Papers by Giuseppe Pascale
Soixante ans après les indépendances. L’Afrique et le droit international : regards d’une génération , 2023
Ce livre naît du constat que dans la littérature juridique internationaliste, en dépit de l'impli... more Ce livre naît du constat que dans la littérature juridique internationaliste, en dépit de l'implication des Etats africains et des africains sur la scène internationale et leur participation active à de nombreux débats, peu d'études ont été faites sur l'Afrique à la fois comme objet et sujet du droit international. Combler ce vide en se penchant, soixante ans après les indépendances des Etats africains, sur la place de l'Afrique dans le droit international et sur le regard que le droit international porte sur l'Afrique, est le défi que se sont lancés les contributeurs à cet ouvrages, internationalistes de la génération 1980-1990. Le livre met en évidence la spécifi cité d'un droit africain particulier, et étudie également l'expérience africaine dans ce domaine sous l'angle du droit international.
The Role of the Treaty on Treaties in Contemporary International Law, 2022
This is an introduction to the history and contemporary status of the 1969 Vienna Convention on t... more This is an introduction to the history and contemporary status of the 1969 Vienna Convention on the Law of Treaties.
Diritti umani e violenza all'incrocio tra storia e diritto, 2021
Il contributo tenta di fornire una definizione di "genocidio culturale" ai sensi del diritto inte... more Il contributo tenta di fornire una definizione di "genocidio culturale" ai sensi del diritto internazionale in base allo studio della prassi, della giurisprudenza internazionale e della dottrina rilevante.
Diritti umani e diritto internazionale, 2021
In contrast to the European Human Rights System, a rise of inter-State ligation has not occurred,... more In contrast to the European Human Rights System, a rise of inter-State ligation has not occurred, nor is expected to occur in the near future, within the African Human Rights System. As a matter of fact, only one inter-State complaint has been examined on the merits so far, while another one is pending since 2014. This paper provides an overview of the norms concerning inter-State communications before the African Commission on Human and Peoples’ Rights and inter-State applications before the African Court on Human and Peoples’ Rights. It illustrates the reasons underlying the reluctance of African States to rely on inter-State litigation in cases involving human rights violations. It also suggests a possible way out of such reluctance that rests on the potential role of African inter-governmental organisations.
La Comunità internazionale, 2021
L'articolo contribuisce alla ricostruzione dei rapporti tra l'ONU e le organizzazioni africane su... more L'articolo contribuisce alla ricostruzione dei rapporti tra l'ONU e le organizzazioni africane subregionali competenti in materia di mantenimento della pace e della sicurezza regionale.
Provisional Measures Issued by International Courts and Tribunals, 2021
This chapter discusses the legal characteristics of provisional measures
under the African Human ... more This chapter discusses the legal characteristics of provisional measures
under the African Human Rights System, partly with the aim to fill the gaps found
in the works of the Rapporteur on provisional measures of the Institute of International
Law. After a brief overview of the provisional measures issued by the African
Commission, it examines the precautionary power of the African Court, reaching the
conclusion that the Court is inconsistent in the use of such power. This conclusion
derives from an analysis of three main and interrelated critical issues, namely: (i) the
binding or recommendatory nature of the provisional measures of the African Court;
(ii) their domestic implementation; and (iii) the potential responsibility of States that
fail to implement them. These critical issues are introduced and observed through
the lens of the paradigmatic Saïf al-Islam Kadhafi case, where the African Court
first stated that the provisional measures were binding on the State concerned but
then, after ascertaining the lack of compliance with such measures, abstained from
declaring any resulting international responsibility of that State.
