THE GLOBAL COMMUNITY
Yearbook of International Law and Jurisprudence
Edited by
Giuliana Ziccardi Capaldo
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ISSN: 1535-9468
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Aims & Scope
Outline of the Parts
EDITORIAL
The Taricco Affair: A Dialogue Between the Deaf and the Dumb. A Proposal to Strengthen Cooperation Between the ECJ and National Courts
Giuliana Ziccardi Capaldo
PART 1: ARTICLES
“External Stakeholder Benevolence”: An Emerging Policy Paradigm in International Criminal Justice?— Critical Reflections on the Paris Declaration 2017 and the Oslo Recommendations 2018 on the Efficiency and Legitimacy of International Courts
Michael Bohlander
How to Reconcile Human Rights, Trade Law, Intellectual Property, Investment and Health Law? WTO Dispute Settlement Panel Upholds Australia’s Plain Packaging Regulations of Tobacco Products
Ernst-Ulrich Petersmann
The Citizen and the State: A Paradoxical Relation
Chris Thornhill
PART 2: NOTES AND COMMENTS
Statehood and Recognition in International Law: A Post- Colonial Invention
Jean d’Aspremont
3
21
69
103
139
Misdiagnosing the Human Rights Malaise: Possible Lessons from the Danish Chairmanship of the Council of Europe 153
Jacques Hartmann
Article 103 of the UN Charter and Security Council Authorizations 165
Robert Kolb
Under Construction: The Euro-Mediterranean Free Trade Area (EMFTA) 173
Francesco Seatzu
PART 3: IN FOCUS— GLOBAL POLICIES AND LAW
Demilitarizing Palestine. A Flawed Legal Approach to Middle East Peace 191
Louis René Beres
Illiberal versus Liberal State Branding and Public International Law: Denmark and the Approximation to Human(itarian) Rightlessness 207
Anja Matwijkiw & Bronik Matwijkiw
A Constitutional-Driven Change of Heart. ISP Liability and Artificial Intelligence in the Digital Single Market 237
Oreste Pollicino & Giovanni De Gregorio
Appendix of the Part—Topics Covered in the Previous Issues (2008–2017) 265
PART 4: FORUM— JURISPRUDENTIAL
CROSS- FERTILIZATION: AN ANNUAL OVERVIEW
I. Introductory Module—MISSION AND CONCEPTS 271
I.1 The Continuity of Jurisprudential Cross-Fertilization in the Case-Law of International Tribunals in Their Common Mission of Realization of Justice, Antônio Augusto Cançado Trindade 273
II. Module— CRIMINAL LAW—The Relationship Between International Criminal Tribunals and Their Relationship with the ICJ or Another International Court or Arbitral Tribunal 281
II.1 The ICC Appeals Chamber’s Judgment in The Prosecutor v. Bemba et al. A Reminder of the Often Overlooked Value of International Jurisprudence Concerning Offences Against the Administration of Justice, Anda Scarlat 283
III. Module—HUMAN RIGHTS LAW—The Relationship Between Courts of Human Rights and Their Relationship with the ICJ or Another International Court or Arbitral Tribunal 303
III.1 Reparations for Victims of Mass Atrocities: Actual and Potential Contributions of the Inter-American Court of Human Rights to the International Criminal Court, Juan-Pablo Perez-Leon-Acevedo 305
IV. Module—INTERNATIONAL AND DOMESTIC LAW—The Relationship Between International and Domestic Courts
