts of genocide; the States parties have the obligation, in other words, to do everything
that which is in their power to a) prevent acts of genocide from being committed and b) punish the
responsible once such acts have been committed.
Article 2 defines the two elements, objective (actus rei) and subjective (mens rea), required for one to
It defines the crime of genocide in its strict sense. The objective element can consist of one of the
the following five types of acts: a) the killing of a member of the group; b) serious injuries to integrity
physical or mental conditions of group members; c) the deliberate subjecting of the group to conditions of
life intended to provoke its physical destruction, total or partial; d) measures aimed at preventing
births within the group; e) the forced transfer of children from one group to another.
The subjective element, that is the intent, consists of the fact that such acts must be 'committed with
the intention to destroy, in whole or in part, a national, ethnic, racial, or religious group.
Article 2 therefore requires, in addition to intent (that is, voluntariness) for individual acts, a specific intent or
special, that is, the intention not only to cause death, or injury, etc. but also the intention to
to destroy the group (in whole or in part) as such. According to Article 3 of the Convention, they are
not only genocide as such is punishable, but also the concertation as such, but also the
conspiracy aimed at committing it, direct and public incitement to commit it
(incitement), the attempt (attempt) and complicity (complicity). As for remedies against the
violation of the prohibition of genocide, the Convention provides, in Article VI, the jurisdiction of the judges
of the State in which the genocide was committed (locus commissi delicti), as well as a Tribunal
International Criminal Court to be established at the time when the Convention was drafted. According to Article V "the
The contracting parties commit to enact, in accordance with their respective Constitutions, the laws
necessary to implement the provisions of the Convention and in particular to provide for
effective criminal sanctions.
The most controversial category is that of crimes against peace, essentially aggression: art.6, letter.
a, the Statute of the Nuremberg Tribunal does not define aggression in general terms,
limiting itself to listing a series of aggressive acts such as 'design, preparation, trigger'
the continuation of an act of aggression or a war in violation of treaties, agreements or
international guarantees, or participation in a concerted plan or in a conspiracy to
"to commit any of such acts." A definition is contained in Article 1 of the Declaration.
on the definition of aggression of 1974 by the United Nations General Assembly, which lists
then in article 3 a series of typical acts of aggression (invasion, bombing, blockade of ports, etc.)
Article 8 bis, paragraph 2, of the Statute, as amended, also defines the 'act of aggression' as
necessary prerequisite for the crime of aggression, as an unlawful act of the State, being in
doubt that an act of aggression can be committed by non-state actors; the definition of act
the aggression of Article 8 bis, paragraph 2, is very broad and seems to cover any act of aggression
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even though understanding 6 specifies that 'aggression is the most serious and dangerous form of use'
the unlawful use of force and for the jurisdiction of the Court to be triggered for the crime of aggression must
an act of aggression has been committed that, due to its nature, severity, and scope, constitutes a
manifest violation of the United Nations Charter: there is no reason to be perplexed in front of such
"rankings" of severity with which international law is increasingly filled so that everything tends to
to be 'serious' although there is always something more serious than something else. It is widely accepted today that, beyond
of the Statute of the International Criminal Court and its future, aggression is a crime
international customary law, in fact the practice is extremely scarce, the
The sources invoked in favor are quite ambiguous, and the technicalities to overcome are far from easy.
Section 4-International Humanitarian Law
A value that has always been pursued by international law is the humanization of war, whose
The initial aim is indeed to limit as much as possible the military violence against the
individuals regulating both the conduct of hostilities and the protection of victims and the core principle
the international law of armed conflicts is essentially the prohibition of gratuitousness, that is to say
of acts that are not strictly necessary to achieve the purpose of military operations. Not
it is about banning utopically any act of violence, but only those acts of violence that
they are useless or disproportionate to the purpose that the act proposes. It is in the interest of every State to avoid the
violence that does not contribute to achieving military objectives and can instead only
induce the enemy to behave equally recklessly. In recent terminology, the 'right
"International law of war and neutrality" regulates the conduct of hostilities between belligerents among themselves and
between the belligerents and third parties, while "international humanitarian law" in the strict sense regulates
specifically the treatment of war victims (wounded, shipwrecked, prisoners of war, civilians,
etc.) the first is mostly codified in the Hague Conventions of 1899 and 1907; the second in
Geneva Conventions of 1949 and the two Additional Protocols of 1977 to the Conventions of
Geneva of 1949. In other words, the purpose of the rules of international humanitarian law, although
to varying degrees, involved in an armed conflict both of an international and internal nature and to
regardless of whether it began lawfully or unlawfully, where the prohibition of the
recourse to force is aimed at ensuring the global security of the international system. It is debated whether the
international humanitarian law constitutes a body of legal norms in the strict sense. A
part of the doctrine holds that war is intrinsically 'neither lawful nor unlawful' and is positioned
Beyond the good and the evil of law (In times of war, the laws are silent), where the law is powerless,
clearly prevailing are the power dynamics and the absolute priority of victory. It is true that the
a stronger contender can, in theory, violate any norm of international humanitarian law in
any moment, just to win, but it is also true that, before winning, the balance of power with
The opponents are such that they will advise avoiding doing it.
It is usually believed that compliance with international humanitarian law, unlike the norms on
human rights should be based on reciprocity, in the sense that States should respect them only towards
of the enemy and they respect him if to the extent that they expect to obtain the respect of the enemy and
Historically speaking, since the mid-19th century, it has been the first sector of international law.
to be subject to codification; it applies to armed conflicts, both international and internal,
even if the rules governing the two types of conflicts only partially coincide. The sia
applies equally to all belligerents, to the alleged aggressor just as to the victim
of the aggression. In international conflicts, it is also applicable in relations between belligerents and states that
they do not participate in the conflict, international law of neutrality begins in fact when
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hostilities begin between two or more States, it being irrelevant whether or not there is a declaration of
war or that the enemy government has not been recognized, as long as the intensity of the clash exceeds
a minimum threshold for duration and intensity. The fundamental principles that inspire the law
humanitarian international, based on the clear cooperation between fighters (likely to be
hit) and civilians(to be spared and protected), are the principles of distinction, proportionality and
Precaution: according to the principle of distinction, attacks against civilians are prohibited; according to the
The principle of proportionality prohibits attacks against military targets that produce collateral damage.
civilians disproportionate to the military advantage gained or to be gained (art.51, par.5, lett.b, I Protocol)
but, attacks against military targets that also hit civilians (so-called collateral damage) are permitted
collateral) when damage to civilians is proportional to the military advantage; according to the principle of
Precautions: attacks without prior warning against the civilian population and attacks are prohibited.
against objectives that the belligerent has the right to choose and that he chooses among those that appear ex
more harmful to civilians compared to others (art.57, I Prot.).
Violations of international humanitarian law, stemming from its non-compliance or from
failure to take direct action to prevent other States from violating it always entails a responsibility
international law of the State and may also involve responsibility for war crimes and/or
against humanity.

Chapter 6
Sustainable Economy
Section 1 - Global Neo-liberalism and World Organization
Commerce
The global economic system is currently under the World Trade Organization.
Trade Organization, W.T.O) established at the end of the eighth round of G.A.T.T. negotiations, known
like the Uruguay Round (1986-1994), with the Marrakech Agreement of April 15, 1994, in effect from January 1
January 1995, currently for 153 members, among which there are not only states but also
the European Union. Its main bodies are the Conference of Ministers and the General Council,
both composed of Representatives of all the Members (art.4, pars.1-2), who usually deliberate at
majority of votes cast (art. IX); the Secretariat, which is headed by a Director General
(currently P. Lamy), appointed by the Conference of Ministers, who appoints the staff (art.VI)
Each member has a vote. The European Union has as many votes as there are members.
of the WTO: the Organization is funded by mandatory contributions from the Members. The purpose
The fundamental principle of the GATT, established in the preamble of the Agreement, is to conclude 'on a basis
mutual and reciprocal benefits, agreements for a gradual reduction of customs duties and the
other barriers to trade and the elimination of any discriminatory treatment in commerce
international
The prohibition of discrimination finds expression primarily in the principle of the most-favored nation,
provided by Article 1, according to which Members must grant, immediately and unconditionally,
to all other Members, for 'similar' products coming from them the greatest
Advantages: the practical consequence is that similar goods produced in different states (for example, beer
Dutch and Canadian beer should not be discriminated against, with one becoming less competitive than the other.
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due to a higher duty in the import market, but they compete on equal terms
sales opportunities according to price and quality of origin in such a way that they are guaranteed the
producers and therefore their profits. The second principle of non-discrimination of the GATT is
that of national treatment, as stipulated by art. III, according to which member States must grant
a tax and regulatory treatment (related to the sale) no less favorable than that
expected for "similar" (like products) internal products. Consider, to revisit a case that has been
talked a lot in the media, in identical tennis shoes, as a final product, but made in a
country with "normal" work and in another with child or forced labor. They are similar in meaning.
of Article I and/or of Article III? If so, WTO members are obliged not to discriminate against them, so
the potential legislative measure of a state aimed at applying to those carried out with labor
minor or forced with a duty or tax higher than those carried out with labor
"normal" in order to make them less competitive and ultimately prevent them from being purchased and
would constitute a violation of Article I and/or Article III. If not, WTO Members would not
they are required not to discriminate against them, and therefore they can freely adopt legislative measures
aimed at disadvantaging them and indirectly discouraging child or forced labor in other states.
What has just been said about child or forced labor can apply to numerous
hypotheses, concerning not only human rights but also the environment: think of tropical timber and
possible state measures that discourage its importation, in apparent violation of Article 1 and/or
of Article III, as it promotes timber (respectively) coming from another state or the
national timber, provided that tropical timber is indeed considered less "similar" to
another identical wood whose production does not involve the destruction of tropical forests
and the destruction of the planet's 'lungs.' It thus becomes clear that the trend in jurisprudence
regarding the GATT to exclude PPM that make otherwise similar products dissimilar is not the case
unacceptable as many commentators (especially Western ones) tend to say, appealing to the
diffused rhetoric of human rights of the environment, as if the problem were not actually economic and
as if they themselves did not derive an advantage from the West where they live.
The GATT establishes the principles of customs binding (Article II) and the prohibition of restrictions.
quantitative(art.XI). Based on the first, Member States are required to set and not exceed the level
maximum of their customs duties. The maximum level is included in a "list of concessions"
linked to the GATT (art. II, par. 7) legally binding. Since customs duties constitute a
trade restriction, the member states have committed to progressively reducing their levels
maximums through periodic "negotiation rounds" (art. XXVII bis), but no to abolishing them.
Unlike customs duties, quantitative restrictions are in principle prohibited by Article XII.
GATT. Quantitative restrictions refer to all general measures other than tariffs.
customs duties, like quotas and licenses for import or export. Rather
the distinction between the measures prohibited by Art. XI and those of Art. III, para. 4 is complex
Members can be exempted from GATT obligations if the conditions provided by the
"general exceptions" referred to in article XX or from the "security exceptions" referred to in article XXI. Article XX,
which is clearly aimed at contemplating the needs of trade liberalization with other values
of a non-commercial nature, provided that these are exceptions to be interpreted
restrictively, provides as exceptions the national measures that are: a) necessary for protection
of public morality; b) necessary for the protection of people's health and life, of
animals or the preservation of plants; c) related to the import or export of gold and
of silver; d) necessary to ensure the application of laws and regulations that are not incompatible

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with the Agreement; e) relating to articles manufactured in prisons; f) taxes for the protection of treasures
national having artistic, historical or archaeological value; g) related to the preservation of
exhaustible natural resources, where such measures applied together with production restrictions or
national consumption of an inter-governmental agreement on a commodity that is compliant with the
criteria directly submitted to the Contracting Parties and not disapproved by them; and others still of
lesser importance. A problem of tension between opposing values arises also between the norms of
WTO agreements and human rights, particularly the fundamental rights of workers (so-called core labour rights)
standards). The relative ease with which companies can relocate to other States in
when production costs, including labor, are lower, it creates competition for
price cuts among states to attract foreign companies (mostly multinationals) promising, or
however tolerating, less rigorous standards for the protection of workers, up to child labor or
forced, if not into true forms of slavery (so-called social dumping). Western states have
proposed to include in the WTO Agreements a 'social clause' existing in other treaties
international agreements, such as NAFTA, which provides incentives for states that protect workers and
penalizes the states that do not protect them. Developing states have always opposed it since
that the low cost of labor constitutes for them one of the most important comparative advantages for
competing in the global market. The truth is that the fundamental reason for social clauses or more in
general of respect for fundamental human rights, after in the past it was the Westerners themselves
they have practiced every kind of abuse, including but not limited to, in the States from which they now demand respect
of standards, does not lie in humanitarian reasons, although they certainly may not be lacking, but in the
the fact that the application of social clauses, as already mentioned, reverses the advantages and disadvantages to
favoring the stronger, which is exactly what the WTO system does, this time in defense of the stronger states.
weak, intends to avoid.
The Agreement on the Application of Sanitary and Phytosanitary Measures
Phytosanitary Measures, SPS) deals with the possibility for WTO members to adopt
measures aimed at protecting the life and health of humans, animals, and plants
through import bans, for example, on food or beverages affected by diseases, additives,
contaminants or toxins. The scope of application of the SPS covers all health measures and
phytosanitary measures that could, directly or indirectly, impact trade
international (art.1, par.1); art.2 establishes that members have the "right" to adopt SPS measures,
provided that: a) they are "necessary" to protect the life and health of persons, animals, or
plants (par. 1 and 2), b) they are "based on scientific principles" and "sufficient scientific evidence" (par. 2) and
c) not result in arbitrary or unjustified discrimination between the Members in which they exist
identical or similar conditions, particularly between their territory and that of other Members
they are applied "in such a way as to constitute a restriction of international trade (art. II,
par.3).
Another important agreement that complements the GATT is the Agreement on Technical Barriers to Trade.
(Agreement on Technical Barriers to Trade, TBT). The Agreement pertains to technical regulations and the
standards on products (so-called product standards) and on procedures aimed at establishing the conformity of a
product to a standard (so-called conformity assessment procedures) and 'to all products,
including those industrial and agricultural" (art.1, par.3), with the exception of health measures and
phytosanitary measures that fall under the SPS Agreement (art.1, par.5) and the 'procurement specifications
"elaborate by government organisms" which fall under the Agreement on Government Procurement, within limits
of its scope of application (art. 1, par. 4).