Rivista di diritto internazionale
This essay intends to shed light on the nature of the Joint Comprehensive Plan of Action (JCPoA) ... more This essay intends to shed light on the nature of the Joint Comprehensive Plan of Action (JCPoA) concerning Iran’s Nuclear Programme. It argues that the JCPoA is not a treaty but a mere political commitment, to which however some legally binding effects have been attached by Security Council Resolution 2231 (2015). As a consequence, this essay also submits that, in ceasing its participation in the JCPoA and re-imposing sanctions against Iran under the 2018 Presidential Memorandum, the United States breached Resolution 2231 (2015) and thus committed an internationally wrongful act. In this connection, the reactions progressively enacted by Iran — and culminated in the restoration in 2020 of its pre-2015 Nuclear Programme — may find a justification. With the Security Council failing to take action, the role of the International Court of Justice deserves special attention. Indeed, Iran has started proceedings before the Court in 2018 alleging that, by reactivating the sanctions regime, the United States violated the 1955 bilateral Treaty of Amity, Economic Relations, and Consular Rights.
La Dichiarazione universale dei diritti umani nel diritto internazionale contemporaneo, Jul 2020
This chapter contributes
to the debate between universalism and cultural relativism in internatio... more This chapter contributes
to the debate between universalism and cultural relativism in international human
rights law. In particular, it shows the predominance of cultural relativism in the African
Human Rights System. In order to reach such outcome, the chapter assesses the scarce significance
of the Universal Declaration of Human Rights – that is the main symbol of the
universalist approach to international human rights law – in the African Human Rights System.
First, the Universal Declaration is barely considered in the African Charter on Human
and Peoples’ Rights, protecting (on the contrary) the African cultural traditions, sometimes
even to the detriment of certain “universal” human rights. Second, the Universal Declaration
has a marginal position in the practice of the African Commission on Human and Peoples’
Rights, notwithstanding the relevant reference in Art. 60 of the African Charter concerning
the law from which the Commission shall draw inspiration. Third, the Universal
Declaration has a very limited role also in the case law of the African Court on Human and
Peoples’ Rights, although the Court has a broad ratione materiae competence and claimants
report very often about alleged violations of the Universal Declaration by States. In a nutshell,
it is submitted that the cultural relativism of the African Charter has remained unchallenged,
and has been even enhanced in the practice of the African Commission and in the
case law of the African Court, where the Universal Declaration has thus found little space.
Studi sull'integrazione europea
The paper critically comments on the M.S. judgment delivered on 26 March 2019 by the Court of Jus... more The paper critically comments on the M.S. judgment delivered on 26 March 2019 by the Court of Justice of the European Union. It is here argued that this judgment represents another piece of evidence of the influence of EU Law on the solution to the private international law
problems concerning the continuity of family status established abroad. Indeed, according to the M.S. judgment, the family status resulting from an Islamic kafala passed in Algeria (to the benefit of an Algerian child and two French spouses who had moved to the United Kingdom
for working reasons) must be recognised in the British legal system. Otherwise, the United Kingdom would violate EU Law on family reunification – which of course is highly related to the free movement of persons and thus to the European economic integration – in addition
to both the right to respect for private and family life and the best interests of the child as enshrined in the Charter of Fundamental Rights of the European Union. The value of the M.S. judgment is also assessed against the relevant international treaty provisions and case law of
the European Court of Human Rights concerning the Islamic kafala.
Liber Amicorum Angelo Davì. La vita giuridica internazionale nell'età della globalizzazione, 2019
Il presente lavoro si prefigge l’obiettivo di contribuire ad approfondire
alcuni aspetti delle mi... more Il presente lavoro si prefigge l’obiettivo di contribuire ad approfondire
alcuni aspetti delle misure provvisorie indicate dalla Corte africana,
tra cui il più controverso è quello dei loro effetti. Dal dato normativo
non si evince infatti se tali misure dispieghino effetti vincolanti o meramente
raccomandatori. Dopo aver brevemente inquadrato i principali
caratteri del potere cautelare della Corte africana, si darà conto della rilevante
giurisprudenza, prestando particolare attenzione all’affare Saif
al-Islam Gheddafi, nel cui contesto la Corte ha sottolineato per la prima volta e in maniera paradigmatica gli effetti vincolanti di tutte le misure
provvisorie da essa ordinate e ha enfatizzato l’autonoma responsabilità
cui incorrerebbe lo Stato che non si conformasse alle suddette misure.