IV.1 Collective Reparations as a Partial Remedy for State-Perpetrated Blanket Violations of the Rights of Targeted Child Asylum Seeker Groups, Sonja C. Grover 339
PART 5: GLOBAL JUSTICE—
DECISIONS OF INTERNATIONAL COURTS AND TRIBUNALS IN 2017
Edited by Giuliana Ziccardi Capaldo
I.1
I.2
MAXIMS: SUMMARIES AND EXTRACTS FROM SELECTED CASE LAW, (Giuliana Ziccardi Capaldo)
I.2.1 Jadhav Case (India v. Pakistan), Request for the Indication of Provisional Measures, Order, 18 May 2017
AND EXTRACTS FROM SELECTED CASE LAW, (Emilio Sessa)
II.2.1 Dispute Concerning Delimitation of the Maritime Boundaries Between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, 23 September 2017
AND EXTRACTS FROM SELECTED CASE LAW, (Joanna Gomula)
III.2.1 Russian Federation—Measures on the Importation of Live Pigs, Pork and Other Pig Products from the European Union (WT/DS475/AB/RW), Appellate Body Report circulated on 23 February 2017, adopted on 21 March 2017 459
III.2.2 United States—Certain Methodologies and Their Application to Anti-Dumping Proceedings Involving China (WT/DS471/ AB/R), Appellate Body Report circulated on 11 May 2017, adopted on 22 May 2017 464
III.2.3 United States—Conditional Tax Incentives for Large Civil Aircraft (WT/DS487/AB/R), Appellate Body Report circulated on 4 September 2017, adopted on 22 September 2017 468
IV.1
III.2.4 European Union—Anti-Dumping Measures on Imports of Certain Fatty Alcohols from Indonesia (WT/DS442/AB/R), Appellate Body Report circulated on 5 September 2017, adopted on 29 September 2017 471
III.2.5 Indonesia—Importation of Horticultural Products, Animals and Animal Products (WT/DS477, 478/AB/R/), Appellate Body Report circulated on 9 November 2017, adopted on 22 November 2017
Geert-Jan Alexander Knoops
IV.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM SELECTED CASE LAW, (Anna Buono, Maria Elena Castaldo, Marco Naddeo, Anna Oriolo, Anna Vigorito)
IV.2.1 Situation in Côte d’Ivoire 499
IV.2.1.1 The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, Case No. ICC-02/11-01/15, Trial Chamber I, Judgment, 19 July 2017 499
IV.2.2 Situation in Darfur 502
IV.2.2.1 The Prosecutor v. Omar Hassan Ahmad Al-Bashir, Case No. ICC-02/05-01/09, Pre-Trial Chamber II, Decision, 6 July 2017 502
IV.2.3 Situation in the Republic of Mali 506
IV.2.3.1 The Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15, Trial Chamber VIII, Reparations Order, 17 August 2017 506
IV.2.4 Situation in the Democratic Republic of the Congo 511
IV.2.4.1 The Prosecutor v. Bosco Ntaganda, Case No. ICC01/04-02/06, Trial Chamber VI, Judgment, 15 June 2017 511
IV.2.5 Situation in the Republic of Burundi 514
IV.2.5.1 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi, Case No. ICC-01/17-X-9-US-Exp, Pre-Trial Chamber III, Decision, 25 October 2017 514
Systematic Key Items of the Section 523
V. INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 525
V.1 INTRODUCTORY NOTE, Rafael Nieto-Navia 527
V.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM SELECTED CASE LAW, (Anna Buono, Anna Oriolo) 535
V.2.1 Prosecutor v. Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić and Berislav Pušić, Case No. IT-04-74-A, Appeals Chamber, Judgment, 29 November 2017 537
Systematic Key Items of the Section 547
VI.