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The GATS is contained in Annex 1B of the WTO Establishing Agreement and consists of 31 articles.
distributed into six Parts, preceded by the preamble that indicates their general purposes. The preamble
defines the purpose of GATS as that of 'establishing a multilateral framework of principles and
Rules for the trade of services in order to expand this trade under conditions of transparency.
and progressive liberalization as a means to promote the economic growth of all
commercial partners and the development of developing countries. The GATS is usually presented as
composed of three pillars: a) the Framework Agreement in the part that establishes general obligations for all the
WTO member states, b) the national lists of general commitments for all further commitments of
individual Member States taken during the negotiations for progressive liberalization, and c) the Annexes
above dedicated to specific issues and sectors. The problem is relevant because the obligations of
GATS, as we will see, are much less "invasive" than those of GATT (for example, Article III on
national treatment) when it is considered as an incident on a good, but does not violate any
obligation of the GATS. From a subjective point of view, the GATS automatically applies to all
WTO member states. Unlike other Agreements, such as TRIPs, no exceptions are provided.
specific transitional periods in favor of developing countries; as for the scope
Objective, pursuant to Article 1, paragraph 1, the GATS applies 'to measures taken by Members that have
an impact on service trade (measures by Members affecting trade in service).
Article XXVIII, letter c) specifies that for "measures adopted by Members that have an impact on the
The 'fraudulent services' referred to in art. , par.1, include: a) measures concerning the purchase, payment or
the use of a service, b) access to the appeal, on the occasion of the provision of a service, to services for the
which member states require that they be offered to the general public and c) the presence, therein
including the commercial presence of a member state for the provision of a service in the territory
of another member state.
TRIPS (The Agreement on Trade Related Aspects of Intellectual Property Rights, Agreement)
on the commercial aspects of intellectual property rights:
Intellectual property refers to the rights over intangible assets, such as the rights to works.
of invention, on industrial models and designs. These are exclusive rights of use and/or exploitation.
economic by the owner for a certain period of time. The rights of intellectual protection in
the principle applies exclusively within the territory of individual States, to the extent that they exist,
As usual, there are laws that regulate and protect them, especially in developed countries.
particular to prevent counterfeiting or "piracy". It follows that the protection of goods
immaterial goods in one State do not have value in another State, nor is there an international norm
customary that imposes on all States to protect them once they are protected (at least) in a
single State. Since the 19th century, they have made numerous agreements, currently managed
from the World Intellectual Property Organization (WIPO) established by the Convention of
Stockholm of 1967, in effect since April 26, 1970, currently for 184 states, including Italy; from a
Therefore, the protection of intellectual property prevents the counterfeiting of products and promotes
therefore the free movement of original products would be diminished and in the longer term
inevitably also that of counterfeit products, as well as investments in research of
innovative and more advanced products. The TRIPS contains general principles, implementation provisions of
protected rights and rules on dispute resolution:
A) Copyright: copyright includes, in addition to traditional literary works,
scientific and artistic (art.9), software and databases (art.10) and rental rights (art.11). The
The duration of protection is set at a minimum of 50 years (art.12). Members may impose

81
limitations or exceptions to exclusive rights only in special cases "that do not conflict with a
normal exploitation of the work and do not cause unjustified harm to legitimate interests
from the holder (art.13).
B) Trademark: the registration of a trademark grants the holder 'the right
exclusive to prohibit third parties, unless with specific consent, from using identical or similar signs in commerce
for products or for identical or similar services to those for which the trademark has been registered, provided that
such use may pose a risk of confusion.
C) Geographical indications: for geographical indications, intended to guarantee the origin and the
quality of products (such as Parma ham, Bordeaux wine, etc.), the Members must
prevent "the use of the designation or presentation of a product of any element that indicates or
suggest that the product in question originates from a geographical area different from the actual location
of origin.
D) Industrial Designs: regarding industrial designs, Members have the obligation to ensure a
protection of industrial designs, although exceptions are allowed for new or original designs.
E) Patent: Members are required to grant patent rights in order to protect the
inventions, rights that may concern 'product or process inventions, in all the
fields of technology, whether new, imply inventive activity and are capable of having
an industrial application (art.27, par.1).
A highly debated issue, especially since the 1990s, which has raised
strong criticisms against TRIPS by the "no global" movements concern access to
medicinal products, in particular those (so-called 'antiretrovirals') for the treatment of AIDS and other diseases
epidemics such as malaria, tuberculosis, etc.; these medicines are indeed protected by rights of
patents that prevent the marketing of the corresponding so-called "generic" drugs,
containing the same 'active ingredient', and have a prohibitive cost for many patients and budgets
public, especially in developing countries. On the other hand, the market is not incentivized to
engaging in research on drugs for the treatment of "non-profitable" diseases, when they are affected
poor people who do not have the money to pay for them.
Foreign Investments
International investment law is currently at the center of attention because
essentially regulates (in the specific sense of promoting and protecting) multinational companies
which foreign investors, especially those from developed countries operating in developing countries. It is about
rules that limit the sovereignty of importing states, even after they have
freely allowed (but increasingly pressured by the need to avert economic decline and
to survive in the system) to allow the investor to operate in their territory or to provide
financial resources, and raises internal tensions between different groups, particularly among indigenous peoples and
the rest of the population of the territorial State. In investment law, investors
they can directly initiate international arbitration procedures against the host State without
to resort to the diplomatic protection of their State without first having to exhaust domestic remedies.
Moreover, unlike the exchange of goods and services, based on the relationship between states, in
foreign investments the relationships are triangular: between the investor and their host State
(regulated by an investment agreement), between the host state and the national state (regulated by a
investment treaty) and between the investor and the national State (where protection is allowed
diplomatic or the substitution of the national state in relations with the host state). Among the effects
Positive effects for the host country are counted, in the case of direct investments, as growth

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of local employment and (consequently) of tax revenue and national wealth, and a
improvement of the technological level due to the transfer of technology and know-how (when
the investor is technologically more advanced than the local ones), as well as the working conditions and
of the quality of the products. Among the negative effects, there may be a weakening, if not outright
cancellation of national identity in favor of a standardized global culture and the
disappearance of local businesses (unable to compete with global multinational companies); furthermore,
in the weaker states, there may be a lack of dependence of political power on investors, which
they thus become local institutions, and also serious phenomena of labor exploitation to the detriment of
to the environment. A portfolio investment, in turn, can increase the availability of money
in the host country, therefore the level of demand, employment, and national production, but
it can also produce perverse effects if it has a short-term and purely speculative nature, in that
in case of creating a monetary availability that can suddenly dwindle, especially today
when large amounts of financial transactions occur 24 hours a day instantly and
automated online. International investment law has peculiar characteristics that
perhaps making the field of international law more susceptible to being activated coercively; the
foreign investments are regulated by a large number of bilateral treaties (so-called Bilateral Investment
Treaties, BITs) to the point that general international law operates solely to fill
gaps in the conventional discipline or to confirm a meaning derived from the treaty by means of
international. Next to BITs, there are regional or sectoral multilateral treaties that regulate the
investments. The North American Free Trade Agreement is very important.
American Free Trade, NAFTA), concluded in 1992 between Canada, Mexico, and the United States).
Foreign investors typically enter into a contract with the host state, especially when they
it deals with particularly significant investment projects, such as those related to construction
of infrastructure or the exploitation of raw materials, such as oil extraction. The contract of
investment involves obligations for both the investor and the State, and the typical obligation
the investor's duty is to execute the project in accordance with the contract. Usually at the expense of the State
there is an obligation to grant the investor the necessary concessions and authorizations for
the execution of the project in its territory and the protection against expropriation measures or
nationalization; the contract operates in parallel to the applicable bilateral or multilateral treaties.
specific case: while the investor and the host state are obliged to comply with the contract, the state
the hosting country and the national state of the investor are required to comply with the treaty. From the perspective
Objectively, investment treaties apply to an 'investment'. The investment is defined in
a different way in various treaties and in doctrine. A common distinction in economics is between 'investments
foreign direct investment (FDI) and portfolio investments
Investment, PI); from a subjective point of view, investment treaties apply to a
"investor" which is usually defined as any natural or legal person, public or
private. Among public legal entities are the so-called 'sovereign wealth funds'
SWFs) created by a State to invest abroad in order to invest abroad the resources in
surplus in the trade balance, such as the proceeds from oil exports of the
OPEC countries.
States are free, according to customary international law, to admit or not.
foreign investors in their own territory. Another question to ask is how much they are "truly" free.
and not instead induced (if not forced) to attract foreigners, particularly multinational companies, for
continue to exist in the current global economic system and the assumption of business risks

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they are also exposed to non-commercial or political risks due to jure imperii decisions of the authority
public of the host state.

Chapter 7
Prohibition of the Use of Force
Security does not necessarily coincide with peace as it may require coercive measures, provided that
felt by the generality of the recipients as 'legitimate', that is, supported by some collective consent
It is distinct from private violence; nor is security guaranteed solely by legal norms.
International law provides measures suitable for ensuring the security of individual States, for example
allowing legitimate self-defense in response to an armed attack from others, but also and more
fundamentally, the security of the set of States and their way of forming an order
global, through measures that go beyond mere individual reactive defense.
Global security is primarily ensured by the general prohibition on the use and threat of use of
force sanctioned by Article 2, Paragraph 4, of the United Nations Charter and by general international law
where individual States cannot unilaterally resort to military force unless they
they demonstrate the existence of a justification provided by current international law. The prohibition
of the threat and use of military force provided for by Article 2, paragraph 4, is balanced by the right to
legitimate defense provided for by Article 51 and with the so-called "collective security system" governed by
Chapter VII (articles 39-51) of the Charter. The original design of the Charter is characterized by the monopoly of use.
of the force by the Security Council, without prejudice to legitimate defense. To undertake
direct military operations the Security Council should have deployed contingents
military "made available" by the Member States under "special agreements" concluded "at the latest
quickly" (art.43): the consequence is that the collective security system originally provided by the
The Charter has never been able to function and the practice has evolved towards peacekeeping missions and,
especially after the end of the Cold War and starting from the Gulf War of 1991. It is common
today the use of armed force should be regulated by national constitutions: Article 11 of the
The Italian Constitution states that 'Italy repudiates war as an instrument of assault on freedom.'
of other peoples and as a means of resolving international disputes; therefore it prohibits the
aggressive war or in any case aimed at realizing claims of Italy contested by others, while it is
common opinion that admits self-defense. Moreover, Article 11 of the Constitution 'allows under conditions of
equality with others, to the limitations of sovereignty necessary for a system that ensures peace and
justice among nations.
Article 2, paragraph 4, does not refer to "war" but to "force" in order to avoid any ambiguity regarding
to the general character (including non-military coercive measures and not only in war in
traditional sense) of the prohibition; it prohibits the very 'threat' of the use of force, but does not clarify what
it should be understood as a prohibited 'threat.' The prohibited 'force' is that used 'in relationships'
international" and it must concern the force exerted beyond the territory of the State, precisely
in the territory (or against ships and aircraft) of other States, or in others not subject to the sovereignty of anyone
State. It was also observed, based in part on Article 3 of the Declaration on the Definition of
1974 aggression, which would also involve the force exerted within the territory against
troops stationed there legally; it is instead certain that it is not prohibited, as it is employed
"within" instead of "in international relations", the force exerted within the territory against the
they rose up and, presumably, against foreign diplomatic agents and finally, the use of force is prohibited.
against territorial integrity or political independence" or "in any other way
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"incompatible with the objectives of the United Nations" understood as prohibiting the threat or use of
strength even when the territorial integrity is not violated (through the removal of a part
of the territory) or political independence (through the change of government form) of one
State, or when there is otherwise incompatibility with the purposes of the United Nations as established by Article 1
of the Charter. It is a widely held opinion, endorsed by the International Court of Justice, according to which the
the prohibition of threat and use of force is forbidden by general international law but, the
The reasons in favor of the persistent enforcement of the ban are numerous and significant: (a) all states
they categorically affirm that the use of unilateral force is unlawful, except in self-defense; (b)
when a state resorts to force unlawfully, all other states strongly protest,
they report the unlawful act; (c) even the states that resort to force assume the prohibition, as of
new emphasized in the ruling on Military Activities in Nicaragua; (e) the States that resort to
forces could be motivated in certain cases by the need to transform the existing law, which
It demonstrates that although the desired transformation may be desirable, in fact, the force is
currently used in violation of current law; (f) the states that resort to war are well
aware that force in principle is unlawful and limits their action in terms of scope
operations, weapons used, duration, purposes and justifications in accordance with common standards
existing; (g) today States generally refrain from using force, preferring methods
peaceful means of dispute resolution, judicial or diplomatic, where in the past recourse to
force was a routine, as demonstrated by the 'gunboat diplomacy', and even when they decide to
to intervene militarily, they are concerned about presenting their reasons to international bodies and
to world public opinion, thus exposing itself to denials and loss of credibility (therefore also of
legislative power) in case their reasons should prove to be unfounded or pretextual; (h) the
States are usually induced to observe the ban for various reasons, including the prospect of
"Mutual Assured Destruction" (MAD) and the current costs of wars
compared to their potential benefits, internal pressures, internal constitutional limits.
According to Article 51, 'no provision of this Statute shall prejudice the natural right of
individual or collective self-defense, in the event of an armed attack against a Member
of the United Nations, until the Security Council has taken the necessary measures to
maintaining peace and security did not take the necessary measures to maintain peace and
"international security"; "legitimate defense" is commonly understood as the armed reaction from
part of a State to an armed attack by another State. Article 51 allows for both legitimate defense
“individuale” che è quella alla quale ricorre lo stesso Stato che ha subito l’attacco, sia la legittima
collective defense, which is instead the one that other States resort to in support of the State
attached. The International Court of Justice recognized, in the 1986 ruling on Activities
military in Nicaragua, that Article 51 corresponds to general international law; requires
literally that an armed attack "occurs" so that the right to exercise can take place
legitimate defense, a term that in its ordinary meaning seems clearly to refer to a
armed attack already launched, or at least already started although it has not yet reached
the goal (so-called legitimate interceptive defense) but part of the doctrine appeals to another
word of the text of art. 51, precisely to the adjective 'natural' (inherent/naturel), which
would recognize the right to preventive self-defense in existence before the Charter which in
reality refers only to the general principle 'vim vi repellere licet', but says nothing about the
more specific meaning of self-defense. The solution that seems to prevail in doctrine today,
included in the report "A More Secure World" of 2004 prepared by a High Level Panel established