Si illustreranno quindi gli argomenti che concorrono a dimostrare la
correttezza dell’orientamento della Corte. Si porrà poi in rilievo come,
tuttavia, la Corte non sia mai giunta a dichiarare la responsabilità degli
Stati che non eseguono le misure provvisorie da essa indicate, cosa peraltro
assai frequente. Fermo restando il carattere vincolante di tali misure,
si evidenzierà allora come una certa incoerenza contraddistingua la
Corte africana nell’esercizio del proprio potere cautelare e si delineeranno
le possibili conseguenze di una simile incoerenza.
Although the norms specifically protecting religious minorities in modern international law are n... more Although the norms specifically protecting religious minorities in modern international law are not into force anymore, this chapter shows that in contemporary international law some other norms can be interpreted as indirectly safeguarding religious minorities. After a preliminary attempt to define the notion of ‘minority’ according to international law, in the first part of the paper a legal-historical approach is adopted. The conventional (and maybe customary) norms directly protecting religious minorities in the modern age are assessed. Attention is also paid to the ‘minority system’ instituted under the aegis of the League of Nations in the first half of the XX century. In its second part, the essay deals with international norms that nowadays indirectly safeguard religious minorities, underlining how many minority groups today are oppressed only or above all because of their religion (e.g., Rohingya in Myanmar). First and foremost, religious minorities can take advantage from the conventional norms concerning the general protection of persons belonging to a minority group of any sort. Moreover, religious minorities can benefit from the protection that the main human rights treaties usually grant to any human person through their provisions on the freedom of religion and on the prohibition of any form of discrimination. Eventually, some customary international norms (such as that prohibiting genocide) could also be intended as safeguarding religious minorities.
In this paper I will try to shed some light on the role that Italy plays in the gross human right... more In this paper I will try to shed some light on the role that Italy plays in the gross human rights violations perpetrated against migrants who are halted and detained in Libya. Basically, the aim is to address the question as to whether Italy is somehow internationally responsible for the gross human rights violations inflicted on migrants in Libya, namely while migrants are under Libyan jurisdiction. I will attempt to answer this question bearing in mind above all the general frame of the Draft Articles on Responsibility of States for International Wrongful Acts (DARSIWA)adopted in 2001 by the UN International Law Commission (ILC).
This paper aims at drawing the temporal ‘borders’ of the African Human Rights System in order to ... more This paper aims at drawing the temporal ‘borders’ of the African Human Rights System in order to contribute to the debate about the ratione temporis application of human rights treaties. In particular, the paper attempts to verify the temporal scope of the African Charter on Human and Peoples’ Rights and of the jurisdiction of the human rights bodies operating in Africa, with a specific focus on the African Court on Human and Peoples’ Rights. With regard to the dies a quo, the paper shows the tendency to apply the traditional principles of non-retroactivity of treaties (to define the temporal scope of the African Charter) and of States consent (to ascertain the temporal scope of the jurisdiction of the African Court). As for the dies ad quem, the paper submits that the practice sorrounding the African Charter supports the doctrine arguing that it is not possible to withdraw from human rights treaties in the absence of a relevant clause. Nonetheless, the experiences of the African Court and of sub-regional tribunals demonstrate that, at the same time, the African States resolutely reiterate their power to modify the (temporal) scope of the jurisdiction of human rights organs.
Many human rights monitoring bodies coexist in Africa. At a continental level the African Court f... more Many human rights monitoring bodies coexist in Africa. At a continental level the African Court flanks the African Commission, while at a sub-regional level some jurisdictional organs belonging to the Sub-Regional Economic Communities have progressively extended their competence to human rights disputes. Whether a coordination among these bodies is effectively needed mostly depends on the evaluation of the proliferation of international tribunals from a broader perspective. In this paper, my aim is to contribute to demonstrating that, if one regards the proliferation of internation-al tribunals as a positive phenomenon, the said need decreases or disappears. For these purposes, first of all, I introduce the African Commission and the African Court. Thereafter, I focus on the development of the human rights competence of the three most representative sub-regional juris-dictional organs (the SADC Tribunal, the EAC Court of Justice and the ECOWAS Court of Jus-tice). After ascertaining the lack of provisions governing the relationships between these organs, I dwell on the methods of coordination proposed by some scholars. In the last paragraph, I suggest that such coordination is not actually necessary.
