Private and Public law lesson 3 International law and the relationships between the international legal order and domestic legal order

International law and Italian law ______________________________ - international public law - international private law - comparative law

The “addressees” of international norms _________________________________ - Relationships among States - Relationships between States (member States) and international bodies (international organizations, etc.) - individuals?

International law and Italian law ______________________________ Art. 10, par. 1, of the Italian Constitution: “Italy conforms to commonly recognized international law” custom

International law and Italian law ______________________________ Art. 11 of the Italian Constitution: “Italy consents, on a reciprocity basis with other States, to limitations to sovereignty for the purpose of ensuring peace and justice among Nations; it promotes international organizations devoted to that purpose” treaties

International law and Italian law ______________________________ Art. 117 of the Italian Constitution: “The legislative power is exercised by the State and the Regions, within the limits set out by the Constitution, the EU law and the international legal order”

Implementing international law into domestic law __________________________________________ - ordinary proceeding: international norms are “reworded” according to Italian law. Italian norms “replace” international norms - “special” proceeding: an “order” issued by an Italian Authority makes the international norm binding in Italy, by reference to the international law source (e.g., art. 10 Constit. > international custom)

What if the international norms were incorrectly transposed into domestic law? Ordinary proceeding: the Italian norm will be binding anyway. No right to apply the international norm Special proceeding: in case of dispute, the contents of the international norm will have to be construed by the domestic Court

Self-executing norms: they do not need any implementation measure, under Italian law Non self-executing norms: they need to be supplemented / “completed” by Italian legal norms. Non directly applicable in Italy, unless by means of a specific measure created according to Italian law

In particular, non self-executing norms may be: norms creating mere faculties or generic rights in favor of States norms creating obligations, but States do not have internal bodies or proceedings to make such obligations effective

non self-executing norms Ordinary proceeding is required (they need to be transposed and supplemented in their contents)

in the system of sources of law _________________________________ International norms in the system of sources of law _________________________________ Ranking depends on the type of domestic measure (law, decree, etc.) implementing the international norm into Italian law. E.g.: - If the implementing norm is a provision contained in the Constitution, the norm has Constitutional “ranking” (e.g., see Art. 10 of the Constitution) - if the implementing norm is an ordinary law, the ranking is equal to that of ordinary laws - Similarly: administrative ranking

international custom _________________________________ The implementation of international custom _________________________________ - Automatic, continuous and permanent implementation into Italian law - each domestic operator (Judge) will have to interpret the international norm - Constitutional ranking (Art. 10 Constitution) - It prevails over ordinary laws - What if international custom conflicts with the Constitution? In principle, the State should be under an obligation to conform to international custom (and, thus, the Constitution should be amended). However, the “domestic fundamental principles” may not be overturned. Conflicts are rather unlikely to happen

international treaties _________________________________ The implementation of international treaties _________________________________ The Constitution does not provide for any obligation or automatism (in contrast with Art. 10 Constitution, regulating international custom) At least, need for an “implementing order” (ordinary law, administrative deed, etc.), ensuring that the international norm is applied in Italy (“incorporation by reference”), without “recreating” that in Italy: domestic Courts will have to construe the international norm and interpret/apply that. The Constitutional Court will be competent to identify any conflict with the Constitution Both the ordinary proceeding (creation of a new domestic norm) and the special proceeding (incorporation by reference) may be applicable

International law and Italian law ______________________________ Art. 80 of the Italian Constitution: in specific cases, transposition of international treaties is reserved to the Parliament “Le Camere autorizzano con legge la ratifica dei trattati internazionali che sono di natura politica, o prevedono arbitrati o regolamenti giudiziari, o importano variazioni del territorio od oneri alle finanze o modificazioni di leggi”

in the system of sources of law _________________________________ International norms in the system of sources of law _________________________________ Ranking depends on the type of domestic measure (law, decree, etc.) implementing the international norm into Italian law. The norm so created tends to prevail over subsequent norms deriving from the same source of law

International law and Italian law ______________________________ What if an international treaty is not transposed at all? 1- The treaty is not enforceable in the domestic legal orders: domestic law will prevail 2- Should the norms contained in the treaty be entirely disregarded, or may those represent an (additional) basis for interpretation of matters regulated by domestic law?

International law and Italian law ______________________________ What if an international treaty gives rise to a new international organization, and the latter has its own regulating bodies, issuing decisions binding the member States? 1- If the treaty expressly contemplates the power to issue self-executing norms, implementation is automatic (e.g., EU Regulations) 2- Otherwise, implementation will have to be put in place from time to time, with respect to each decision of the international organization > in any event: supervision by the Constitutional Court

to implement international norms _________________________________ The power of Regions to implement international norms _________________________________ Article 117 of the Constitution: (i) the central State is entitled to issue norms regarding foreign policy and its relationships with the EU; (ii) Regions are entitled to issue norms, in cooperation with the central State, regulating the Regions’ relationships with the EU and with the international legal order; international trade law; (iii) Regions: agreements with foreign States or regions regarding matters in which Regions are competent, with a “framework” law adopted by the central State All “implementation orders” are issued by the central State: any Regional laws conflicting with such orders may be declared void/unconstitutional Regions are entitled to issue detailed regulations, to ensure that international norms are adequately applied in their territories. However, according to the Constitutional Court, the Central State may at any time replace the Regions when the need to ensure compliance with international obligations comes into play

What if the domestic law does not ensure compliance with international obligations? International liability of the State _______________________________________________________________ “Code” drafted by the United Nations Commission on International law, regulating State liability: 1. a behavior attributable to the “State” (in a large sense, including, inter alia, Regions and other territorial entities) 2. a breach of binding international law

What if a breach of international law is put in place by an entity acting outside the scope of its powers? ________________________________________________________ The State (to which the acting body belong) is also responsible (art. 7 of the UN Commission “Code”): the State could have prevented/cured the breach event, but it didn’t (B) The State is not responsible: the acting body is the only liable subject. The State, however, is liable for failing to take appropriate control measures