Italy and International Law. Survey of Italian cases and materials on International law by the Institute for International Legal Studies of the National Research Council of Italy is an online publication produced by the Institute for International Legal Studies (ISGI) within the framework of the project “Italy and the International Legal Order”. It follows ISGI’s traditional line of document based research, of which the most known example is La prassi italiana di diritto internazionale.
While this latter focused on the contribution made by Italy to the formation and evolution of customary international law, the specific object of the publication we present here is the relationship between international and Italian domestic law and, in particular, the execution and application of treaties in Italy.
The main content of Italy and International Law consists, therefore, in a reasoned selection of Italian legislation, jurisprudence and practice (the Survey), relevant under the abovementioned legal aspect. One may also find a section dedicated to a fuller examination of a specific case of international law concerning Italy, which is also furnished with the relevant documentation (Focus).
In this first issue of Italy and International Law the editors present: a selection of acts and documents covering approximately 200 legislative acts, court cases and documents related to monitoring procedures for the implementation of treaties, all emerging from Italian practice in the two year period 2012 and 2013; a “Guide to Reading” the Survey; and an analysis of the international law aspects of the so-called “marò” case.
All of the documents in the Survey are systematically classified by subject. To this classification are added three Indexes; by category, by treaty and a chronological index (2012–2013). The text of each act or document is accompanied by: its bibliographic or sitographic source, an abstract summarising the most relevant issues from the point of view of the relationship between domestic and international law, and information useful in improving its understanding or in highlighting any correlations with other acts or documents. Consultation is further facilitated by the possibility of searching by Subject, by Index or by Key Word.
As for the contents of this first issue of the Survey, they are sufficiently wide-ranging so as to offer an instrument for knowledge and evaluation which is not limited merely to the most known or striking cases. This, obviously, is without pretence to being exhaustive, also because what the editors wished to achieve – a specialised online legal database – circumscribed ab initio the area of investigation to the acts and documents of which the text is available in telematic format, namely those published in the Official Journal of the Italian Republic (G.U.), on the websites of national and international institutions, or in most authoritative online legal journals.
Furthermore, it has to be stressed that acts, documents and cases concerning the application of EU Law in Italy were not considered, apart from those which are relevant from the perspective both of the application of international law in the EU legal system, and of the impact of such application on the Italian legal order.
The subject matters, which are classified in general items and specific sub-items (with a maximum of two levels of sub-items under the same general item), reflect the amplitude and diversification of the areas of State activity in which the consequences of Italy’s participation in international relations manifest themselves. The items and sub-items are therefore the usual ones of “public” and “private” international law. It has however to be noted that the items which can be found in the classification were identified, as was inevitable, on the basis of the material offered by the two year period under consideration. This explains the presence, on the one hand, of highly specific or quite unusual items, which result from recent legislative and jurisprudential developments and, on the other hand, the complete absence of some important and traditional legal concepts and principles which found no correspondence in the examined practice. It is also for this reason, as well as for conforming to the general practice adopted in analogous legal telematic databases, that it has been preferred to list the items in alphabetic rather than in systematic order.
As for the wording chosen for identifying items and sub-items, it corresponds as far as possible to that of the relevant normative acts, both treaties and national legislation. A good example is the comprehensive item “Human Rights”, which in its wording essentially conforms to the terminology of the ECHR, which is also widely used in Italian domestic jurisprudence and practice. But again, however, the contents of the materials offered by the two year period has influenced some editorial choices (one example among many can be found within the item “Peace and Security”, where the rather generally titled sub-item “International Missions” has been suggested by the heterogeneity of the civil and military operations in which Italy participates, a kind of heterogeneity which is also reflected in the relevant parliamentary acts of authorisations).
The practice of referring from item to item with the two formulations “see” and “see also” has been used only where strictly necessary, in order to avoid duplication of material and to facilitate wider consultation, respectively. The main criterion has been rather to make recourse to multiple classifications for the same act or document, with a view to enabling consultation of every relevant legal aspect of the act or document in question.
With respect to the typology of the documents (see index by category) account has been taken, above all, of the two typologies of data which State practice is mainly inferred from, that is to say national legislation and case law. Alongside these data, it seemed opportune to place a relatively new, but already well documented, category of data, that is documents and reports produced in the context of international monitoring procedures for the implementation of treaties.
In so far as legislative acts are concerned, the complexity of the first phase in the preparation of the Survey , and not any lack of awareness by the editors of the important role played in legislation by Italian Regions, suggested to circumscribe the research works, for the time being, to the legislative activity of the State.
As for the case law and jurisprudence, in addition to judgements and orders of the Constitutional Court (published in the Official Journal), researches have been extended to include also, as far as possible, other judicial decisions which are not always available in telematic format: those of the Court of Cassation, the Trial Judges, the Regional Administrative Tribunals, the Council of State, and the Surveillance Magistrate (“magistratura di sorveglianza”).
On the contrary, as regards judgements of International Courts and Tribunals, they have been considered to fall outside the area of interest of the research; nor did it seem useful to duplicate extensively, within the Survey, documents and materials which can be easily and comprehensively found on the relevant institutional websites (such as that, for example, of the European Court of Human Rights). However, for the ease of the reader, it has been decided to give space to some few international judgements pronounced against Italy, as they are often referred to in Italian internal judicial decisions and have considerably influenced domestic legal practice.
Turning to the monitoring procedures for the implementation of treaties, the Survey includes both the reports (or other documents) submitted by Italy to the relevant monitoring bodies, and also the reports or conclusions on Italy adopted by such bodies or international organisations.
The number of treaties and international organisations providing for the establishment and functioning of such monitoring mechanisms is, as is well known, very high. In this case, again, not all the documentation is equally accessible online, either because of the confidentiality of certain procedures or for other reasons. This explains the rationale and scope of the research carried out on this area: on the one hand, examining a wide range of different specific sectors regulated by conventional international law, on the other hand, not overlooking investigation of the most important multilateral treaties dealing with the protection of assets or values of general interest to the international community.
It is also worth stressing that, even if the Survey does not lack for acts and documents not having reference to any specific treaties, the opposite – that is the case of acts and documents having reference to a specific treaty – is greatly prevalent. Hence, the usefulness of the Index by Treaty, which is mainly conceived for the benefit of those who were interested, in particular, in the implementation of a given treaty, rather than in the general issue of the application of treaties in Italy.
Lastly, the Survey is equipped, as we have touched upon, with two search engines which allow the consultation of documents using personalised criteria. Thus, with reference to a given item or sub-item, or a given treaty, the function “Search by Subjects and by Indexes” permits to combine different searching criteria, by selecting, for example, either case law, or legislation, or the documents relating to international monitoring procedures. But it is also possible, in addition, to effect a “Key Word” search, that is a search for words contained in the list of “Subjects”, or in the “Indexes”, or also in the title, the abstract or the text of each act and document, with the limitation that searching for words in the entire text is only possible for those acts reproduced from the “Official Journal” (legislation and Constitutional Court’s jurisprudence).
As is the tradition in the legal research activity of the National Research Council of Italy, this new publication from the Institute for International Legal Studies is aimed not only at legal experts and professionals in the field of law but, more widely, at national institutions, research centres, scientific or academic associations, organizations operating in the sector of international relations, and – beyond – at all those who wish to widen their knowledge about the multiplicity of effects of international law on the everyday life of individuals and groups within the State.
The editors hope that Italy and International Law will provide readers with further food for thought on how much has been done and how much remains to be done in order to achieve full respect for international obligations in the Italian legal order.