As widely known, Libyan authorities have been committing gross human rights violations to the det... more As widely known, Libyan authorities have been committing gross human rights violations to the detriment of migrants coming from abroad and arrested in their territory. According to international law, Libya is directly responsible for such violations. The present essay argues that Italy is responsible for complicity in the gross human rights violations perpetrated in Libya. It further suggests that also the EU is probably responsible for complicity in the same context. In particular, Italy has adopted a policy of borders outsourcing to Libya with the aim of controlling and reducing irregular migration. The EU has been supporting such policy. The responsibility of Italy and the EU for complicity is assessed in light of the relevant international norms, as basically codified in the UN ILC Drafts on State Responsibility (2001) and on International Organisations Responsibility (2011) for Internationally Wrongful Acts.
In 2002 the African Union (AU) definitely succeeded to the Organisation
of the African Unity (OA... more In 2002 the African Union (AU) definitely succeeded to the Organisation
of the African Unity (OAU). The new Pan-African organisation soon proceeded
towards the institution of a regional security system, made up of several organs and
mechanisms and enabled to deploy operative actions. Nowadays the full realisation
of the African security system primarily relies on the availability of the necessary
financial resources. It is well-known that the great majority of the African States is
economically weak. Therefore, some international donors usually give financial
assistance. As a result, the budgetary dependence from abroad is one of the main
problems currently affecting the African security system. The quest for regional
autonomy in peace maintenance, which the African States pursue, further stresses
the said problem. This chapter is divided into two parts. The first part begins with a
focus on the historical and political reasons that led to the establishment of the
African security system. Then, it highlights the quest for autonomy emerging both
from the legal frame and from the complex web of the organs and mechanisms of
the regional security system. The second part of the chapter shows that the funding
of the regional security system mainly depends on the international donors. The
financial support above all comes from the EU, the UN, some NGOs, singlenon-African States and other private actors. The UN also carries out an important
role in the deployment of the AU operative actions.
Rivista di diritto internazionale, 2017
This paper discusses the Jadhav case submitted to the ICJ by India against Pakistan on 8 May 2017... more This paper discusses the Jadhav case submitted to the ICJ by India against Pakistan on 8 May 2017. The case concerns the alleged violation of the 1963 Vienna Convention on Consular Relations with regard to the detention and trial of an Indian national who was sentenced to death by a Pakistani military court. Pakistan claimed to have applied the 2008 bilateral Agreement on Consular Access, providing that “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits”. Nonetheless, according to India, the bilateral Agreement cannot be invoked before the ICJ, as it was not promptly registered with the UN Secretariat, inconsistently with Article 102 of the UN Charter. The author does not share such a formalistic interpretation of Article 102. This provision aims at discouraging secret treaties. Since the bilateral Agreement has never been secret, it could be invoked before the ICJ regardless of its registration. Hence, it was not necessary for Pakistan to register the bilateral Agreement after India had instituted proceedings before the ICJ.
This paper examines the recent practice concerning the relationship
between the Order of Malta an... more This paper examines the recent practice concerning the relationship
between the Order of Malta and the Holy See with the aim to better define the relationship between the Order of Malta and Italy. It is widely known that in Italy both the judiciary and the executive power qualify the Order as a subject of international law. In particular, to provide the Order with immunities and privileges, the judiciary has often relied on the alleged premise of its international legal personality. The same presupposition has been applied by the Italian Government to justify the stipulation of some “agreements” with the Order. The analysis of the references to the Holy See in the new Constitutional Charter of the Order and of the recent interventions of the Holy See in the internal affairs of the Order shows that the Order legally depends on the Holy See and that the aforementioned Italian practice does not rely on legal bases but on a sort of tradition.
