Μου είχαν ζητήσει να γράψω για νομική επιθεώρηση, μια βιβλιοκρισία για έναν Τιμητικό Τόμο Ιταλίδας νομικού. Μόλις την τελείωσα και την έστειλα, έμαθα ότι δυστυχώς η νομική αυτή επιθεώρηση δεν θα εκδίδεται πια, για οικονομικούς λόγους. Λυπάμαι πολύ γι'αυτό... Πάντα λυπάμαι όταν κλείνει η "ζωή" ενός εντύπου... Εύχομαι να αναστραφεί αυτή η κατάσταση και να επανεκδοθεί -αδύνατον φαντάζει, αλλά ποτέ δεν ξέρει κανείς.
Οι υπέροχες αυτές ζωγραφιές είναι στην περίφραξη των έργων επισκευής των κτηρίων που είχαν καεί πριν λίγα χρόνια, δυστυχώς, Σταδίου και Χρήστου Λαδά. Εύχομαι να "αναστηθούν" τα κτήρια - δυστυχώς οι άνθρωποι που χάθηκαν τότε δεν μπορούν να αναστηθούν...
Studi in onore di Laura Picchio Forlati (a cura di B. Cortese), G. Giappichelli Editore, Torino 2014 p. XXIII + 510.
The present volume in honour of Professor Laura Picchio Forlati, President of the Società Italiana di Diritto Internazionale, reflects the multiplicity of her interests and pays tributes to her curiosity about other fields of research than its own, which is the [Public] International Law, and to her capacity to make obvious the interaction of these fields, by studying and writing about them.
The volume contains the contributions of some students and of many friends of hers. It is divided in four parts: International Law, Private International Law, European Union Law, and Miscellanea. For reasons of space, it is not possible to refer to all contributions in this review; let this fact not create any doubts about the high quality of all contributions.
In the first part is obvious Laura Picchio Forlati’s faible for the protection of human rights, since most of the essays concentrate on its various aspects.
The first contribution is among the most interesting ones. Nerina Boschiero writes on “The Corporate Responsibility to Respect Human Rights and the Question of Universal Civil Jurisdiction in Transnational Human Rights Cases. The U.S. Supreme Court Decision in Kiobel v. Royal Dutch Petroleum” (p. 3-49). At the beginning she points out that “non-state actors, such as transnational corporations and other businesses, can have significant negative impacts” on many and various human rights. She mentions that the case of the title – a class action suit filed by 12 Nigerians plaintiffs against Royal Dutch Petroleum and British Shell Transport and Trading corporations - was brought under the ATS, a judiciary act that had been enacted by the first U.S. Congress in 1789. This act provides that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the U.S.”. This statute had not been applied for almost 200 years, until it was applied in the seminal 1980 case of Filartiga v. Peña-Irala and became ¨the epitome of extraterritoriality” in U.S. law. The author points out that the ATS does not create new U.S. substantive law, but that it permits U.S. courts to enforce specific universal norms of international law, the aim of which is to protect internationally recognized human rights. As Boschiero mentions, the U.S. Supreme Court decision in Kiobel case was issued on April 2013. The Court followed the U.S. Government request and affirmed unanimously the Court of Appeal’s dismissal of the suit, because “all the relevant conduct took place outside the U.S.”.
Giuseppe Palmisano writes “On the Limits of the European Social Charter in Terms of Persons Protected” (p. 87-103). As he points out, the European Social Charter is probably the most comprehensive, internationally, legal instrument for the protection of social rights. He argues that there is, though, “a weak and questionable feature of the system which renders it … not entirely adequate and “modern” as an instrument for the protection of human rights”. And this feature is the personal scope of application, as established in the paragraph 1 of the Appendix to the Charter: the system for the protection of and control of social rights provided for by the Charter does not apply to third State nationals nor to nationals from other State parties, who are usually referred to as “irregular migrants”.
In the second part, the private international law contributions cover a wide scope.
Sergio Carbone, in his contribution about “Autonomia privata nel diritto sostanziale e nel diritto internazionale privato: diverse tecniche e un’unica funzione” (p. 163-184), points out that the sole consensus of the contracting parties, independently from the presence of other elements, is not considered as having a proper power to determine the juridical reality, that is to legitimate the contracting parties to create reciprocal obligations and conform themselves with them. Still one observes an increasing influence of the “material method”, as far as the private international law solutions are concerned.
Pietro Franzina, writes on “Note minime in tema di adattamento, sostituzione ed equivalenza nel diritto internazionale privato dell’Unione europea” (p. 185-194). He admits that the “adaptation” of a norm or of a decision has as a consequence a change of perspective and of sense, the same as when a text is being translated. Nevertheless, he argues, la raison d’être of the adaptation is, functionally, the facilitation of the dialogue, of the coexistence of the various national laws and, procedurally, the achievement of the practical aim to which the norm or the decision are preordained.
Patrick Kinsch argues “Sur la question de la discrimination inhérente aux règles de conflit de lois. Développements récents et interrogations permanentes” (p. 195-203), that the different substantive treatment, in one forum, of two similar situations but in which different laws are applicable (lex fori in the one and a foreign law in the other), is discriminatory. He proposes an approach that consists in seeing in the substantive solution of the foreign applicable law an element of the legal order of the forum, arguing that the same solution had been developed in legal theory, especially the Italian one of the 20th century, in order to formulate an essentially public law analysis of the private international law.
Rui Manuel Moura Ramos writes on “Le nouveau droit international privé des successions de l’Union européenne. Premières Réflexions” (p. 205-235). He stresses the fact that the scope of the Regulation is large, covering not only the classical issues of the jurisdiction, the applicable law and of the recognition and enforcement (either of the judgments or of the authentic acts and the judiciary transactions) but also the European certificate in succession matters, thus allowing the international circulation of the evidence of status and powers concerning the succession. He argues that the Regulation fosters the coincidence of forum and ius and that this fact facilitates the application of law in situations that interest more than one states.