VI.1 INTRODUCTORY NOTE, Antonio Tizzano 551
VI.2 GENERAL COURT 563
VI.2.1 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM SELECTED CASE LAW, (Federico Bianchi, Carmine Renzulli, Roberto Soprano, Caterina Tuosto) 565
VI.2.1.1 Michael Efler and Others v. European Commission, Case T-754/14, First Chamber, Judgment, 10 May 2017 567
VI.2.1.2 Mohamed Marouen Ben Ali Ben Mohamed Mabrouk v. Council of the European Union, Case T-175/15, Fifth Chamber, Judgment, 5 October 2017 570
VI.2.1.3 Marine Harvest ASA v. European Commission, Case T-704/14, Fifth Chamber, Judgment, 26 October 2017 573
VI.2.1.4 Icap plc and Others v. European Commission, Case T-180/15, Second Chamber, Judgment, 10 November 2017 579
VI.2.1.5 Udo Voigt v. European Parliament, Case T-618/15, Fourth Chamber, Judgment, 20 November 2017 583
VI.2.1.6 Coca-Cola v. EUIPO—Mitico (Master), Case T-61/ 16, Eight Chamber, Judgment, 7 December 2017 586
Systematic Key Items of the Section 591
VI.3 COURT OF JUSTICE 593
VI.3.1 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM SELECTED CASE LAW(Sébastien Brisard, Simona Fanni, Victoria Hanley-Emilsson, Eirini Pantelodimou, Daniela Rodríguez Bautista, Caterina Tuosto, Zsofia Varga, Anna Vigorito) 595
VI.3.1.1 Toshiba Corp. v. European Commission, Case C-623/15 P, Eighth Chamber, Judgment, 18 January 2017 597
VI.3.1.2 Commissaire général aux réfugiés et aux apatrides v. Lounani, Case C-573/14, Grand Chamber, Judgment, 31 January 2017 599
VI.3.1.3 X and X v. État belge, Case C-638/16 PPU, Grand Chamber, Judgment, 7 March 2017 601
VI.3.1.4 A and Others v. the United Kingdom, Case C-158/ 14, Grand Chamber, Judgment, 14 March 2017 604
VI.3.1.5 Samira Achbita v. Centrum voor gelijkheid van kansen en voor racismbestrijding, Case C-157/15, Grand Chamber, Judgment, 14 March 2017 607
VI.3.1.6 Asma Bougnaoui v. Association de défense des droits de l’homme (ADDH), Case C 188/15, Grand Chamber, Judgment, 14 March 2017 610
VI.3.1.7 Furkan Tekdemir v. Kreis Bergstraße, Case C-652/ 15, First Chamber, Judgment, 29 March 2017 612
VI.3.1.8 Sahar Fahimian v. Bundesrepublik Deutschland, Case C-544/15, Grand Chamber, Judgment, 4 April 2017 614
VI.3.1.9 A.S. v. Républika Slovenija, Case C-490/16, Grand Chamber, Judgment, 26 July 2017 617
VI.3.1.10 Khadija Jafari, Zainab Jafari v. Bundesamt für Fremdenwesen und Asyl, Case C-646/16, Grand Chamber, Judgment, 26 July 2017 621
VI.3.1.11 Intel Corp. Inc. v. European Commission, Case C-413/14 P, Grand Chamber, Judgment, 6 September 2017 627
VI.3.1.12 Slovakia and Hungary v. Council, Case C-643/15, Grand Chamber, Judgment, 6 September 2017 632
VI.3.1.13 Criminal Proceedings against Giorgio Fidenato and Others, Case C-111/16, Third Chamber, Judgment, 13 September 2017 635
VI.3.1.14 Toufik Lounes v. Secretary of State for the Home Department, Case C-165/16, Grand Chamber, Judgment, 14 November 2017 639
VI.3.1.15 Coty Germany GmbH v. Parfümerie Akzente GmbH, Case C 230/16, First Chamber, Judgment, 6 December 2017 642
VI.3.1.16 Asociación Profesional Elite Taxi v. Uber Systems Spain SL, Case C-434/15, Judgment, Grand Chamber, 20 December 2017 646
VII.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM SELECTED CASE LAW, (Anna Buono, Simona Fanni, Adriana Fillol Mazo, Ana Cristina Gallego Hernández, Yolanda Gamarra, Diana Marín Consarnau, Juan Francisco Moreno Domínguez, Lucía Ione Padilla, Ángel Tinoco Pastrana, Antonio-Jesus Rodríguez-Redondo, Anna Vigorito) 669
VII.2.1 Case of Hutchinson v. the United Kingdom, Application No. 57592/08, Grand Chamber, Judgment, 17 January 2017 671
