1,721,099 research outputs found
Attività di impiego e di testing di armi anti-satellite e diritto internazionale
No full textAnti-satellite weapons (ASAT) are one of the major challenges to international security in the «Fourth Domain», namely outer space. This was proved by the test made by Russia in November 2021 and the reaction of the international community. The present testing of said arms against its own satellites, as well as the future and probable operating use of said arms against satellites of other States, raises the problem of their compatibility with international law. In particular, it is being debated in various international fora the legality of ASATs, whose use can generate space debris further congesting terrestrial orbits, thus interfering (and jeopardizing) the activities of other States.
The article concentrates on the existing rules of space law (jus ad bellum), (jus in bello) and environmental law in order to define the limits imposed on such activities. Then the author reviews the very recent phenomenon of unilateral declarations, by some States, of renunciation to test direct-ascent, kinetic ASAT, in order to assess if such renunciation may constitute the embryo of evolving customary law
Numeri, persone, umanità : sistemi di supporto alle decisioni umane in campo militare da parte dell’IDF e diritto internazionale umanitario.
No full textThe Israel Defense Forces (IDF) have been actively employing Decision Support Systems (DSS) such as Gospel, Lavender, and Where’s Daddy in the operational theatre against Hamas. According to a recently published investigative article, those systems allegedly allow human operators to select eligible targets within a limited timeframe (about 20 seconds); what is more, those systems’ margin of error
would be around 10%. It is thus questionable whether human operators maintain meaningful human control over DSS systems. The paper analyzes this technology through the lens of existing rules and principles of International Humanitarian Law (IHL), namely distinction, proportionality, and precautions in attack. It then turns to a core principle of that branch of international law, that is the principle of humanity as encapsulated in the Martens Clause and in other relevant rules. While arguing that DSS are not prohibited per se, the paper strives to demonstrate not only their actual inconsistency with the abovementioned norms, but also their impact on how those are interpreted and applied in practice. A rediscovery of the content of those principles, particularly humanity, by international and domestic judges may be beneficial when addressing this technology and future ones
Il mito del giudicato civile e amministrativo alla prova degli obblighi internazionali di restitutio in integrum
No full textThe principles of res judicata and legal certainty in terminated civil and administrative proceedings
often clash with the obligation of restitutio in integrum stemming from the violation of international
law, namely of human rights provisions such as the European Convention on Human Rights (ECHR).
Frequently, the European Court on Human Rights indicates the re-opening of terminated proceedings
as (one of) the most appropriate form for redress. The Italian Constitutional Court, however,
has recently held that the lack of specific clauses allowing for the re-opening of civil and administrative
proceedings which have resulted in the violation of the ECHR does not contravene the Constitution.
The arguments resorted to in order to justify such decision – the circumstance that no precise
duty seems to stem from the European Court’s jurisprudence; the need to preserve the legitimate
interests of third parties; the convenience of a normative reform by the Parliament – are not fully
convincing though. On such premise, the present contribution aims at analyzing the European
Court’s jurisprudence on re-opening clauses with a view to testing the Italian Constitutional Court’s
reasoning and advocating for a more principled appraisal of such jurisprudence: the focus will be
mostly on the state of the art at both the ECHR and the international level
‘Scacco' all'ergastolo ostativo: brevi note a margine della pronuncia della Corte europea dei diritti dell'uomo nel caso Viola c. Italia (n. 2) e del suo impatto sull'ordinamento italiano
Full text linkIl contributo fornisce un primo commento alla sentenza resa dalla Corte EDU nel caso Viola c. Italia (n. 2), riflettendo sul suo possibile impatto nell'ordinamento giuridico italiano
Rilevazione, creazione, resistenza: l'opinione separata e il diritto internazionale