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from the Secretary-General of the United Nations and considered in line with the Webster formula, it is in the sense
that preventive legitimate defense may exceptionally be accepted when the attack is already
initiated or is ongoing, even if it has not yet hit the target, or when there is still evidence
it is certain that the attack is objectively imminent (pre-emptive self-defense); instead, it is excluded that
a state may act in legitimate self-defense even in view of possible attacks but at the moment completely
remote and hypothetical (preventive self-defense), which tend to be confused with aggression, which is
certainly prohibited. Self-defense is also permitted, according to the Nicaragua ruling, in
response to the so-called "indirect armed aggression", that is, the attack carried out by a State through
the sending of armed groups not integrated into its regular forces but operating nonetheless on its behalf
against another State through acts of armed form and provided that the attack thus defined is 'of such
gravity equivalent to an actual attack carried out by regular forces or its involvement
substantial in it" and the International Court of Justice hinted at the idea that a series of acts,
none of which, taken individually, would constitute an 'armed attack' for the purposes of self-defense
defense may justify the reaction in self-defense when considered as a whole (so-called
doctrine of "accumulation"). A problem that has arisen especially since the attacks of the 11th.
September 2001 in the United States, and more recently during the conflict between Israel and Lebanon
in 2006, whether international law admits the so-called 'legitimate defense against non-state actors' that is
the armed response by a State to attacks coming from the territory of another but carried out
by private individuals (for example, rebels or terrorists) without any involvement existing or being demonstrable
of the territorial State in the sense that legitimate defense, that is, the military response to a State in
its entirety, is only permissible if exercised by one State against another State.
International Court of Justice, even though some of its judges have expressed a contrary opinion
in their dissenting opinions, there is a tendency in doctrine to consider 'conservative' the
the position of the Court. In favor of legitimate defense against non-state actors, it is reported that both
given in practice that theoretical reasons like the war in Afghanistan in 2001, the war in Iraq of
2003. In favor of legitimate defense against non-state actors in cases of state incapacity.
to check one's control seems to lay down the practice relating to the Israeli reaction of July
2006 to the attacks by Hezbollah from the territory of Lebanon: the majority of States have admitted
In fact, Israel could defend itself but it excluded that it had done so while respecting proportionality.
and the necessity of the response, specifically targeting objectives other than the positions of the
Hezbollah is overcoming the end of their disarmament but it can be said that overall the practice does not
seems to be oriented in favor of legitimate defense against non-state actors, perhaps except in the case of
the inability of the State to control its own territory and only by proportionately hitting the
positions from which the attack was launched.
According to article 51 of the Charter, the armed reaction justified on grounds of legitimacy is subject to
requirements of necessity, which should be distinguished from "state of necessity" as justification
What justification of international wrongdoing requires that the use of force is permitted?
only if there are no alternative peaceful ways to achieve the aim of legitimate defense,
which is to repel the attack; the requirement of immediacy requires that the force can be
employed only while the attack is ongoing, or in any case within a reasonable time, given
Among other things, I speak of the geographic distance of the location of the military forces operating in
self-defense; the requirement of proportionality stipulates that the allowed force is only that
necessary in order to repel the attack and restore the status quo ante.

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A condition of operation that Article 51 expressly provides for, and which is explained within the framework.
of the centralized collective security system of the Charter, it is obligatory for the member states of the
United Nations to inform the Security Council of actions in legitimate self-defense
undertaken but it is not clear what type of "intervention" (military or otherwise, binding for the States)
members or even non-members of the Council prevent legitimate defense for individual States, but it seems that it should
to be an intervention, whatever its form and modalities, suitable to achieve the purpose of
maintaining international peace and security,” as specified in art. 51, which does not imply
necessarily the aim of protecting the attacked State but in any case the control thus
centralized is political, not legal, and is in fact precluded with respect to the permanent members.
due to their right of veto and most often so far, finding itself blocked by vetoes, the Council has not
has hardly acted at all and has almost always avoided explicitly commenting on the alleged measures
legitimate defense brought to your knowledge; it is added, in the case of collective legitimate defense, the
request for intervention (or at least consent) from the attacked State. In other words, the
Different states from the one attacked cannot unilaterally ascertain the existence of the attack and
decide to intervene and only the State can do this. Besides legitimate defense, in practice and
doctrine has discussed other exceptions to the prohibition of the use of force, specifically reprisals
in times of peace, on military interventions for the protection of citizens abroad, on interventions
humanitarian, on interventions against international terrorism and on humanitarian military interventions; we
We refer in any case to unilateral military interventions, decided by individual States and conducted if necessary.
jointly with others:
A) Armed representations in peacetime: the United Nations Charter neither admits nor prohibits the
armed reprisals in peacetime, to be distinguished from wartime reprisals adopted during
an armed conflict, limiting itself to prohibiting the use of force unlike in the past, in practice
Since the post-World War II period, armed 'reprisals' have generally been considered illegal by States.
B) Interventions for the Protection of Citizens Abroad: it is believed that a State can react with the
force as a legitimate defense against an attack on its troops when they are in another
State, provided that the limits of legitimate defense are respected, is to
to rule out that a State can do the same when its own are attacked in another State
civil citizens.
C) Humanitarian Interventions: the military intervention carried out by a state to protect its citizens
of the State on whose territory the intervention is carried out due to grave violations of human rights was
considered unlawful but more recently there are some signs in practice in the opposite direction, namely that
Now, as it is, it has mostly been justified by the intervening States as humanitarian intervention.
"aimed at preventing humanitarian disasters."
D) Interventions against International Terrorism: the military intervention carried out by a State
in the territory of another State to strike or capture suspected terrorists, usually justified as
"legitimate defense" against non-state actors has been systematically condemned in practice
before the end of the Cold War.
E) Interventions for democracy: some military interventions have been justified as
they would have established, or re-established, democracy in the state where the intervention took place.
The United Nations Charter prohibits the threat and use of unilateral military force by States.
States (art.2, par.4), except in legitimate defense (art.51), and allows the Council to adopt measures
coercive measures both peaceful (art.41) and military (art.42) in the case of a threat to peace, violation of
peace or aggression (art.39). This is the so-called collective security system, aimed at regulating the

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maintenance of international peace and security, governed by Chapter VII of the Charter; in the
the system also includes Chapter VI aimed at regulating the conciliatory function of the Nations
Unite, in the resolution of international disputes "whose continuation is likely to
putting international peace and security at risk.
The underlying idea of the United Nations collective security system is to remove the recourse
military force to the States, except to immediately respond to an armed attack, and
to centralize it in the Security Council, to which member states, under Article 24 of the Charter,
they confer…. the primary responsibility for the maintenance of peace and security
international" recognizing that the Council "in fulfilling its duties to that responsibility,
acts in their name.
The collective security system under the Security Council plays a crucial role in
global system. The problem is that it is unthinkable that a total ban on the use of force, nor
limit the use to legitimate self-defense in response to extreme armed attacks. Force must be able to
to be employed against offenders and against serious threats to the system, for the protection of victims,
based on a shared distinction between collective purpose and individual purpose of violence. The
the United Nations collective security system is therefore vital for maintaining not only
of peace not only of peace but also of international security, achieved if necessary
through military measures supported by the consensus of the majority of states. Note that it is not the Council
of Security or the United Nations, as such, to ensure the legitimacy of the use of force, but rather the
collectivity of States to the extent that (and as long as) they informally support the Council of
Safety, including its formal decision-making procedures, with the belief in its role
legitimately. The Charter assigns powers regarding the maintenance of peace and the
international security also at the General Assembly and the Secretary-General. Moreover, it is about
of secondary skills, the first because they can only be exercised through
non-binding recommendations and in any case do not include coercive measures, neither peaceful nor
a fortiori armed. The United Nations collective security system is governed by Chapter VII.
(arts. 39-51) and from Chapter VIII (arts. 52-54) of the Charter; pursuant to art. 39 it is necessary that the Council
it establishes the existence of 'a threat to peace, a violation of peace or an act of aggression.'
On the existence or non-existence in concrete terms of one of the three situations, since the Charter does not provide further
indications, the Council enjoys a broad discretion, which is easier to verify in cases of
aggression and violation of peace.
The problem of establishing what the 'limits' to the discretion of the Security Council are is very
debated. On one hand, it seems reasonable that the Council is not subject to the law.
the law), on the other hand, article 39 does not indicate any limits. It is impossible to establish in general terms and
abstract what the "limits" of the Council's discretion are in assessing whether or not there is a
a prerequisite for exercising its coercive powers, especially in an era of globalization in which
any event in principle could be considered in the sense of putting in danger the
international security: the problem, in other words, arises and is solved on a case-by-case basis. The Council
it can consider any situation as a 'threat to peace' but exposes itself to the eventual
reaction of the Member States: if the Member States as a whole (uti universi) maintain a
acquiescent position, as has essentially happened in recent years, the Council exercises
"legitimately" his powers, while legitimacy ceases in the event that the Council should
meeting the opposition of the majority of States, exercised also by their judicial bodies to
moment of scrutiny, and to apply or not, the resolutions of the Council. On the other hand, the Council

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he cannot do what he wants for the simple reason that he needs the consent of the States in their
together to carry out its decisions and because obviously there are already opportunities within it
in which the members (especially the permanent ones) counterbalance and limit each other mutually.
Given that the Security Council can act only after ascertaining that there is a
threat to peace or a violation of peace or an act of aggression, it is necessary to see what measures
The Council may then adopt. Article 39 establishes that the Council can make
recommendations, clearly in order to facilitate an amicable resolution of a dispute.
Under Article 40, the Security Council may take 'temporary' and urgent measures, that is
temporarily limited in order to prevent a "worsening of the situation", measures that must not
to prejudice the rights, claims or position of the interested parties"; article 41, on the other hand, assigns to the
I recommend the power not only to adopt recommendations but also binding decisions that
they impose measures not implying the use of force, which constitute sources of norms
international so-called 'third degree'; Article 42 provides that the Security Council adopts measures
implying the use of force. In the original design, as well as the Charter was (and continues to be)
formulated on a formal level, it was up to the Council to undertake military operations using
the military contingents made available by the Member States based on 'special agreements' from
negotiate "as soon as possible" (art.43). Since the agreements mentioned in art.42 have never been
the conclusion and the design outlined by the Charter has never been realized, in practice the Council has
finished to establish ad hoc United Nations military missions for peacekeeping
(peace-keeping) or to authorize states to undertake coercive operations, including military ones,
limiting itself therefore to the function of deliberating and checking if necessary operations carried out by
national contingents.
The practice of peacekeeping, that is, military missions with specific tasks in crisis areas, which
pure characterized the Cold War, it has greatly expanded in the subsequent period. It is customary
distinguishing "four generations" of United Nations peacekeeping that mark it
an evolution over time and some distinctive characteristics many of which in any case
they still coexist. The 'first generation' missions, whose original model is represented
from the UNEF (United Nations Emergency Force)
finalized the interposition between conflicting parties to oversee and/or guarantee the implementation of measures
of ceasefire and to prevent the resumption of hostilities. Such missions are characterized by: (a) the
the necessity of the State's consent, (b) the neutrality to be maintained between the conflicting parties, (c) the use
of the force limited to legitimate defense and (d) the recruitment of military personnel through agreements
stipulated between the United Nations and the Member States, while the direction is entrusted to a Commander.
Editor-in-Chief appointed by the Secretariat. As can be seen, this model does not correspond to the
original design of the Charter, since: (a) the quotas are obtained from time to time, instead of
to be permanently available to the Council, (b) the operations take place with prior consent
the State in deployment, thus excluding that they have a coercive character, (c) the use of
force is limited to the legitimate defense of individual soldiers engaged as peacekeepers or to mere
protection of the mission, not against the State on which the missions operate, at (d) the contingents are
found with ad hoc agreements, rather than once and for all. In reality, peace operations
they responded to the typical need of the Cold War to interpose military forces in
local or minor conflicts where the two superpowers could not confront each other directly. After
the end of the Cold War peacekeeping has evolved into a kind of
territorial administration aimed at ensuring internal security in weak and failed states,