After a brief outline of the African Human Rights System, the paper analyses the human right to h... more After a brief outline of the African Human Rights System, the paper analyses the human right to health enshrined in Article 16 of the African Charter on Human and Peoples' Rights (ACHPR). In particular, it deals with the effective implementation of the human right to health in the African national orders. The Guidelines on the Economic, Social and Cultural Rights in Africa, the practice of the African Commission and, mainly, the practice of the States Parties to the ACHPR help to lead the analysis in greater depth. As for the State practice, particular attention is paid to the implementation of the human right to health during the Ebola Crisis in the Western African States. The conclusion about the effective domestic implementation of the human right to health follows. Introductorily, the paper also focuses on the legal perspective adopted in order to develop the research.
This paper deals with the Mike Campbell (PVT) Ltd et Al. v. Zimbabwe case and subsequent events. ... more This paper deals with the Mike Campbell (PVT) Ltd et Al. v. Zimbabwe case and subsequent events. In its judgment concerning that case, the
Tribunal of the Southern African Development Community (SADC) characterized as unlawful the expropriations ordered by Zimbabwe according to the Land Acquisition Amendment Act. The Tribunal’s judgment led to the suspension of the SADC Tribunal Protocol. The States parties to the Protocol modified it to the effect that individuals would be precluded from applying to the Tribunal. These events represent an interesting starting point for some reflections on the position of individuals in contemporary international law. In particular, the State practice arising from the Campbell case is not in line with the view asserting the centrality of the individual in international law. While a phenomenon of “humanization” is indeed shaping international law, the “humanization” of international law does not go beyond the content of its norms. The Campbell case contributes to showing that the Westphalian structure of the international legal system, based on State consent, has not been overcome.
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Papers by Giuseppe Pascale
under the African Human Rights System, partly with the aim to fill the gaps found
in the works of the Rapporteur on provisional measures of the Institute of International
Law. After a brief overview of the provisional measures issued by the African
Commission, it examines the precautionary power of the African Court, reaching the
conclusion that the Court is inconsistent in the use of such power. This conclusion
derives from an analysis of three main and interrelated critical issues, namely: (i) the
binding or recommendatory nature of the provisional measures of the African Court;
(ii) their domestic implementation; and (iii) the potential responsibility of States that
fail to implement them. These critical issues are introduced and observed through
the lens of the paradigmatic Saïf al-Islam Kadhafi case, where the African Court
first stated that the provisional measures were binding on the State concerned but
then, after ascertaining the lack of compliance with such measures, abstained from
declaring any resulting international responsibility of that State.
to the debate between universalism and cultural relativism in international human
rights law. In particular, it shows the predominance of cultural relativism in the African
Human Rights System. In order to reach such outcome, the chapter assesses the scarce significance
of the Universal Declaration of Human Rights – that is the main symbol of the
universalist approach to international human rights law – in the African Human Rights System.
First, the Universal Declaration is barely considered in the African Charter on Human
and Peoples’ Rights, protecting (on the contrary) the African cultural traditions, sometimes
even to the detriment of certain “universal” human rights. Second, the Universal Declaration
has a marginal position in the practice of the African Commission on Human and Peoples’
Rights, notwithstanding the relevant reference in Art. 60 of the African Charter concerning
the law from which the Commission shall draw inspiration. Third, the Universal
Declaration has a very limited role also in the case law of the African Court on Human and
Peoples’ Rights, although the Court has a broad ratione materiae competence and claimants
report very often about alleged violations of the Universal Declaration by States. In a nutshell,
it is submitted that the cultural relativism of the African Charter has remained unchallenged,
and has been even enhanced in the practice of the African Commission and in the
case law of the African Court, where the Universal Declaration has thus found little space.
problems concerning the continuity of family status established abroad. Indeed, according to the M.S. judgment, the family status resulting from an Islamic kafala passed in Algeria (to the benefit of an Algerian child and two French spouses who had moved to the United Kingdom
for working reasons) must be recognised in the British legal system. Otherwise, the United Kingdom would violate EU Law on family reunification – which of course is highly related to the free movement of persons and thus to the European economic integration – in addition
to both the right to respect for private and family life and the best interests of the child as enshrined in the Charter of Fundamental Rights of the European Union. The value of the M.S. judgment is also assessed against the relevant international treaty provisions and case law of
the European Court of Human Rights concerning the Islamic kafala.