No full textSeparate opinions have made the object of extensive scholarship in recent decades: in the international legal order, this is a consequence of that institution’s peculiar success, as virtually all judiciary and quasi-judiciary bodies allow for the allegation of separate opinions (either concurring or dissenting) to their rulings. This contribution tests the impact of separate opinions on subsequent case law and opinions, on the process of international law-making, and eventually on the mechanisms through which the Italian legal order adapts to international law as interpreted by international judiciary or quasi-judiciary bodies. The practice under scrutiny is admittedly multifarious; yet, it demonstrates that it is possible to frame separate opinions within the system of international law sources. Their usefulness as a means of ascertaining existing law, as a stimulus for the creation of new law, and as a tool allowing for the adaptation of domestic law to international law is undisputed still today
An Only Child without “Younger Brothers”: Contrada v. Italy (No. 3) and the Never-Ending Saga of the Relationship between Italian Courts and the ECtHR
Full text linkCorte di Cassazione (Sezioni Unite Penali), 3 March 2020, No. 8544 Criminal proceedings against Stefano Genc
On American Drone Strikes And (Possible) European Responsibilities: Facing The Issue Of Jurisdiction For “Complicity” In Extraterritorial Targeted Killings
Full text linkStates Party to the European Convention of Human Rights (ECHR) regularly
provide third States with key aid or assistance in performing extraterritorial
targeted killings through armed drones: by doing so, they can be said to engage
in conduct amounting to “complicity” for the purposes of international law of
State responsibility. Strictly speaking, however, ECHR provisions do not apply
to such conduct, which cannot be included into existing models of “jurisdiction”
as per Article 1 ECHR – namely, “spatial” and “personal”. This results in a
troublesome legal vacuum. The present article proposes an appraisal of such
conduct through the lenses of a third jurisdictional model, already acknowledged
by other human rights systems but largely ignored (or even discarded)
by the European Court of Human Rights: the so-called “impact” model, which
covers extraterritorial effects of territorial conduct. It will be demonstrated that
to a limited extent the ECHR case-law already resorts to such model, as in several
cases jurisdiction is believed to arise when impugned events, albeit taking
place extraterritorially, are the consequence of State’s conduct (thus through a
“causation” test) or when third States’ conduct can somehow be attributed to a
State Party (through an “attribution” test). Albeit implicitly, this is an endorsement
of the “impact” model of jurisdiction. It is argued that the Court should
fully recognize this third model, and consequently apply it to extraterritorial
conduct amounting to “complicity” in order to ensure a principled scrutiny over
States Party’s conduct
The Holy See's Position on Lethal Autonomous Weapons Systems
Full text linkThe issue of lethal autonomous weapons systems (laws) goes to the heart of
the debate
on new warfare technologies: States, international organizations, non-governmental
organizations and civil society at large have long been discussing the
acceptability of ‘autonomous killing’. The present contribution zooms in on the position
held by the Holy See, exploring its content and the main arguments which support
the call of a ban on such technology. Both diplomatic statements and doctrinal
teachings will be tackled. Importantly, a solid argument for a prohibition of laws is
based on the moral unacceptability of autonomous killing, which may assume also a
legal standing through the so-called Martens Clause. The history and the actual content
of the Clause will be analyzed in order to explore whether – and to what extent – it
can be interpreted so as to offer a legal ground for rejecting laws. It will be argued that
the Holy See is in a particularly fit position to advocate for a renewed appraisal of the
Martens Clause that may help the pro-ban front to structure a more principled
debate
Chi uccide paga. Modelli di responsabilità internazionale dello Stato e armi autonome
No full textThe increasing use of AI techniques in the military raises multifarious questions, related not only to the ability of Autonomous Weapon Systems (AWS) to operate within the rules that international law provides for the use of force, but also to issues of international responsibility
The political question doctrine vis-à-vis drones' ‘outsized power': Antithetical approaches in recent case-law
Full text linkThe contributions deals with recent judgments delivered by domestic courts (in the US and Germany) and dealing with the justiciability of drone strikes
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