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especially in the post-conflict transitional phase towards a democratic order, with the exercise of
"sovereign" functions, both military and civilian, that vary in number and intensity from case to case.
In the 'second generation' missions, created after 1989, the goals of the missions have
extended to the "civil" sphere, that is, political-social, such as the repatriation of refugees (UNTAG in
Namibia, UNPROFOR in the former Yugoslavia, UNTAC in Cambodia), the assistance
humanitarian (UNPROFOR and UNTAC, UNOSOM I in Somalia, UNOMIL in Liberia), control over
respect for human rights (UNTAC in Cambodia, UNAMIR in Rwanda) and monitoring of
political elections or referendums (UNTAC in Cambodia, UNTAG in Namibia). In some cases,
brought back from doctrine to 'third generation' operations, the objectives of the missions have
extended to peace-enforcement, that is to the 'imposition of peace', usually as further phases or of
reinforcement of other failed operations (UNOSOM II in Somalia, UNPROFOR in Bosnia-Herzegovina and
in Croatia), achieved through the use of military force. The traditional requirements have thus fallen.
of impartiality/neutrality and the consent of the host State. There has also been discussion, in
abstract, operations of "fourth generation" to refer to operations conducted by an "army"
institutional and permanent United Nations, which has not yet seen the light and much
it is unlikely to see the light in the near future. First of all, it is necessary to clarify that, despite their
normally limited tasks, the Peacekeeping Forces operate using weapons and
as a rule in conflictual contexts. The widespread idea that it is 'about peace' certainly captures the truth
when it is intended to highlight that such forces are not engaged in traditional military operations,
directed against a State and aimed at its annihilation, but rather to prevent a conflict from
to assist a state in post-conflict phase in restoring normal living conditions
political and institutional, it is believed that peacekeeping does not fall under Chapter VI, since
it is not direct (or at least it is not solely direct) to the peaceful regulation of a dispute between States,
nor, less so, to the imprecise limbo of chapter VI ½, but also implements the coercive measures of article 42
precisely because, although these operations are anything but peaceful, they require consent from the
sovereign or by some territorial authority. Peacekeeping operations are carried out under the
political control of the Council, which delegates it to the Secretary General. Also the strategic direction,
which should belong to the Council assisted by the General Staff Committee, for the appointment of a
Field Special Representative and a Supreme Commander, who issues the
chain of command. In addition to peacekeeping in the strict sense, it has also happened in practice that the
The Security Council acted based on Chapter VII of the Charter by organizing the proceedings.
of government functions in their entirety in territories claimed by multiple States or in a state of serious effectiveness crisis
following an international or internal conflict. The administration or government of territories and the
reconstruction of the institutional structures of the State (so-called State building) has manifested itself in
continuity, even if assuming even broader dimensions, with peacekeeping missions
multi-functional. The assignment by the Security Council to peace operations
keeping tasks related to the civil administration of territories precedes the Cold War, inserting itself
in the context of the decolonization that characterized the 1960s and 1970s of the last century, how
it happened in Namibia, in Western Sahara or in Cambodia. If the administration of the territories and
The reconstruction of the state is essential for the functionality of the global system, as it is directed
to eliminate 'empty' power and to ensure a representative and possibly effective government
reliable on the inside and trustworthy on the outside, it raises quite a few issues. First of all, as with the
peacekeeping operations and for authorizations for the use of force by States, on the
which we will discuss later, there is the problem of the normative foundation of the powers of

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Security Council. In this regard, some authors have argued that the reference model
for the transitional administrations it would be that of 'trust administration' since to
same way as the Trust Power, which committed to leading towards self-government or towards
the independence of the colonial peoples subjected to it. The thesis that refers to the administration
trust, while emphasizing the innovative nature of the governments of territories by
United Nations present with respect to the discipline reserved by the Charter to the administrations
trusteeship is problematic because the Security Council has established all the governments of territories
referring to chapter VII and not chapter XII to establish trust administrations. It is necessary
it should be added that trust administrations are hardly present today to justify the
international administrations due to their colonial connotation. Also the thesis that leads
the governments of territories to peacekeeping operations, in addition to raising the issue of the foundation
of the same peacekeeping, it is perplexing if one considers the marked differences between the two types of
operations: unlike the governance of territories, peacekeeping is limited to the conduct
only of some government functions, within States that are not in total collapse and in which
So there is some authority to engage with. The thesis based on the consent of the sovereign.
locale, although it may appear compelling at first glance, lends itself to a series of objections. First of all,
The agreement with the local sovereign does not concern the individual functions of government, but the reconstruction ex.
new state law, and one must wonder to what extent an agreement with a local authority may be valid
which presumably does not have effective control of the territory, does not represent it and will have to give way to
placed in the democratically elected authorities in the new State. It is known, secondly, that a
an agreement is invalid if concluded under threat or the use of force, according to Article 52 of the
Vienna Convention of 1969 on the Law of Treaties and Agreements between Administrators
international and local sovereignty are always the result, when not of an international war to
all effects, as in the case of Kosovo, however, of strong external pressures.
Even more problematic is the thesis that relates to the legitimacy of government acts in territories on the part of
of the UN to the founding resolutions and in particular to the category of 'coercive measures' provided for
to articles 41 and 42 of chapter VII regarding the legitimacy of government acts of territories in effect
it would merge on Article 41 for the civil component and on Article 42 for the military component. In favor
Article 41 refers to the preparatory works (specifically an amendment proposed by the
Norway at the San Francisco Conference) and the jurisprudence of the Criminal Courts for the former
Yugoslavia and for Rwanda, considering in particular that the application of Article 41 does not make
an obstacle is the circumstance that it deals with behaviors that the Security Council can
requesting from the States as it is an 'atypical measure' not expressly provided for, but
not even prohibited, from art.41. But this thesis also seems unconvincing as
the jurisdiction of criminal courts is exercised over individuals, where the coercive measures provided for
from art. 41 are clearly measures directed against a State or at most against armed groups
within a State; moreover, the measures under article 41 are intended to cease when peace and
security are no longer in danger. It therefore seems that State-building missions have little to do with
to see with the measures specifically provided for by Articles 41 and 42 as they are neither sanctioning nor
military.
Finally, the thesis that relies on the analogy of military occupation would seem to be justified by a series of
of similarities between this and the international administrations of territories, specifically from the fact that
the international authority is external to the controlled territory, it exercises supreme power, but without
formally impact the sovereignty and territorial integrity of local authorities in principle, and is

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temporary. Recently, there has been talk of 'humanitarian occupation' to emphasize how the purpose
The government actions we are talking about are generally aimed at putting an end to serious violations of rights.
humans and rebuild the State according to the standards set by existing international regulations
a focus on the protection of human rights. International security primarily requires
an 'internal reliability' of the States that make up the system and influence its decisions. Not
There can exist general and abstract rules that regulate the reliability of each individual state in a system.
that is the freedom of states and their respective peoples.
As mentioned, in the absence of its own army, the Security Council found itself
in the impossibility of operating directly as provided for by the Charter, and could not do anything else,
he has just managed to deliberate without the cross vetoes of the Cold War period, which
to "authorize" individual States to use military force in cases where it should in fact have done so
to provide directly by invoking the provisions of Article 39 of the Charter. The Council has done so.
rarely before the war against Iraq in 1991, while the authorizations were frequent, to
different purposes, later. A first example of authorization to use force can be found in
Resolutions No. 83 and No. 84 of 1950, adopted on the occasion of the Korean War, with which in
It advises, determining that 'the armed attack on the Republic of Korea constitutes a violation
"of peace," recommended military intervention in favor of South Korea against North Korea.
North, and it "authorized" the use of the flag of the United Nations by the intervening states but
operating under a unified command of the United States. As mentioned, the practice of authorizations
The use of force by states has developed mainly since the war against Iraq.
from 1991 for the liberation of Kuwait. On that occasion, the Council "authorized", with the
resolution no.678 of 1990, the member States "to use all necessary means to ensure compliance with the
Resolution 660, which had ordered the immediate withdrawal of Iraqi troops from the territory.
Kuwaiti just (illegally) annexed. Said intervention, qualified by the Court of Venice
in the Galeotto ruling of 1991 as "international police action", it was moreover lawful for
to dispense with authorization on the grounds of collective self-defense, as the Tribunal itself
Venice ultimately affirmed. Note that the phrase 'all necessary means' (all necessary
means), which will become a standard later, is understood in the sense of including the power to use
also the military force.
It happens not infrequently that the actions authorized by the Security Council are
presumably already lawful regardless of authorization, for example when consent exists
of the territorial State or when the States that "avail themselves" of the authorization intervene to
title of legitimate collective defense. The authorized conduct is or, at least prima facie, already lawful.
to consider that the authorization: (a) is actually just a recommendation, the purpose of which is not
make the action lawful, which is already lawful in itself, but to communicate to the States (which have
faculty, not the obligation, to intervene) that the Security Council welcomes their eventual
intervention; or that (b) it is actually a delegation, whose purpose is to establish that the intervening States
they act by exercising the powers of the United Nations irrespective of the rights and obligations applicable in
their relationships with each other; or that (c) it is an authorization, the purpose of which is to make lawful any possible
part of a further conduct compared to that which is already lawful or in any case a conduct whose lawfulness in
it is doubtful or controversial; or, finally, that (d) the mandate of the Council serves to make more likely
the intervention providing an 'authorization' suitable to justify the overcoming of prohibitions
internal legal (or even just de facto) matters. According to the most widespread opinion, the authorizations would be
subject to four limits: (a) they should be given ex ante, that is, before the intervention, as has

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reiterated by the European Court of Human Rights in the Behrami decision of 2007; (b) they should be
explicit, as the European Court of Human Rights reiterated in the Behrami decision;
(c) they should establish the duration or at least the objective of the intervention; and (d) they should be
accompanied by the effective control of the intervention by the Council.
Finally, the forces of the Member States whose operations have been authorized by the Security Council.
they are obliged in principle to observe general international law, in particular the law
humanitarian, for them valid beyond the Charter. Aside from the authorized conduct, any other obligation,
general or patrician, the States remain unchanged. In case of authorization, the States must therefore
respect all their international obligations, with the sole exception of the rule that prohibits the
recourse to force or other covered by authorization. It is worth noting that states are free to
participate in the authorized operations but if they decide to participate in the activities provided by their
mandates can be mandatory, with the consequence that any deviation from what is required
the mandate exceeds the authorization and they must be held accountable.

Chapter 8
International Responsibility
Section 1 - International Responsibility of States

A) Elements of international wrongdoing

A significant value pursued by international law, as by law in general, is regulation.
of the controversies.
When a State violates an international norm, that is, when it commits an unlawful act, a
responsibility, or a new legal relationship that adds to the already existing one between the State
offender and injured State (and/or other States). This is a well-established principle in international practice.
that in doctrine. The problem now is to establish which international norms govern the
responsibility of States and other international entities. The norms on responsibility are of
commonly referred to as 'secondary' to emphasize the fact that their applicability only 'kicks in' then
in the event that another rule, called 'primary' because it directly and constantly regulates
the relations between the interested parties have been violated. The responsibility of the States has also been
subject of a coding work, started back in the time of the League of Nations, and then
long protracted within the framework of the United Nations International Law Commission both
from the 1950s of the last century. The Commission approved a Draft Articles in 1996 in
first reading and then, with also significant variations, in 2001 in the second reading, which, not
it binds the States even though it is commonly referred to as 'Articles' and is increasingly often taken
in consideration in state practice and in jurisprudence, both international and national, as
reference point for the reconstruction of customary international law. Responsibility
International raises two issues: when it arises and what it consists of. The first question is raised
traditionally set by asking what the "elements" constituting the offense are
international, meaning the elements in the presence of which the offense is committed and arises the
responsibility; the second issue is to ask what "consequences" arise from the
commission of the unlawful act, as previously established, or in what sense the State
recognized as the author of an international offense "respond" for their own offense.