alcuni aspetti delle misure provvisorie indicate dalla Corte africana,
tra cui il più controverso è quello dei loro effetti. Dal dato normativo
non si evince infatti se tali misure dispieghino effetti vincolanti o meramente
raccomandatori. Dopo aver brevemente inquadrato i principali
caratteri del potere cautelare della Corte africana, si darà conto della rilevante
giurisprudenza, prestando particolare attenzione all’affare Saif
al-Islam Gheddafi, nel cui contesto la Corte ha sottolineato per la prima volta e in maniera paradigmatica gli effetti vincolanti di tutte le misure
provvisorie da essa ordinate e ha enfatizzato l’autonoma responsabilità
cui incorrerebbe lo Stato che non si conformasse alle suddette misure.
Si illustreranno quindi gli argomenti che concorrono a dimostrare la
correttezza dell’orientamento della Corte. Si porrà poi in rilievo come,
tuttavia, la Corte non sia mai giunta a dichiarare la responsabilità degli
Stati che non eseguono le misure provvisorie da essa indicate, cosa peraltro
assai frequente. Fermo restando il carattere vincolante di tali misure,
si evidenzierà allora come una certa incoerenza contraddistingua la
Corte africana nell’esercizio del proprio potere cautelare e si delineeranno
le possibili conseguenze di una simile incoerenza.
of the African Unity (OAU). The new Pan-African organisation soon proceeded
towards the institution of a regional security system, made up of several organs and
mechanisms and enabled to deploy operative actions. Nowadays the full realisation
of the African security system primarily relies on the availability of the necessary
financial resources. It is well-known that the great majority of the African States is
economically weak. Therefore, some international donors usually give financial
assistance. As a result, the budgetary dependence from abroad is one of the main
problems currently affecting the African security system. The quest for regional
autonomy in peace maintenance, which the African States pursue, further stresses
the said problem. This chapter is divided into two parts. The first part begins with a
focus on the historical and political reasons that led to the establishment of the
African security system. Then, it highlights the quest for autonomy emerging both
from the legal frame and from the complex web of the organs and mechanisms of
the regional security system. The second part of the chapter shows that the funding
of the regional security system mainly depends on the international donors. The
financial support above all comes from the EU, the UN, some NGOs, singlenon-African States and other private actors. The UN also carries out an important
role in the deployment of the AU operative actions.
between the Order of Malta and the Holy See with the aim to better define the relationship between the Order of Malta and Italy. It is widely known that in Italy both the judiciary and the executive power qualify the Order as a subject of international law. In particular, to provide the Order with immunities and privileges, the judiciary has often relied on the alleged premise of its international legal personality. The same presupposition has been applied by the Italian Government to justify the stipulation of some “agreements” with the Order. The analysis of the references to the Holy See in the new Constitutional Charter of the Order and of the recent interventions of the Holy See in the internal affairs of the Order shows that the Order legally depends on the Holy See and that the aforementioned Italian practice does not rely on legal bases but on a sort of tradition.
Tribunal of the Southern African Development Community (SADC) characterized as unlawful the expropriations ordered by Zimbabwe according to the Land Acquisition Amendment Act. The Tribunal’s judgment led to the suspension of the SADC Tribunal Protocol. The States parties to the Protocol modified it to the effect that individuals would be precluded from applying to the Tribunal. These events represent an interesting starting point for some reflections on the position of individuals in contemporary international law. In particular, the State practice arising from the Campbell case is not in line with the view asserting the centrality of the individual in international law. While a phenomenon of “humanization” is indeed shaping international law, the “humanization” of international law does not go beyond the content of its norms. The Campbell case contributes to showing that the Westphalian structure of the international legal system, based on State consent, has not been overcome.