VII.2.2 Case of Paradiso and Campanelli v. Italy, Application No. 25358/12, Grand Chamber, Judgment, 24 January 2017 675
VII.2.3 Case of Khamtokhu and Aksenchik v. Russia, Applications Nos. 60367/08 and 961/11, Grand Chamber, Judgment, 24 January 2017 678
VII.2.4 Case of K2 v. United Kingdom, Application No. 42387/13, First Section, Decision, 7 February 2017 681
VII.2.5 Case of De Tommaso v. Italy, Application No. 43395/09, Grand Chamber, Judgment, 23 February 2017 684
VII.2.6 Case of Cerovšek and Božičnik v. Slovenia, Applications Nos. 68939/12 and 68949/12, Fourth Section, Judgment, 7 March 2017 687
VII.2.7 Case of A.-M.V. v. Finland, Application No. 53251/13, First Section, Judgment, 23 March 2017 690
VII.2.8 Case of Chowdury and Others v. Greece, Application No. 21884/15, First Section, Judgment, 30 March 2017 694
VII.2.9 Case of Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina, Application No. 17224/11, Grand Chamber, Judgment, 27 June 2017 696
VII.2.10 Case of Moreira Ferreira v. Portugal (No. 2), Application No. 19867/12, Grand Chamber, Judgment, 11 July 2017 699
VII.2.11 Case of Bărbulescu v. Romania, Application No. 61496/08, Grand Chamber, Judgment, 5 September 2017 705
VII.2.12 Case of Fábián v. Hungary, Application No. 78117/13, Grand Chamber, Judgment, 5 September 2017 710
VII.2.13 Case of Becker v. Norway, Application No. 21272/12, Fifth Section, Judgment, 5 October 2017 715
VII.2.14 Case of Merabishvili v. Georgia, Application No. 72508/13, Grand Chamber, Judgment, 28 November 2017 718
VII.2.15 Case of S.F. and Others v. Bulgaria, Application No. 8138/ 16, Fifth Section, Judgment, 7 December 2017 722
VII.2.16 Case of Chiragov and Others v. Armenia, Application No. 13216/05, Grand Chamber, Judgment, 12 December 2017 725
VII.2.17 Case of Lopes de Sousa Fernandes v. Portugal, Application No. 56080/13, Grand Chamber, Judgment, 19 December 2017 728
Systematic Key Items of the Section 733
VIII. INTER-AMERICAN COURT OF
VIII.1 INTRODUCTORY NOTE, Eduardo Ferrer Mac-Gregor Poisot 737
VIII.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM SELECTED CASE LAW, (Harold Miñarro Escalona, Julie Recinos) 745
VIII.2.1 Caso Zegarra Marín v. Perú, Excepciones Preliminares, Fondo, Reparaciones y Costas, Sentencia de 15 de Febrero de 2017, Série C No. 331 746
VIII.2.2 Caso Favela Nova Brasília v. Brasil, Excepciones Preliminares, Fondo, Reparaciones y Costas, Sentencia de 16 de Febrero de 2017, Série C No. 333 749
VIII.2.3
VIII.2.4
Caso Acosta y Otros v. Nicaragua, Excepciones preliminares, Fondo, Reparaciones y Costas, Sentencia de 25 de Marzo de 2017, Série C No. 334 754
Caso Lagos del Campo v. Perú, Excepciones Preliminares, Fondo, Reparaciones y Costas, Sentencia de 31 de Agosto de 2017, Série C No. 340 758
VIII.2.5 Medio ambiente y Derechos Humanos (Obligaciones estatales en relación con el medio ambiente en el marco de la protección y garantía de los derechos a la vida y a la integridad personal—interpretación y alcance de los artículos 4.1 y 5.1, en relación con los artículos 1.1 y 2 de la Convención Americana sobre Derechos Humanos), Opinión Consultiva OC 23/17, 15 de Noviembre de 2017, Série A No. 23 765
VIII.2.6 Identidad de género, e igualdad y no discriminación a parejas del mismo sexo (Obligaciones estatales en relación con el cambio de nombre, la identidad de género, y los derechos derivados de un vínculo entre parejas del mismo sexo—interpretación y alcance de los artículos 1.1, 3, 7, 11.2, 13, 17, 18 y 24, en relación con el artículo 1 de la Convención Americana sobre Derechos Humanos), Opinión Consultiva OC-24/17, 24 de Noviembre de 2017, Série A No. 24 776