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The first issue that arises in the context of international responsibility is whether, or in
under what conditions does an "international illicit act" exist and in this regard, the International Court of...
Justice in the 1980 ruling on the Tehran Hostages reiterated that it is necessary for there to be...
two elements, respectively subjective and objective: (a) the attributability of behavior, active
from omission, to the State; (b) the contrary behavior, active or omissive, to an obligation
international, of any kind.
The subjective element consists of the attributability or accountability of a behavior, committed
from omissive, to a State (art.2, Prog.2001) but since States are abstract entities and act
always through individuals the problem that arises concretely is to establish when it is that a
the behavior of an individual should be considered as attributable to a State, understood in the sense of
international law, which overall subjective unit; in this regard, the 2001 project states a
series of hypotheses in which the State is held internationally responsible for acts committed by an individual
or from a group of individuals:
A) Behavior of the organ (de jure or de facto) of the State: the State must primarily ...
attributed the behaviors exhibited by "any person or entity" acting as an authority
according to its domestic law, including bodies that exercise legislative and administrative functions
and jurisdictional and "whatever its position in the organization of the State and its nature in
as much as an organ of the central government or a territorial unit of the State, which is why they must
consider all individuals and entities that act as organs of the State according to its law
internal and not just those who manage foreign policy, nor just those of the government
central. In addition to the de jure organs of the State, all individuals and the
entities that act as de facto organs of the State, that is, that act 'in total dependence'
(that is, without any margin of autonomy) from the State although not being formally its bodies,
as stated by the International Court of Justice in the cited ruling on the Application of
Convention on Genocide of 2007. The issue is framed in the context of the meaning to be attributed
under the 'jurisdiction' of the State, which we have already addressed by noting that the State exercises the
its power of government at the time of coercion or when coercion is likely or
imminent rather than through the mere enactment of a law that does not have, or as long as it does not
it has any possibility or likelihood of being applied in practice. There is obviously no question if
the body acted within its competencies and in accordance with domestic law (intra vires); more
it is problematic to establish the accountability of the State's behavior in the event that
the body acted ultra vires, that is, exceeding its powers, as provided by law
internal, or in any case in violation of domestic law. Part of the doctrine excludes it and equates
such actions to acts of private individuals with the consequent (and only eventual) responsibility of the State for not
having taken appropriate measures to prevent them. However, Article 7 of the 2001 Project, which finds
correspondence in contemporary practice particularly in the jurisprudence of international tribunals
on human rights, stipulates that the actions of its own bodies carried out should also be attributed to the State.
ultra vires or in violation of domestic law or orders received.
The state does not respond for acts of individuals except for the fact, attributable to its own bodies, of not
having prevented or expressed such acts even though able to do so (obligation of prevention or of two
diligence), Article 11 of the 1996 Project, which corresponded according to the common opinion to the
customary international law.
B) Behavior of individuals or entities exercising government power prerogatives: also
when an individual or entity is not formally an "organ" (neither by law nor in fact) of the State,

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his behavior can nevertheless be attributed to the State insofar as it has been
entrusted by the State with the exercise of prerogatives of government power, functions that is "of a character
"public functions normally carried out by state bodies" which are provided by the commentary to Article 5 where
the hypotheses of private security companies are recalled, to which state authorities have
entrusted with the task of maintaining discipline and public order within the prisons, or of the
airlines, to which powers related to the control of immigration have been assigned and of
quarantine of passengers, or even of railway companies that have been authorized to
exercise police powers.
C) Behavior of individuals or groups acting under instructions or orders or under the
control of a State: even when an individual is not an organ of a State and does not have
exercised the prerogatives of government power, an act of his is attributed to a State if it is carried out
under instructions or orders or under the control of such State (art.8 Prog.2001) according to art.5
the entity must have exercised specific public functions, without being an organ of the State
without necessarily having acted under his instructions or orders or under his control. The problem
is particularly sharp today in the context of attributing to a State, accused of
"sponsoring" international terrorism, violent actions committed by private groups, in
specifically for the purposes of legitimate defense. If the concept of "instructions" and "orders" is relatively
peaceful, regarding cases of recruitment or instigation of private individuals to act as ' auxiliaries' (like the
"volunteers" sent to neighboring states or instructed to carry out specific tasks
missions abroad) without becoming part of the official structure of the State, the term 'control' has
a controversial meaning in international law. In the 1986 ruling on
Military Activities in Nicaragua, the International Court of Justice, called to determine whether the acts
illicit behaviors of Nicaraguan deicons, contrary to international humanitarian law, were attributable to the
United States, responded negatively believing that evidence of an 'effective control' was required.
(effective control) by the United States, to be understood as control over individual actions taken
from the cons, it is proven that in this case it did not appear; the Appeal Chamber of the Court for the ex-
Yugoslavia, in the Tadić ruling of 1999, called to establish (for the purposes of its jurisdiction) whether the
armed forces of the Serbian Republic of Bosnia and Herzegovina had acted on behalf of
Federal Republic of Yugoslavia applied the overall control criterion,
to be understood as general control, rather than on individual acts, when the act 'is performed by a
"organized and hierarchically structured group"; whereas when the act is performed by individuals
individuals or unorganized groups, according to the Court, the criterion of 'control' would apply.
"effective" on individual acts. In cases concerning human rights, the Court's tendency is to
broaden the notion of effect, with the effect that judges are more easily competent to
to express oneself.
D) Behavior of individuals or groups effectively performing public functions in situations
of a lack of official authorities: in 'exceptional cases', especially in the event of a revolution, of
an armed conflict or military occupation, some governing powers such as police powers,
they can be exercised by an individual or by a group of private individuals in the absence of authority
officials and without being authorized; in such cases the behavior is still attributed to the
State (art.9 Prog.2001), but the problem is today relevant regarding failed States.
E) Behavior of organs of other international subjects made available to (or "loaned" to)
a state: when the organ of one state is used by another state to exercise functions
publications, the acts performed by the body are attributed to the "receiving" State and not to the State

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"sending party", provided that it acts with the consent and under the authority of the receiving State (art. 6 Prog. 2001)
where the hypotheses of the health authorities provided by a State to a
another State in the case of epidemics or natural disasters and the judicial bodies of a State appointed
to operate as judges of another State.
F) Behavior of the victorious Insurrectional Movement: the behaviors of the movements
insurrectionary, understood in a broad sense, including any group that at any
secession, self-determination, revolution, counter-revolution, etc. struggle against the government
legitimate, that manage to assert themselves completely replacing the predecessor government, or to
creating a new State, are attributable to the State, or to the new State, even if they have been carried out
during the uprising, when the insurgents were just private individuals or were anyway a
subject distinct from the State (art.10 Prog.2001); in the reverse case in which the insurrection has not
success, the actions taken by the insurgents cannot be attributed to the State. However, the
State responsibility for its own conduct under the other provisions of the Draft of
2001, for example, for failure to adopt the necessary measures to protect a mission
foreign diplomat attacked by insurgents.
G) Behavior recognized and adopted by a State as its own: an act that has been
completed by private individuals and not attributable to a State by virtue of any of the articles
previously examined, can finally be considered as an act of the State if and to the extent
in which that State recognizes it and adopts it as its own (art.11 Prog.2001). The example is the sentence
on the Hostages in Tehran in 1980 where the International Court of Justice stated that, in a
At first, the attack and the hostage-taking of American diplomats could not be
attributed to the Iranian State as it was not demonstrated that, at the time of the facts, the occupants
were actually acting on behalf of the State, thus the State is only liable for the
failure to adopt measures aimed at preventing harmful action; however, at a later time, it has
specifying that the approval that such action had received from the Iranian authorities, in
particular from Ayatollah Khomeini, would have had the effect of changing the legal nature
of the situation making the occupation of the embassy and the hostage-taking acts
attributable to the Iranian state and thus transformed the occupiers into agents of the state.
The objective element of international wrongdoing, as already mentioned, consists in the contrast of
behavior, either commissive or omissive, with an international norm of any kind (art.12
Prog.2001). The contrast with an international norm integrates the objective element of the offense to
condition that certain circumstances do not exist that exclude the international illegality and that for
For this reason, they are called 'causes of exclusion of international illegality':
a) Consent of the injured State: when the injured State is the victim of an act committed by another State in
if contrary to an international norm gives its consent to the unlawful act, the legal result,
according to the traditional principle volenti non fit iniuria (to whom consents, no injury is done), it is
the exclusion of the unlawful nature of the act, unless the violation concerns jus cogens and in the
The commentary of article 20 specifies that consent can be given orally or in writing, it must
preventing from a genuinely representative government (and not from a purely nominal government or
"puppet", perhaps installed by the invading State) and being valid (that is, not affected by defects of
will).
B) Countermeasures and Legitimate Defense: countermeasures are causes for exclusion.
of international illicit activity and the same can be said for self-defense (art.21 Prog.2001)

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C) Force Majeure and Unforeseeable Circumstances: both "force majeure" (art.23 Prog.2001) and "unforeseeable circumstances"
"fortuitous" operate as causes of exclusion of international illegality: in the case of "force
greater" the violation of international law is conscious, although usually not intentional, or
at least not unintentionally, but the organ-individual cannot behave differently being
forced by an 'irresistible, unexpected, and external' event, that is, by an absolute impossibility,
such as the case of a malfunctioning submarine being dragged by the current in inland waters
of another State; in the case of "force majeure" the violation of international law is
unaware, such as unauthorized air penetration due to a deviation
caused by the wind without the pilot realizing it.
D) State of Necessity: it is controversial in doctrine to what extent the "state of necessity" operates as
cause of exclusion of an international offense committed by a State in order to avert a danger
serious, imminent and not voluntarily caused as determined in the arbitration ruling of 1990
in the case of the Rainbow Warrior, in the specific hypothesis of 'extreme danger' (détresse/distress, art. 24
Prog.2001); in this case the hypothesis is committed in order to avoid a serious, imminent danger,
not involuntarily caused concerning the individual-organ who is the author or the individuals related to him
entrust yourself, like in the typical case of a foreign ship seeking refuge in a port without authorization
of the coastal state to escape the storm. Furthermore, it was specified that 'the state body has a
choice, at least between a behavior that does not conform to an international obligation and a
behavior in accordance with such obligation but which involves a sacrifice that is unreasonable
to request. Another specific hypothesis of a state of necessity peacefully accepted by the law
current general international law is the intervention in international waters on other people's ships in case of
ecological incident. It does not seem, however, that current international law admits the so-called.
"ecological necessity", that is, a general principle that would allow states to protect, also
with illicit acts in themselves, their own natural environment. It is more difficult to consider as a cause of
exclusion of international wrongdoing the state of necessity understood as justification for actions
aimed at safeguarding any "essential interest" of the State as a whole; according to
Art. 25, paragraph 1, the state of necessity operates only if the action to be justified "constitutes the only
way... to safeguard an essential interest in the face of a serious and imminent danger
State that invokes it and if it does not "significantly harm an essential interest of the State or States."
in relation to whom the obligation exists, or of the international community as a whole." Moreover,
Article 25, paragraph 1, specifies that the state of necessity cannot be invoked to justify the violation.
of an obligation "that excludes the possibility of invoking necessity" (like some contractual provisions of
international humanitarian law that expressly excludes the invocation of military necessity
) and lastly we must say that article 26 excludes the possibility of invoking the state of necessity
when a norm of jus cogens is violated.
It is worth noting that Article 25 includes among the 'essential interests' that must be protected against
A state that invokes the state of necessity not only those 'of other States' seriously concerned but
also those of the 'international community'. The state of necessity must be distinguished from the requirement for purposes
of the exercise of legitimate defense, since legitimate defense only concerns that
specific form of defense of essential interests of a State consisting in reacting to an attack
armed by another State. Even legitimate preventive self-defense is subject to a criterion of
limited necessity to a potential attack from others and not to any type of threat to interests
essentials of a State; the current U.S. anti-terrorism policy does indeed seem to invoke the
self-defense in such broad terms as to "overflow" into self-preservation and the state of necessity

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for the defense of its vital interests. The so-called economic necessity, that is, the possibility of invoking the
state of necessity represented by a serious economic-financial crisis of a State in relation to
payment of the foreign debt but the issue concerns both the inclusiveness of the economic necessity
in the notion of 'state of necessity' as a justification that can be invoked by a State in
confronting another State, both for its operations to justify the violation by one State
of private law contractual obligations towards private individuals, rather than obligations
internationals.

The Guilt
The doctrine agrees in believing that the two elements, subjective and objective, just illustrated are
necessary for it to be referred to as an international wrongdoing.
By fault, both intent, meaning intentionality, and fault in the strict sense, meaning negligence, are understood.
or the failure to exercise due diligence. In the first case, the individual organ intentionally
commit the unlawful act; in the second, although not intending to commit it, does not take the measures
reasonably adoptable, and the average adopted by States in similar situations, to prevent the
Damage; intent and fault are clearly subjective attitudes, if not 'internal', which hardly
they add icons to the Sati.
International responsibility actually seems to disregard the subjective attitude of the
individual-organ. It is unlikely that states will start discussing whether the individual-organ that
has violated international law either intentionally or through negligence, usually the
Accused parties try to evade responsibility by invoking a cause for exclusion of wrongdoing.
international, taking on the burden of proof that there is indeed a circumstance suitable for
justifying the unlawful act, but there are unlawful acts that are structurally connected with intent or
negligence, such as the commission of an act of genocide (which is characterized by the intent to
destroying an ethnic group) or the violation of the obligation to protect foreigners:
in these cases it can be said that fraud or fault constitute a requirement of the unlawful act, but in practice
this is a superfluous clarification because intent or negligence are confused with the violation of
norm, that is, with the objective element. In short, it does not seem that guilt is an element
"further" relevant in international wrongdoing, even if it may be relevant for other purposes such as
that of quantifying the damage to be compensated.
The Damage
The "damage," understood as
the prejudice that is both 'economic-property' and 'moral' inflicted on the victim where significant
the violations of the State of the rules regarding the treatment of its own citizens are important,
they do not cause harm to other States. Naturally, there is an inherent 'harm' related to the violation (so-called
legal) but such damage completely merges with the objective element of the unlawful act.