under the African Human Rights System, partly with the aim to fill the gaps found
in the works of the Rapporteur on provisional measures of the Institute of International
Law. After a brief overview of the provisional measures issued by the African
Commission, it examines the precautionary power of the African Court, reaching the
conclusion that the Court is inconsistent in the use of such power. This conclusion
derives from an analysis of three main and interrelated critical issues, namely: (i) the
binding or recommendatory nature of the provisional measures of the African Court;
(ii) their domestic implementation; and (iii) the potential responsibility of States that
fail to implement them. These critical issues are introduced and observed through
the lens of the paradigmatic Saïf al-Islam Kadhafi case, where the African Court
first stated that the provisional measures were binding on the State concerned but
then, after ascertaining the lack of compliance with such measures, abstained from
declaring any resulting international responsibility of that State.
to the debate between universalism and cultural relativism in international human
rights law. In particular, it shows the predominance of cultural relativism in the African
Human Rights System. In order to reach such outcome, the chapter assesses the scarce significance
of the Universal Declaration of Human Rights – that is the main symbol of the
universalist approach to international human rights law – in the African Human Rights System.
First, the Universal Declaration is barely considered in the African Charter on Human
and Peoples’ Rights, protecting (on the contrary) the African cultural traditions, sometimes
even to the detriment of certain “universal” human rights. Second, the Universal Declaration
has a marginal position in the practice of the African Commission on Human and Peoples’
Rights, notwithstanding the relevant reference in Art. 60 of the African Charter concerning
the law from which the Commission shall draw inspiration. Third, the Universal
Declaration has a very limited role also in the case law of the African Court on Human and
Peoples’ Rights, although the Court has a broad ratione materiae competence and claimants
report very often about alleged violations of the Universal Declaration by States. In a nutshell,
it is submitted that the cultural relativism of the African Charter has remained unchallenged,
and has been even enhanced in the practice of the African Commission and in the
case law of the African Court, where the Universal Declaration has thus found little space.
problems concerning the continuity of family status established abroad. Indeed, according to the M.S. judgment, the family status resulting from an Islamic kafala passed in Algeria (to the benefit of an Algerian child and two French spouses who had moved to the United Kingdom
for working reasons) must be recognised in the British legal system. Otherwise, the United Kingdom would violate EU Law on family reunification – which of course is highly related to the free movement of persons and thus to the European economic integration – in addition
to both the right to respect for private and family life and the best interests of the child as enshrined in the Charter of Fundamental Rights of the European Union. The value of the M.S. judgment is also assessed against the relevant international treaty provisions and case law of
the European Court of Human Rights concerning the Islamic kafala.
alcuni aspetti delle misure provvisorie indicate dalla Corte africana,
tra cui il più controverso è quello dei loro effetti. Dal dato normativo
non si evince infatti se tali misure dispieghino effetti vincolanti o meramente
raccomandatori. Dopo aver brevemente inquadrato i principali
caratteri del potere cautelare della Corte africana, si darà conto della rilevante
giurisprudenza, prestando particolare attenzione all’affare Saif
al-Islam Gheddafi, nel cui contesto la Corte ha sottolineato per la prima volta e in maniera paradigmatica gli effetti vincolanti di tutte le misure
provvisorie da essa ordinate e ha enfatizzato l’autonoma responsabilità
cui incorrerebbe lo Stato che non si conformasse alle suddette misure.
Si illustreranno quindi gli argomenti che concorrono a dimostrare la
correttezza dell’orientamento della Corte. Si porrà poi in rilievo come,
tuttavia, la Corte non sia mai giunta a dichiarare la responsabilità degli
Stati che non eseguono le misure provvisorie da essa indicate, cosa peraltro
assai frequente. Fermo restando il carattere vincolante di tali misure,
si evidenzierà allora come una certa incoerenza contraddistingua la
Corte africana nell’esercizio del proprio potere cautelare e si delineeranno
le possibili conseguenze di una simile incoerenza.