Kurt Siehr, in his contribution about “Right of Personality in European Private International Law: The Law of Personal Names” (p. 251-263), analyzes and evaluates case law and concludes by proposing three Articles of a future European Code of Private International Law, on Law Applicable, Choice of Law and Change of Name by Authority.
The third part gathers the contributions on European Union Law.
Roberto Baratta, in “La maggioranza qualificata inversa nella recente prassi dell’UE” (p. 267-271), stresses the fact that the rule of reverse majority voting has its own precise rationality in the frame of the institutional …., on the condition that the quasi legislative and executive power is exercised exclusively for the general interests of the European Union and in respect of the principles, rules, modalities and limits that are predetermined by the European legislator in the articles 290 par. 1(2) and 291 par. 3, TFUE.
Bernardo Cortese - who is also the editor of this volume -, is “A la recherché d’un parcours d’autoconstitution de l’ordre juridique interindividuel européen: essai d’une lecture pluraliste 50 ans après Van Gend en Loos et Costa contre ENEL”. He points out the fact the Laura Picchio Forlati has persuaded her students that it is important to study this phenomenon of (European) juridical integration by keeping in mind the role that the international law and the mechanisms of adaptation of the international juridical orders in rules of internal law have always played. He argues that the alternative, in our days, is not between integration and defense of the national sovereignties, but it is between the democratization of the European integration and the concrete enough risk of seeing Ευρώπη, not abandoned by her State members that created her, but killed by her sons, her reckless citizens.
Nicoletta Parisi, writing about “La cooperazione di polizia nell’Unione europe fra dimensione garantista ed esigenze di contrasto al crimine transnazionale: le implicazioni in tema di tutela dei diritti della persona” (p. 375-392), highlights the fact that the circulation of the datas in order to prevent or individuate crimes, that also takes place during the criminal investigations, puts at risk the respect of certain fundamental rights of the person. She argues that the protection of the rights of person that are for various reasons involved in the procedures of cooperation between the police authorities of the State members, as well as between those authorities and the various organs and organisms of the European Union, must be given attention to.
The forth part of the volume has the title “Miscellanea” and gathers contributions that interest more than one branches of law but also more disciplines and not just law.
Tarcisio Gazzini, in his contribution with the title “Is There Any Place for Mediation in the Settlement of Disputes Between Foreign Investors and States?” (p. 395-402), speaks in favor of the mediation as a “potentially attractive alternative to arbitration”, for the settlement of investment–related disputes, “due primarily to its affordability and flexibility”.
Edoardo Greppi writes about “La diplomatie cavourienne et les nouveaux usages du droit international” (p. 403-424), a very interesting chapter of the Italian history (of law too) but also of the international law in general. Speaking about the idea of nationality in its proper juridical dimension, he refers mainly to the great Italian jurist, Prof. Pasquale Stanislao Mancini, who was the “juridical father” of the Risorgimento and who later became Minister of Foreign Affairs and member of the Parliament of the Italian Kingdom. As Greppi points out, Cavour supported Mancini’s theory of nationality as the foundation of international law and thus welcomed its voluntary character: according to that theory, the Italian nation was the group of all the persons who wanted to be a nation.
Erik Jayme, in his contribution about “Richard Wagner: i beni di memoria ed altre questioni giuridiche con particolare riguardo ai conflitti di leggi” (p. 425-432), writes about the great composer and the issues that were created (and still are) between his descendants. He refers especially to the concept of “beni di memoria” or “carte di famiglia”, he mentions, among other things, that the French jurisprudence has invented a special regime for the “souvenirs de famille” or that the German jurisprudence has created a post mortem right of personality, based on the constitutional principle of protection of the person’s dignity, and presents the conflict of law issues that the courts had to resolve because of the publication of Wagner’s 40 letters, after his death, without having asked for a permission.
Karl Kreuzer writes about the “Konkordatäre Anerkennung kirchlicher Ehegerichtsbarkeit“ (p. 439-451). As he points out, the exclusive jurisdiction of the church courts on the marriage issues, from the middle of the 12th century until the Reformation, was not contested in the Christian societies of Europe. The situation changed when Luther spoke about the marriage as a “weltlich Ding”, on which the state jurisdiction is exclusive.
Tullio Scovazzi, in his contribution about “Il patrimonio culturale intangibile e le Scuole Grandi veneziane” (p. 467-476), refers to a particular element of the history of Venice: le Scuole Grandi. As he explains, they were – and six of them still are – associations founded on the basis of a statute called “mariegola”, that means “madre regola” (mother rule) and having as aims the religious devotion and the charity. Today they are considered as part of the “patrimonio culturale”, tangible and intangible, of the city of Venice. He argues that they should figure in the representative list of the intangible cultural heritage of the humanity that has been set by the UNESCO Convention of 2003.
Spyridon Vrellis writes about “Règles de déontologie en matière de biens culturels” (p. 477-486). He points out that often the official law does not suffice to reach the desirable result and that for that reason the members of the society either individually or in the form of particular groups, take the initiative to formulate rules of ethics, which could be of help for the insufficiencies of the [official] law. This is what has happened in the world of art too, where codes of ethics have been issued, containing principles that may be considered as a minimum of ethical behavior. Such rules could in the future become transnational customary law, parallel to the written one, so that those laws would complement each other.
Concluding, one may say that the high quality of all the contributions makes more than evident that the authors hold Laura Picchio Forlati in high esteem.
Elina N. Moustaira
Professor of Comparative Law