B) Consequences of international wrongdoing and liability for lawful acts

Once it is established that an act is contrary to what is prescribed by international law (element
objective) and is attributable to a State (subjective element), the problem arises of establishing which
consequences of the unlawful behavior, or what the 'responsibility' of the subject involved consists of
author.
In the past, the issue of international responsibility could be framed in terms of the obligation to
repair, wondering whether the State that violated international law (at the time
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mostly the rules on the treatment of foreigners) was required to provide reparation by restoring
either restoring the situation that existed prior to the wrongdoing or providing, when the restoration of the status is
as before it was not possible, a monetary compensation, or still formally recognizing
the illegal act committed through symbolic behaviors but, with the establishment of the prohibition on use.
of the force, self-defense has begun to be admitted precisely in order to obtain reparation and the
the unsatisfied request for the repair was considered as one of the conditions
Preliminary measures for the exercise of self-defense. Today, repair and self-defense both constitute
consequences of international wrongdoing without necessarily establishing a relationship of prerequisite.
Being in fact the system devoid of a universal authority, self-defense remains the last resort tool for
deterrence is for reacting to others' wrongdoings, although in practice, due to the current
global interconnection is becoming less and less effective and used by states.
Countermeasures
The "countermeasure", formerly known as reprisal, is an unlawful reaction to an unlawful act.
others who, precisely for this reason, are considered lawful and therefore act as a cause of
exclusion of the international wrongdoing, provided that it is obviously carried out against the offending state.
Typical examples of countermeasures are trade embargoes, that is, the prohibition of trade from or
towards the offending state, the freezing of assets or bank accounts of the offending state, the
suspension of air services with the offending State in violation of a treaty in force between the two
States, etc.
A countermeasure may consist in principle and be aimed at responding to the violation by others of
any type of international norm. The term reprisal dates back to the time when reprisals
the arms were lawful, while the term countermeasure is more recent and tends, in doctrine and in
practice, referring to peaceful countermeasures, as in the ruling on Military Activities in
Nicaragua of 1986 by the International Court of Justice; different is the 'retaliation' that
consists of an act that is lawful in itself, although unfriendly, taken in response to others' acts, lawful or
illegal. Since the countermeasure is an unlawful measure in itself, but considered lawful due to the fact that it
To constitute an unlawful act by another, it is also the non-fulfillment by another.
There is no doubt that customary international law allows for the use of countermeasures.
peaceful, even subjecting them to a series of limits, as provided for in articles 49-54 of
Project 2001. The operating limits established by Project 2001 are:
A) Proportionality (art. 51): It is commonly believed that countermeasures must be
proportionate or at least not manifestly disproportionate to the offense and that they are unlawful
for the part that may exceed proportionality, while they would be automatically
proportional when they are reciprocal, that is, when they consist of the same violation as that
sudden. It has never happened that any state that has adopted countermeasures has ever
worried about how to "dose" the reaction (for example, the amount of goods "blocked" from the citizens of the
Offending state) to respect proportionality, except for humanitarian limits nor the states
They undergo a countermeasure that they generally complain is disproportionate.
B) Temporariness (art.49, par.2, art.52, par.3 and art.53): there is no doubt that a countermeasure
it can be maintained as long as the illegal act that justifies it persists and therefore cease as soon as the illegal act ends
immediately ceases. Temporality distinguishes countermeasures in general from the exception of
non-fulfillment of a treaty applied with extinguishing effect, rather than just 'suspensive'.
C) Respect for the prohibition of the use of force, human rights, international law
humanitarian law and jus cogens: it is common in doctrine to hold the opinion that they cannot be adopted

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countermeasures against norms belonging to jus cogens, for example in violation of the
rules that prohibit the use of armed force or that require respect for human rights
fundamental because the underlying idea p is that if a rule is binding, being mandatory, through
If it is violated for reasons pertaining to treaty or other reasons, then it cannot be violated even as a countermeasure.
D) Respect for diplomatic immunity: according to the prevailing opinion in doctrine the
Countermeasures cannot consist of the violation of diplomatic immunities. In the ruling
from 1980 on the Hostages in Tehran, the International Court of Justice stated that the right
diplomatic constitutes a 'self-contained regime', in the sense that 'the law
The diplomatic body itself provides the necessary means of defense, as well as sanctions, against illegal activities.
orders from members of diplomatic missions and the expulsion of diplomats who have committed abuses
own functions.
E) Prior experiment of the agreed means of resolving the dispute: it is believed
commonly that a countermeasure can be adopted only as a last resort,
precisely after having addressed the offending state with a summons to provide reparation or after
having initiated the negotiations for the repair or even after waiting for the request for
repair has been refused or remains unsatisfied and it is also believed that a State does not
may take countermeasures when there is an arbitration compromise between the parties for the recourse to a
impartial body and all the more so when the dispute is already sub judice where arbitration is not provided
of suitable means to ensure the achievement of the purpose of the countermeasures, including that of
to compel the other party to submit to arbitration and to comply with the ruling. Furthermore, before
the injured State must request the offending State to fulfill the obligation
of repair and inform him of any decision to take countermeasures (art. 52, par. 1, lett. a and
b); the state practice in truth does not attest that the injured State must proceed with intimidation activities or
they negotiated before adopting a peaceful countermeasure, even when they are obligated to do so.
conventionally to submit the dispute to a judge or to an international arbitrator.
In addition to the distinction between peaceful and armed countermeasures, it is also necessary to distinguish between countermeasures.

individual measures and collective measures: the former are those that the State itself can resort to
which is the victim of the unlawful act, while the second are those to which all States could resort.
of the international community (erga omnes) or, in the case of the violation of a multilateral treaty,
all the States that are parties to it (erga omnes contracting parties).
The International Law Commission states that the right to invoke responsibility
it includes the right to request the cessation of the unlawful act, assurances and guarantees of non
repetition as well as the repair of the interest of the damaged State or the beneficiaries of the breached obligation
(art.48, par.2); in any case, art.54 of the Draft provides that States other than the injured one
they can only take 'lawful measures' and the related comment is expressed in rather skeptical terms
about the possibility that such measures, rather than mere reprisals, are actual countermeasures,
that is, lawful measures, but not in themselves, rather insofar as they are adopted in response to another's wrongdoing.
The International Court has not failed to reaffirm the existence of international obligations erga omnes.
especially in the 1995 ruling on East Timor where it stated that the right to
self-determination of peoples has erga omnes character, a statement that the Court itself has reiterated
in the 2004 opinion on the Wall in Palestine: this last opinion is taken from the provisions of
Project from 2001 that actually refers to violations of jus cogens (art.41) where it is addressed.
the obligation of all States not to recognize the unlawful situation arising from the construction of
wall and not to aid in maintaining the situation created by the wall.

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Repair
As stated by the Permanent Court of International Justice in the 1928 ruling in the case of the Workshop
Chorzow, 'it is a general principle of law that anyone who commits a wrongdoing must provide compensation.'
and the repair must, as far as possible, erase all the consequences of the other wrongdoing and
restore the situation that, with every possibility, would have existed if the act had not been
salesperson
The traditional forms of remedy for international wrongdoing, as indicated by Article 34 of the
Project from 2001, there are three and they can be used either individually or in combination.
them:
A) Restitution in integrum: restitution in integrum consists as provided by Article 35 of the Project
2001, in the restoration of the status quo ante, that is, the situation that existed before the completion
of the illicit, provided that it is materially possible and also adds an additional condition that
the restitution does not impose a burden disproportionate to the benefit that
it would derive from obtaining restitution instead of compensation, but it does not seem that the criterion of
proportionality corresponds to customary international law. The restitution consists of
typically the return of goods, people, documents, territories unlawfully held,
as well as the enforcement in specific form of contractual obligations.
B) Satisfaction: Article 37 of the 2001 Project provides that when the prejudice cannot be
repaired through restitution or compensation, the responsible state has the obligation to provide
"satisfaction" which may consist in the recognition of the unlawful act committed, in expressions of
regret, in the presentation of formal apologies, in the homage to the flag of the offended State, in
payment of symbolic amounts, in the punishment of guilty individuals, etc. In the judgment of
In 1949 in the case of the Corfu Channel, the International Court of Justice stated that
the mere finding of the wrongdoing by a judge also constitutes "satisfaction".
international, a practice today common also in the jurisprudence of other international judges, such as
for example, the European Court of Human Rights and the Arbitration Tribunals.
C) Compensation: compensation for damage consists of the payment of an amount commensurate with
prejudice caused by the unlawful, as the International Court of Justice has reiterated multiple times in the
sentence on the Gabcikovo-Nagymaros Project of 1997, 'it is a well-established rule of law'
International law states that an injured state has the right to obtain compensation from a state that has caused harm.
committed an intentionally unlawful act for the damage caused.” Compensation is always
admitted in case of violation of the rules on the treatment of foreign citizens: if the foreigner
It is an individual-organ the compensation concerns both the damages caused to the individual and the damages caused.
to the function and therefore to the State. In the 1949 ruling in the case of the Strait of Corfu, the Court
The International Court of Justice condemned Albania to compensate for the damages suffered by some ships.
British warfare while passing through the strait due to the explosion of mines whose presence was
known (not communicated to the United Kingdom) by the Albanian authorities regarding repair costs,
medical treatments and pensions in favor of crew members.

Chapter 9
International Regulation of Disputes
Section 1 - International Jurisdiction

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A) Jurisdiction in interstate disputes
When an international dispute arises, apart from unilateral self-protective measures, States
parties can try to reach an agreed solution (as well as a peaceful one) through
the use of a series of mechanisms that are usually divided into two categories depending on whether
whether or not they lead to a legally binding decision for the parties.
International jurisdiction can involve both disputes between States and other situations.
controversy between States and individuals. In the second hypothesis, jurisdiction is not a means of resolution.
of "international" disputes, namely inter-state, while remaining an international means of
ascertainment and application of international law. International jurisdiction has characteristics
quite different from the state one and it is necessary to be cautious in making analogies: (a) there is no judge
international with mandatory jurisdiction for every type of dispute and for the majority
In controversies, it is not possible to resort to any international judge who can specify the
meaning of the rules in the specific case and impose it on each State in future cases, (b) even when
there exists, a judge might not rule due to lack of consent from the parties, (c) the various
existing international tribunals operate according to the rules of their Statute and without a
division of responsibilities established by common regulations that govern, among other things, issues such as the
lis pendens and res judicata, that is, they do not have a unitary organization, let alone a hierarchical one,
(d) generally, with some exceptions, there is no possibility of appeal before international judges
existing.
The nineteenth-century idea that relations between states, in the absence of a higher authority over the states,
can ultimately be resolved only through war is today more than ever remote in common sentiment
of people and states, although this naturally does not mean that there are no more wars.
Talvoltala jurisdiction is distinguished in doctrine from international arbitration, emphasizing that it
there is jurisdiction when the panel is pre-established while there is 'arbitration' when the panel
the judge (sometimes also a single arbitrator) is established by the parties specifically on the occasion of the
controversy and follows rules to which the parties can derogate. The distinction is based on
similarities with domestic law are acceptable only in the first approximation because in this
It can be said that even international 'jurisdiction' has essentially an 'arbitral' nature.
to emphasize that in international law the agreement of the disputing parties, which is right
international is required only for arbitration and not for jurisdiction, it is always necessary. The
agreements that involve arbitration and jurisdiction generally provide that the
competence is dependent on the existence of a 'dispute'. There has been much discussion in doctrine
about the notion of "international dispute" as a prerequisite for the exercise of
jurisdiction and this concept was defined in the famous ruling of 1924 in the case
Mavrommatis, who defined an international dispute as "a disagreement on a point of law or
in fact, a contrast, an opposition of legal theses or interests between two subjects" then several times
verbatim excerpt from the International Court of Justice. Traditionally they are considered 'legal'
the "justiciable" disputes in which at least one of the parties invokes international law which of
consequences would lead to a decision based on current law, while the disputes
"Politics" would be those in which the parties put forward mere political claims and cannot be resolved.
either through negotiation or dispositive sentence: the requirement of the 'legality' of the dispute in
effects are expressly provided for in many arbitration treaties and also by art.36, par.2, of the Statute
of the Permanent Court of International Justice and the International Court of Justice, which
has repeatedly pointed out, as in the rulings of 1980 regarding the Hostages in Tehran and of

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1986 on Military Activities in Nicaragua, which the political nature of the dispute does not prevent from
to rule legally on the issue.
Different ways of assuming arbitral commitment can be distinguished that, historically, have
have evolved towards increasingly 'institutionalized' forms, in the sense that states have increasingly
frequently, especially since the first post-war period, stable international courts have been created,
pre-existing to controversies, composed of established judges and operating according to rules
indispensable for the parties.
The main methods of activating arbitration or submitting to an international judge
they are the following:
A) Arbitration Compromise: once a dispute arises between two or more States, a
ad hoc agreement that appoints an arbitrator or an arbitration panel, possibly setting the
procedural rules to follow, and one is obligated to comply with the ruling (so-called isolated arbitration).
B) "Incomplete Arbitration Clause": it is a clause inserted in a treaty,
whatever its main content, including the obligation to resort to arbitration,
specifically to enter into an arbitration agreement for all disputes that may arise in
future concerning the interpretation and application of the treaty itself in which the clause is included
(obligation to contract to stipulate the compromise. It is said that the clause is 'not complete' for
indicate that the obligation assumed is only partial, as the parties must then at the moment when the
controversy arises in concrete terms to stipulate an additional agreement contemplating the obligation to submit to
specifically to arbitration or to an international judge.
C) General Arbitration Treaty "non-complete": the obligation to resort to arbitration, and more
precisely to enter into the arbitration agreement (obligation to contract to enter into the
compromise), can also be agreed upon in a treaty concluded regarding all disputes that
may arise in the future between the contracting States, except possibly for some (indicated in the so-called
"exception clause"), such as those that were common in the past but are no longer today, concerning
the burden and independence or the reserved domain of the disputing States.
D) 'Complete' arbitration clause: it refers to the clause inserted in a treaty, whatever the
whether its main content includes the obligation to submit to arbitration or a judge
international already existing and operating for all disputes that may arise in the future
relative to the interpretation and application of the treaty itself in which the clause is inserted. In
in this case, the clause is called 'complete' precisely because it already includes the commitment to submit
specifically to arbitration or jurisdiction and to subsequently respect the decision made.
E) General Treaty of "complete" Arbitration: the obligation to submit to arbitration or to a judge
An already existing and operational international organization can also be provided for by a treaty regarding all the
controversies that may arise in the future between the contracting States, again except for some, those,
indicate in the so-called 'exception clause', concerning honor and independence or the dominion of
Contending states.
F) Unilateral declaration of acceptance of the jurisdiction of the International Court of Justice
Justice: a state adhering to the Statute of the International Court of Justice may declare to
to accept the jurisdiction of the Court against any other State that has done the same
declaration (art.36, par.2, Stat. CIG) and it is a unilateral declaration because it does not require
the acceptance by other States. The formal consent among the States that have made the
statement, even if each person cannot know at the moment when they make their own what others
States could carry it out; it happens that when a State submits to the jurisdiction of