of the African Unity (OAU). The new Pan-African organisation soon proceeded
towards the institution of a regional security system, made up of several organs and
mechanisms and enabled to deploy operative actions. Nowadays the full realisation
of the African security system primarily relies on the availability of the necessary
financial resources. It is well-known that the great majority of the African States is
economically weak. Therefore, some international donors usually give financial
assistance. As a result, the budgetary dependence from abroad is one of the main
problems currently affecting the African security system. The quest for regional
autonomy in peace maintenance, which the African States pursue, further stresses
the said problem. This chapter is divided into two parts. The first part begins with a
focus on the historical and political reasons that led to the establishment of the
African security system. Then, it highlights the quest for autonomy emerging both
from the legal frame and from the complex web of the organs and mechanisms of
the regional security system. The second part of the chapter shows that the funding
of the regional security system mainly depends on the international donors. The
financial support above all comes from the EU, the UN, some NGOs, singlenon-African States and other private actors. The UN also carries out an important
role in the deployment of the AU operative actions.
between the Order of Malta and the Holy See with the aim to better define the relationship between the Order of Malta and Italy. It is widely known that in Italy both the judiciary and the executive power qualify the Order as a subject of international law. In particular, to provide the Order with immunities and privileges, the judiciary has often relied on the alleged premise of its international legal personality. The same presupposition has been applied by the Italian Government to justify the stipulation of some “agreements” with the Order. The analysis of the references to the Holy See in the new Constitutional Charter of the Order and of the recent interventions of the Holy See in the internal affairs of the Order shows that the Order legally depends on the Holy See and that the aforementioned Italian practice does not rely on legal bases but on a sort of tradition.
Tribunal of the Southern African Development Community (SADC) characterized as unlawful the expropriations ordered by Zimbabwe according to the Land Acquisition Amendment Act. The Tribunal’s judgment led to the suspension of the SADC Tribunal Protocol. The States parties to the Protocol modified it to the effect that individuals would be precluded from applying to the Tribunal. These events represent an interesting starting point for some reflections on the position of individuals in contemporary international law. In particular, the State practice arising from the Campbell case is not in line with the view asserting the centrality of the individual in international law. While a phenomenon of “humanization” is indeed shaping international law, the “humanization” of international law does not go beyond the content of its norms. The Campbell case contributes to showing that the Westphalian structure of the international legal system, based on State consent, has not been overcome.
Alla luce di queste considerazioni, il presente volume intende offrire un’occasione per riflettere sui problemi e sulle linee di tendenza in materia di tutela internazionale della libertà religiosa. La ricerca trae origine dal dialogo tra gli internazionalisti e gli ecclesiasticisti della Facoltà di Giurisprudenza della Sapienza ma ha poi acquisito un respiro ampio e un carattere più interdisciplinare grazie all’apporto di studiosi anche di altre materie giuridiche.
I contributi sono raccolti in tre parti. Nella prima vengono tracciati i profili generali della tutela internazionale della libertà religiosa, con riguardo non soltanto al sistema delle Nazioni Unite e agli strumenti internazionali rilevanti sul piano regionale (la Convenzione europea dei diritti dell’uomo e la Convenzione americana dei diritti umani; la Carta africana dei diritti dell’uomo e dei popoli, la Carta araba dei diritti umani e la Dichiarazione dell’ASEAN dei diritti umani; il diritto dell’Unione europea), ma anche al rapporto tra Santa Sede e Comunità internazionale e all’influenza del diritto internazionale sulla tutela costituzionale della libertà religiosa nell’ordinamento italiano. La seconda parte è dedicata all’esame delle diverse declinazioni della libertà religiosa attraverso lo studio delle connessioni – talvolta conflittuali – con altri diritti umani, quali il diritto al rispetto della vita privata e familiare (inclusa la vita familiare omosessuale) e la libertà di espressione, nonché all’analisi delle interazioni – ugualmente assai complesse – con alcuni assunti fondamentali degli ordinamenti interni, come il principio di laicità in relazione all’esposizione dei simboli religiosi o i precetti della sharia nei Paesi islamici dell’Africa mediterranea. Nella terza parte sono infine affrontate le questioni sollevate dall’esercizio della libertà religiosa da parte di gruppi o categorie di persone particolarmente vulnerabili (le minoranze, i richiedenti asilo, i minori e i detenuti) nonché nell’ambito di contesti problematici, come i conflitti armati per quanto concerne la tutela dei luoghi di culto o la situazione di certi Stati africani per l’accesso alle alte cariche pubbliche.