Systematic Key Items of the Section 789
IX. INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES 791
IX.1 INTRODUCTORY NOTE, August Reinisch 793
IX.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM SELECTED CASE LAW, (Jose Magnaye) 809
IX.2.1 Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/21, Award, 30 November 2017 811
IX.2.2 Eiser Infrastructure Limited and Energia Solar Luxembourg S.À.R.L. v. Kingdom of Spain, ICSID Case No. ARB/13/36, Award, 4 May 2017 829
IX.2.3 Orascom TMT Investments S.à.r.l. v. People’s Democratic Republic of Algeria, ICSID Case No. ARB/12/35, Award, 31 May 2017 865 Systematic Key Items of the Section 905
X.1 INTRODUCTORY NOTE, Diego Mejía-Lemos 909
X.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM SELECTED DECISIONS, (Diego Mejía-Lemos) 921
X.2.1 WNC Factoring Ltd v. The Czech Republic, PCA Case No. 2014-34, Award, 22 February 2017 923
X.2.2 Arbitration between the Republic of Croatia and the Republic of Slovenia, PCA Case No. 2012-04, Final Award, 29 June 2017 934
Systematic Key Items of the Section 955
PART 6: RECENT LINES OF INTERNATIONALIST THOUGHT
Enhancing the Globe’s Governance, Struggling with Research and Politics 959
Thomas G. Weiss
GENERAL EDITOR
GIULIANA ZICCARDI CAPALDO
University of Salerno Hippocratica Civitas
EDITORIAL BOARD
ANTÔNIO AUGUSTO CANÇADO TRINDADE
International Court of Justice, The Hague
EDUARDO FERRER MAC-GREGOR POISOT
Inter-American Court of Human Rights, San José
JOANNA GOMULA
University of Cambridge
GEERT-JAN ALEXANDER KNOOPS
University of Amsterdam
ANJA MATWIJKIW
Indiana University Northwest
RAFAEL NIETO NAVIA
Pontificia Universidad Javeriana of Bogotá
NICHOLAS ONUF
Florida International University
MOHAMMED BEDJAOUI
United Nations
MOHAMED BENNOUNA
International Court of Justice, The Hague
ARMIN VON BOGDANDY
Goethe University Frankfurt
Max-Planck-Institut, Heidelberg
ROBERTO F. CALDAS
Inter-American Court of Human Rights, San José
HUGO CAMINOS
University of Buenos Aires
ANTONIO CAPALDO
Catholic University of the Sacred Heart, Milan
SERGIO MARIA CARBONE
University of Genoa
CHRISTIAN DOMINICÉ
University of Geneva
PIERRE MICHEL EISEMANN
University of Paris I Panthéon- Sorbonne
RICHARD A. FALK
Princeton University
DIEGO GARCÍA- SAYÁN
Inter-American Court of Human Rights, San José
SHI JIUYONG
Foreign Affairs College, Beijing
UMBERTO LEANZA
University of Rome Tor Vergata
PAOLO MENGOZZI
Court of Justice of the European Union, Luxemburg
M. CHERIF BASSIOUNI †
ERNST-ULRICH PETERSMANN
European University Institute, Florence
AUGUST REINISCH
University of Vienna
WILLIAM A. SCHABAS
National University of Ireland, Galway
RAMESH THAKUR
Australian National University, Canberra
ANTONIO TIZZANO
Court of Justice of the European Union, Luxemburg
TULLIO TREVES
University of Milan
GUIGUO WANG
Tulane University, New Orleans
THOMAS G. WEISS
City University of New York
ADVISORY BOARD
FRANCO MOSCONI
University of Parma
SHIGERU ODA
Tohoku University
JOSÉ ANTONIO PASTOR RIDRUEJO
Complutense University of Madrid
FAUSTO POCAR
University of Milan
GUIDO RAIMONDI,
European Court of Human Rights, Strasbourg
GEORG RESS
Saarland University, Saarbrücken
FRANCISCO REZEK
University Center of Brasilia
CHRISTOS ROZAKIS
University of Athens
PHILIPPE SANDS
University College London
MOHAMED SHAHABUDDEEN
Institut de Droit International
HUMBERTO ANTONIO SIERRA PORTO
Inter-American Court of Human Rights, San José
CHRISTIAN TOMUSCHAT
Humboldt University of Berlin
JOE VERHOEVEN
University of Paris II Panthéon-Assas
PHILIPPE WECKEL
University of Nice Sophia-Antipolis