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International Court of Justice through the unilateral declaration referred to in Article 36, paragraph 2, does not know
exactly with which other States might it find itself involved in a dispute in front of
to the Court. In fact, the State that made the declaration can be sued in court
unilaterally to another State that has made the same declaration which may be
delimited by the State that carries it out, through reserves, ratione temporis, ratione materiae and ratione
personae.
In addition to assessing the existence of the consent of all parties to the dispute, international judges
they assess whether the State as a plaintiff has standing to act in court (jus standi, standing in
English), refraining from expressing an opinion if it should be lacking. The two issues of consent and the
The legitimacy to act in court must be kept distinct, even if they may be connected. Without the
the parties' consensus in the dispute, in fact, the international judge cannot rule, but
when consent exists, the judge may not rule because the judgment has been activated
from a State that has no direct interest in the dispute. Once the judge has exhausted
the procedure and the issuance of the sentence raise the issue of its enforced execution
if the convicted State does not want (or cannot for some reason, even of an internal nature)
conform form. It is important to keep in mind that international judges generally do not
they have coercive mechanisms regardless, it is undisputed that international rulings,
Being binding, they must be respected by States and their bodies, including judges.
International Court of Justice
The International Court of Justice was historically preceded by the Permanent Court of International Justice.
International matters that are worth mentioning.
The Permanent Court of Arbitration, which still exists and operates, was established by the I Convention
from The Hague of 1907 on land warfare and consists only of a list of arbitrators (which is also used
also for the selection of judges of the International Court of Justice) designated by the States parties
to the Convention periodically updated among which the contending States can choose the members
of the arbitration panel. In addition to the list of arbitrators, the Court has an International Office of
Secretariat and of a Permanent Administrative Council. The Court rules based on norms
stability in the Convention and supplementary nature, that is, derogable by the parties. It is worth noting the use of
term "permanent", specifically meant to indicate the novelty of the Court at the time it was established, and
its degree (albeit minimal) of 'institutionalization', compared to the isolated arbitrations typical of the 19th century
sec.
The International Court of Justice succeeded the Permanent Court of Justice in 1945.
International established in 1920 within the framework of the League of Nations.
The International Court of Justice is made up of a permanent body of elected judges.
from the General Assembly and the Security Council in separate chambers by absolute majority
the votes (8 out of 15 in the Council). The Court operates based on procedural rules that cannot be deviated from.
part contained in its Statute, which is "an integral part of the Charter of the United Nations" (art.92
UN Charter); it performs a contentious function when it issues legally binding rulings.
binding (art.92 UN Charter), whether it is a consultative function, when it pronounces itself through
advisory opinions without binding effect (art.96 UN Charter).
Contentious Function
In the exercise of contentious function, the Court can be activated by any means.
already examined in general terms and that is through an arbitration compromise (stipulated after the
a dispute has arisen), an arbitration clause (stipulated before the dispute arises), a
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general treaty of arbitration (concerning any dispute that may arise between states
contracting parties) or a unilateral declaration (art.36). The jurisdiction of the Court may also be based on
its behaviors maintained by the State convened before the Court or towards the State
recurring from which one can 'clearly' infer the consent to undergo it (so-called forum
prolonged). It does not follow that the Court, despite presenting a high degree of institutionalization, does not
differs from any arbitration tribunal regarding the need for the parties' consent.
Only states can be parties in the proceedings that take place before the Court in session.
contentious (art.34 Stat.). Individuals as well as organizations are specifically excluded.
international. The Court may also render its decision, pursuant to art. 38, par. 2, ex aequo et bono
(as it is right and fair) if the parties request it.
The judgments of the International Court are legally binding for the parties (art.94, par.1,
letter NU) limited to the dispute decided (art.59 Stat.), the judgments of the Court do not have
ultra partes effects, that is, they do not have binding value for the resolution of other cases, even among the same ones.
In short, the principle of stare decisis does not apply, known especially in common law countries, in
I feel that not only other international judges but the International Court of Justice itself is not
required to respect its previous rulings. The rulings are adopted by the Court by majority.
of the judges present, with the vote of the president or the judge who prevails in case of a tie.
it replaces it (art. 55 Stat.) and individual judges can attach their opinion to the sentence
individual, competing or dissenting (art.57 Stat.); the judgments must be motivated (art.56
They are final, that is, not subject to 'appeal'. Only in two cases can a judgment of the
The court can be reviewed, namely when (a) the parties request an 'interpretation', being
the meaning and scope of a previous ruling issued against them is disputed (art.60
(Stat.), or (b) when the parties request a "review" following the emergence of a new fact and
decisive that, if known at the time of the verdict, could have led to a different outcome.
Unlike other domestic and international courts and tribunals, it generally does not condemn the State.
liable for the payment of legal fees, to each contracting State belonging in
controversy over paying one's own expenses unless the Court decides otherwise (art.64 Stat.). In the case of
if the losing State does not wish to comply, a request can be made to the Security Council,
which resolves with the exercise of the veto right by the permanent members, with recommendation
or decisively, at the initiative of the State in favor of which the judgment was delivered (art.94,
par.2, NU Letter) but it is not clear whether the court's rulings are directly applicable.
in the internal order of the condemned State. The tendency of judges is to exclude the direct
applicability as the ruling of the Court, resolving a dispute between States in a
the procedure in which they, and only they, are parties, exclusively binds the recipient States and does not
even individuals who could enforce the ruling in internal proceedings. In binding the State,
The ruling binds all its bodies, including the judges. The problem is currently particularly
current events in Italy following the condemnation by the International Court of Justice in the ruling
from 2012 in the case of State Jurisdictional Immunities which binds the Italian judges who
they are required to apply it, as Article 94, paragraph 1, states that "each member of the Nations
The United Nations commits to comply with the decision of the International Court of Justice in every
controversy in which it is a party"; this obligation is imposed on all bodies of the Italian State,
understood judges. In addition, the respect for the international ruling implies respect for
as the ruling has established, which means that customary international law

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(valid in Italy through Article 10, first paragraph, Constitution) on the immunity of foreign States must
it is applied and must be applied with constitutional rank.
Preventive Measures
The Court may also indicate, during the course of the proceedings, "protective measures".
provisional rights of the contending States when there is a risk of irreparable harm before
of the issuance of the judgment on the merits (art.41 Stat.). In the past, there has been much debate about whether the States
they were obliged to comply but the problem has been definitively clarified by the Court
International Court of Justice in the La Grand judgment of 2001, where the Court stated their
binding character; despite all that, the problem remains to establish what the consequences are of
failure to comply with the precautionary measures imposed by the Court and regarding this, everything that can
It happens that the Court finds in the merits ruling the non-adoption of precautionary measures.
nothing more.
Advisory Function
Moving to the consultative function, the opinions of the Court can be requested by the Assembly.
General and from the Security Council, as well as from other bodies of the United Nations and from the Institutes
Specialized prior to the authorization of the General Assembly (art.96 UN Charter); it should be noted that the
opinions cannot be requested by States, nor by individuals, but only by organizations or
international organizations just mentioned. The opinions of the Court, as has been reiterated several times
from the same Court and as it is evident from the practices of the bodies that requested them, they are not
legally binding; precisely, there is no obligation for the requesting bodies to
request them nor the obligation to comply with them in the event that they are requested and provided by Cortema
does not prevent that values have value as opinio juris and necessity for the purpose of formation
of new customary international norms, which is what happened, for example, with the opinion
from 1951 on the Reserves to the Convention on Genocide regarding the regime of treaty reserves and
with the opinions of 1971 on Namibia and of 1975 on Western Sahara regarding the principle of
self-determination of peoples. Opinions can exceptionally be binding when they are
issued by the Court pursuant to Article 96 when their binding nature is specifically established by a
agreement concluded by the parties; the opinions may concern 'any legal issue' if
requested by the General Assembly or by the Security Council (art. 96, para. 1, UN Charter) or
"legal issues arising within the context of their respective activities" if requested by other bodies of
United Nations or by Specialized Agencies (art. 96, par. 2, UN Charter)
B) Jurisdiction on Human Rights
Conventional international norms on human rights assign to the individual not only
substantive rights, but now often also the right to file an appeal before bodies
internationally denouncing the violation of its substantive rights by a contracting State.
The jurisdiction exercised by international bodies competent to rule on human rights is
directed to resolve, therefore, especially disputes between a State and an individual, often one of its
citizen, unlike the traditional international jurisdiction between States.

European Court of Human Rights

The most innovative part of the European Convention on Human Rights, when it was drafted, is that
concerning the competent authorities to monitor compliance with the fundamental rights enshrined therein by
of the contracting States. In the original version of the European Convention, before it came into
under Protocol No. 11, two bodies operated, the European Commission of Human Rights and the

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European Court of Human Rights. The Commission, which could examine both interstate appeals,
presented by one contracting State against another contracting State considered to be the author of a violation
of the Convention, both individual complaints submitted by individuals against a contracting State deemed
Author of a violation of the Convention, essentially had the function of verifying the
admissibility of the appeals themselves according to parameters that have remained unchanged until today.
Protocol No. 11, which came into force on November 1, 1998, established a single and permanent Court.
competent to perform the functions that were previously carried out by the Commission and the Court, as well as
the decision made by the Committee of Ministers of the Council of Europe. The current Court is
competent to examine both individual appeals and state appeals (arts. 33-34), provided that the State
the accused has ratified Protocol No. 11 and without the need for a specific acceptance. The
the functioning of the Court has been revised with Protocol No. 14 of 2004, in force from June 1st
2010, in order to remedy the excessive workload of the Court. For 'individuals' who can
to present an appeal under Article 34 refers to 'every individual, every non-governmental organization'
government or group of private individuals that is a victim of the violation of the Convention (art.35); the
the conditions for admissibility have remained the same as the original, namely the prior exhaustion of appeals
internal and the presentation of the appeal within six months from the final internal sentence regarding the
appeals both state and individual. The judges of the Court are as many as the contracting States
(art.20), they are elected by the Parliamentary Assembly of the Council of Europe "on behalf of" each
contracting state (art. 22) for nine years and are not eligible for re-election (art. 23). The Court consists of four
judicial formations (Single Judges, Committees, Chambers and Grand Chamber) and a formation
plenary (Court in Plenary Assembly) with only administrative powers. The Sole Judge
(single-judge), introduced with Protocol No. 14, is competent to decide definitively,
on the admissibility of individual appeals or on the removal of a case from the register, previously assigned to
Committees; the Committees, composed of 3 judges, are competent to decide, unanimously and in procedure
definitive, also regarding the admissibility and cancellation from the role, also on the merits if the
the question 'is already the subject of established case law' of the Court; the Chambers, composed of 7
judges are competent to decide on the admissibility of both individual appeals, in cases where not
a Committee has been appointed, which (in any case) of state appeals, as well as on the merits, through
appealable sentence; they also decide on the establishment of Committees; the Grand Chamber, made up of
of 17 judges, it is competent to decide with a final judgment, in addition to cases of declination of
jurisdiction (art.30) and appeal of the judgments of the Chambers (art.43), also on issues of
interpretation and (failure) to execute one's decisions at the request of the Committee of
Ministers decide on this matter by a two-thirds majority. The Court in Plenary Assembly is
competent to decide on the election of the President and Vice Presidents, as well as the Chancellor and the
vice-chancellors, on the adoption of the internal regulations and on the Constitution of the Chambers (arts. 26-
27). The decisions on the admissibility of the Committees and the judgments on the merits of the Grand Chamber are
definitive; the judgments of the Chambers can be challenged before the Grand Chamber; all judgments
definitive must be published (art.44) and justified (art.45), have binding effect and must
to be transmitted to the Committee of Ministers that oversees its execution (Article 46). The judgments
The definitive rulings of the Court are legally binding and their execution is.
controlled by the Committee of Ministers of the Council of Europe (art.46).
C) International Criminal Jurisdiction
International crimes can be prosecuted and punished not only by state judges but also
by ad hoc international judges, to judge facts that have already occurred, or by judges

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pre-existing international ones at the moment when the crimes are committed. The historical model of
international criminal tribunals are the Nuremberg Tribunal and the Tokyo Tribunal established by
Allied forces victorious in World War II immediately after the end of the conflict. Justice
international criminal justice is often criticized as 'political justice' or 'justice of the victors'
or rather as an alternative mode, seemingly inspired by the impartiality of the law, to
punish the enemy. It is emphasized how little legal sense there is in a 'legality' inherent in actions
judicial when it is already established, by the winner or by the stronger one, who will appear as
the defendant and those who will act as judges. The objection is not unfounded if one considers that historically the
winners for having sponsored international criminal justice and it is more than obvious to imagine that
the defendants, the judges, and the outcome of the trials would have been exactly the opposite if the war had been
sourced from the other State; it is also true, however, that it has gained ground since the post-World War II period,
culminating in 1998 with the establishment of an International Criminal Court, the idea of establishing courts
international systems that work more in harmony with the essential principles of criminal justice.
On August 8, 1945, shortly after the signing of the United Nations Charter, an agreement was concluded between the
France, the United Kingdom, the United States, and the Soviet Union the London Agreement that established the
International Military Tribunal for the Trial and Punishment of Major War Criminals
Nazis known as the 'Nuremberg Tribunal'. Article 6 of the Statute, as already mentioned,
provided for three categories of crimes for which the Tribunal was competent: crimes against peace, the
war crimes and crimes against humanity.
After about ten months of hearings, from November 20, 1945, to August 31, 1946, the Tribunal issued the
his sentence on October 1, 1946, with the death penalty for twelve defendants (including Goring and
From Ribbentrop), with the life sentence for three defendants (including Hess) and imprisonment
of four defendants for periods from ten to twenty years and with three acquittals.
The analogous process, as is known, concluded, with a number of convictions, on November 4, 1948, by
of the International Military Tribunal for the Far East (the so-called 'Tokyo trial'). The Tribunal
Tokyo was not established, like the Nuremberg Tribunal, on an international agreement but rather on
a unilateral proclamation by the Supreme Commander of Allied Forces issued on August 19, 1945. The
the trial took place from April 19, 1946 to April 18, 1948 and, as is known, among the twenty-eight defendants there was no
called to respond, while still alive, the Japanese Emperor Hirohito.
In the period following the end of the Cold War, several criminal tribunals were established.
international, which have thus been alongside national judges, for the repression of crimes
international. First of all, we must remember the two Ad Hoc International Criminal Tribunals for crimes
committed respectively in the former Yugoslavia and in Rwanda, created by the Security Council of
United Nations with resolutions no. 827 of 1993 and no. 955 of 1994. The two Tribunals, having a character
temporary, they implemented specific strategies, especially starting from 2005
(completion strategies) and the deadlines set so far for the cessation of activities have been evaded.
In the meantime, while the two Tribunals remain operational, and they will at least until 2014, the
The Security Council established, with resolution no. 1966(2010), an International Mechanism
Residual for the Criminal Tribunals (International Residual Mechanism for Criminal Tribunals)
mandate starting from July 1, 2012 for the Tribunal for Rwanda and from July 1, 2013 for the
Tribunal for the former Yugoslavia.
The tribunal for the former Yugoslavia, on which we will focus since the provisions regulating it
they are almost identical to those governing the Tribunal for Rwanda: it is composed of three Chambers
of first instance (each of three judges) and by a Court of Appeal (of five judges); the judges,

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a total of 16 permanent members (of which 7 for the Appeals Court) and a maximum of 9 ad litem for
the Courts of First Instance are appointed, except for 2 designated by the President of the Court for the
Rwanda, from the Assembly on a list of the United Nations Security Council. The tribunal has
seat in The Hague (art.31) and its working languages are English and French (art.33).
As for the material competence, the Court can generally rule on 'violations
serious violations of international humanitarian law" (art.1) and in particular is competent to judge the
"serious violations of the 1949 Convention" (art.2); genocide, defined in the same terms
of the 1948 Convention on Genocide (art.4); and crimes against humanity "in conflict
international or internal" (art.5). The subjective competence is limited to natural persons (art.6); the
jurisdiction is limited to crimes committed since January 1, 1991 (Article 8); finally the
spatial jurisdiction is limited to crimes committed in the territory of the former Yugoslavia (art.8). It is
It is appropriate to note that the Tribunal for Rwanda has a different material jurisdiction,
temporal and spatial.
Taking up the Charter of the Nuremberg Tribunal, the Statute of the Tribunal for the former Yugoslavia
establishes the irrelevance of the official position (art.7, par.2) and of the superior order, except as
mitigating of the penalty (art.7, par.4) and the responsibility of the superior if he knew of the
crimes committed by subordinates (art.7, par.3). The Statute provides for ne bis in idem (not twice)
for the same time), specifically the impossibility for national judges to rule again
on a matter on which the Court has already ruled, it can rule again on the
the same question arises if the state judge has proceeded by qualifying the fact as an ordinary crime,
instead of as an international crime, or has not proven to be independent (art.10, paragraphs 2 and 3). The
the ruling is adopted by the Court by a majority of judges, who may attach opinions
individual, it is written and must be motivated and presented in a public hearing (art. 23). It is allowed
the appeal for error of law or for error of fact (art. 25), as well as the review for supervening
new decisive facts (art.26). The penalty provided is imprisonment and possibly the restitution of
acquired through criminal conduct; the death penalty, unlike the Statute of
Nuremberg cannot be imposed by the Court. The sentence must be carried out in a state.
indicated by the Court among those who have declared themselves available according to the law in such
State but still under the control of the Court (art.27). By order of the Court, it is possible
the grace or commutation of the sentence according to the law of the State of execution (art. 28). As much
In relation to the national jurisdictions, the Statute establishes the priority (primacy) of the Court.
I sense that at the request of the Court, the internal judges must strip themselves of their competence (art.9,
the states that hold the alleged criminal judged by the Tribunal have the obligation to
submit it to the Court itself (art.29). The Court’s expenses are charged to the United Nations in
compliance with Article 17 of the Charter (Article 32) and therefore obligatorily distributed among the Member States
from the General Assembly.
International Criminal Court
The biggest innovation in recent practice is the establishment of an International Criminal Court.
Permanent and with a spatial competence not restricted to a specific territory. The
The court is made up of 18 independent judges, at least 9 of whom are experts in criminal law and procedure.
at least 5 experts in international humanitarian law and human rights, appointed by the Governments and
elected by secret ballot by the Assembly of States Parties (art. 36); the States that do not ratify it
The Statute of the Court does not become part of the Assembly of States Parties and cannot therefore
to influence the appointment of judges.

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As for the material competence, the Court can judge "the more serious criteria concerning the community
international as a whole (art.5, par.1). It specifically concerns genocide, newly defined
in the same terms as the 1948 Convention on Genocide as the 'international destruction,'
in whole or in part, of a national, ethnic, racial or religious group (art.6)”; of “crimes against
humanity," like murder, extermination, enslavement, torture, and rape against the
civilian population, as long as they are "widespread" or systemic according to art. 7;
"war crimes", that is, serious violations (grave breaches) of the Geneva Conventions of
1949 and 'other serious violations' of international armed conflict law and
interni (art. 8). The state specifies that the Court may be competent to judge the aggression.
after a provision defining the crime of aggression has been approved
in accordance with the Charter of the United Nations (art.5, para.2). The Court follows interpretatively,
Since these acts must nonetheless comply with the Statute, the 'Elements of Crimes'
(Elements of Crimes) adopted on September 9, 2002, pursuant to Article 9 of the Statute. The jurisdiction
The subjective jurisdiction of the Court is limited to natural persons (art. 25) over the age of 18 at the time
of the crime commission (art.26). The Court cannot therefore rule on individuals.
legal matters and in particular on multinational enterprises. The temporal jurisdiction of the Court is
limited to crimes committed after the entry into force of the Statute at the international level (art.11,
par.1), that is after July 1, 2002, or after the entry into force of the Statute for the State that
subsequently save the possibility for that State to accept with an ad hoc declaration the
jurisdiction of the Court also for crimes committed before accession (art.12, par.3). The
spatial jurisdiction is unlimited in the sense that the Court can pronounce on crimes
regardless of where they were committed, provided that the other conditions are met
conditions provided for the exercise of its jurisdiction. The Pre-Trial Chamber may
issue a summons or an arrest warrant at any time after the opening
of an investigation if she is convinced that there are valid reasons to believe that such a person has committed
a crime under the jurisdiction of the Court, (b) the arrest of that person seems necessary to ensure (i)
the appearance of the person at the trial, (ii) that the person does not obstruct or endanger the
investigations or the proceedings before the Court or (iii) to prevent the person from continuing in
what crime or a crime committed falling within the jurisdiction of the Court or that occurs
under the same circumstances. Based on the arrest warrant, the Court can request detention.
provisional or the arrest and delivery of the person according to Chapter IX of the Statute (art. 58)
The judgment is adopted by a majority of the judges (art.74, par.3), and may be accompanied by
individual opinions; must be justified, written and presented in a public hearing (art.74, par.5); are
admissible appeals for procedural defect, factual error, legal error (art. 81) and review for
survive new decisive facts (art.84). The Court may impose imprisonment as a penalty not
over 30 years, or (when justified by the extreme severity of the crime and the situation
the life sentence for the convicted person, and possibly a fine or the confiscation of the profits from
crime (art.77). The sentence must be executed in a State designated by the Court, under supervision
of the same (art.103). The Court may decide that the penalty be reduced but only after that have been
two thirds of a prison sentence or 25 years of life imprisonment (art.110).
Regarding the relationship with national jurisdictions, aside from the ne bis in idem rules, a case is
it is not admissible before the Court if it is subject to a competent judge of a State, unless
the State does not intend (unwilling) or is actually unable (unable) to perform correctly
the investigation or to initiate the process (so-called principle of complementarity, art.17, par.1): the purpose of the

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The norm and the rationale of the entire Statute of the Court is to prevent that alleged criminals go unpunished.
in all those cases where state judges cannot or do not want to pursue them, stepping in such
case, in a subsidiary manner, the Court.
For the purpose of activating the Court, a crime report needs to be communicated to the Prosecutor or (from)
a party state or (b) from the Security Council or (c) acquired ex officio by the Prosecutor himself in the
case in which the Preliminary Examination Chamber authorizes it pursuant to Article 15, paragraphs 3 and 4 (Article 13) and between
The states that can activate the Court also include those in whose territory it would be.
crimes reported (self-referral), which can actually happen after an
change of regime or the Court be activated for crimes committed by subjects other than the authorities
power: the Court has jurisdiction even if the national state of the alleged criminal is a State
third provided that it is part of or has nonetheless accepted its jurisdiction the territorial State.
If, on the other hand, the criminal information comes from the Council, the Court can rule without it being
the acceptance of its jurisdiction by the territorial and national States is necessary, and therefore
also for the crimes committed by citizens of third states on the territory of third states. The costs of
The costs are borne by the "financial resources" of the Court itself (art. 114), which come from the
contributions from the States Parties, calculated by mutual agreement based on the UN quotas,
Approval by the General Assembly, particularly for the cases referred to the Court by the Council.
of Security (art.115, lett.b). Finally, the Court's budget, ten years after the start of its
operation is starting to be slightly more encouraging, although uncertainties and
obstacles of various kinds.
Section 2-Diplomacy
A controversy can be resolved, as already mentioned, also by resorting to means that do not end in
binding decisions. This refers to 'diplomatic' means to emphasize that the
procedure followed, even if it is initiated based on legal norms that possibly
they impose on the parties the obligation to participate in the procedure itself, it does not conclude with a
legally binding provision for the parties. It should be emphasized that in the legal system
An international non-binding measure could in practice be respected and contribute
to the overall legal order more than a binding measure: it follows that diplomacy
plays a very important role in providing political support in a broad sense, of international law.
Controversies today must be resolved by peaceful means because it is a principle that makes
On the other hand, it prohibits the use of military force. As an alternative to means
jurisdictional, States can resort to diplomatic means to resolve their disputes and the
current general international law provides for an obligation for the peaceful resolution of disputes,
as established in Article 2, paragraph 3, of the Charter of the United Nations, which is supplemented by Article 33,
section 1, which lists the means of peaceful resolution that States should resort to
recourse (negotiations, inquiry, mediation, conciliation, arbitration, jurisdictional regulation)
appeal to regional organizations or agreements) where diplomatic means of solution of the
the most common international controversies are negotiations, good offices, mediation, inquiry and
the reconciliation.
A) Negotiations: the parties in a dispute can negotiate an agreement among themselves that resolves the
controversy; it is possible at any time and for any purpose, even if there is no
controversy to be resolved. As the International Court of Justice has repeatedly stated, when there
it is a contractual obligation to negotiate in good faith the negotiation must take place "with genuine

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"intention to achieve a positive result," the Court reserving the right to ascertain whether the
the behavior of the parties in each individual case has been either in accordance with or not in accordance with this principle.

B) Good offices: with 'good offices' the resolution of the dispute is facilitated by the intervention of a
third (State, supreme body of a state or an international organization in a personal capacity,
etc.) that encourages the parties to negotiate for the achievement of an agreement that resolves the
controversy.
C) Mediation: even with 'mediation' the resolution of the dispute is facilitated.
from the intervention of a third party (which can again be a State, a supreme body of a State, etc.)
who actively participates, thus 'mediating' between the parties, in the negotiations between the parties directed
upon reaching an agreement that resolves the dispute.
D) Inquiry: in the 'inquiry' the resolution of the dispute is again facilitated by the intervention of
under (for example, a commission of inquiry) which has limited competence
in the non-binding determination of facts, so that the parties reach an agreement that resolves the
controversy.
E) Conciliation: with 'conciliation' the resolution of the dispute is still facilitated
from the intervention of a third party (for example, a Conciliation Commission, permanent or
occasional, usually composed of people who sit individually and not as
representatives of States) competent to examine the dispute both in fact and in law and to
to formulate a non-binding proposal for a solution so that the parties can reach an agreement
that resolves the controversy.
Mandatory conciliation is referred to when the recourse to conciliation can be activated.
unilaterally by one State towards another, which thus becomes automatically obliged to
to undergo the conciliatory procedure, without prejudice to the proposed solution in the
the controversy later formulated by the conciliatory body is not binding on the parties; mechanisms of
mandatory conciliation is provided for by the Vienna Convention of 1969 on the Law of Treaties
(articles 65-68), from the 1982 Montego Bay Convention on the Law of the Sea (Annex V and
Articles 284 and 297, paragraph 3, letter b) and from the Stockholm Convention on Arbitration and Conciliation of
1992.

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