FORMER MEMBERS OF THE BOARDS OF EDITORS
DePaul University College of Law, Chicago
FLORENTINO P. FELICIANO †
University of the Philippines
THOMAS M. FRANCK †
New York University School of Law
HÉCTOR GROS ESPIELL †
University of Montevideo
DIEGO MEJÍA-LEMOS
National University of Singapore
JOHN G. MERRILLS †
University of Sheffield
SHABTAI ROSENNE †
Institut de Droit International
ERIC STEIN †
University of Michigan Law School
SOJI YAMAMOTO †
Tohoku University
PIERO ZICCARDI †
University of Milan
Co-Managing Editors
Editorial Assistants
ANNA BUONO
University of Salerno
BRONIK MATWIJKIW
Southeast Missouri State University
ANNA ORIOLO
University of Salerno
AIMS & SCOPE
Editor’s Note
by Giuliana Ziccardi Capaldo*
The Global Community Yearbook of International Law and Jurisprudence (GCYILJ) is a peer-reviewed annual journal, which is included in Scopus and which, so far, has eighteen editions on its publication record. Over the last two decades, the Yearbook has established itself as an authoritative resource on the most significant transformations in the world constitutive process.
The Yearbook makes it possible for its readers to monitor the development of the international order towards a legal system for a global community. In the process of accomplishing this goal, it provides detailed insights into the incremental changes that have occurred, and from several perspectives.
While providing researchers and practitioners with access to a uniquely rich resource for the study of international jurisprudence, the Yearbook also promotes discussion on current issues that impact substantive and procedural aspects of global law. Each contribution affords the reader with an opportunity to reflect upon a piece of cutting-edge research.
The Yearbook continues to address, discuss and monitor “the structuring process of a global community in which a coherent legal system for a universal human society is being built.” This succinct quote is from the inaugural editorial of this journal (G. Ziccardi Capaldo, 2001), and it is deliberately chosen to highlight the continuity of the Yearbook’s overarching theme: global law, global constitutionalism and global governance.
The theoretical parts of the Yearbook (Articles, Notes and Comments, In Focus, Forum) contain accounts provided by leading scholars and judges from all over the world on current and future developments in international law and global policies, as well as trends in global justice and the impact of judicial pronouncements pertaining to the building of the new legal world order.
As a platform for continuous analysis and assessment, the Yearbook welcomes interdisciplinary contributions too. In 2017 and in recognition of its impact on global law, global constitutionalism and global governance, ethics was listed among those areas and perspectives
* Professor of International Law (Emeritus), University of Salerno, Italy; General Editor.
that form integral parts of the journal’s process of continuous renewal. This step is, in one sense, a logical one for the purpose of monitoring the development of the international order towards a legal system for a global community, albeit ethics currently must be viewed as an embryonic phenomenon. The Yearbook aspires to respond to exactly such a phenomenon, especially since various precursors for its integration appear to contain a promise for a dynamic pattern.
Concerning continuity, the Yearbook has already celebrated its 15th anniversary. On that occasion, in 2015, I announced the most recent improvements and the future course of the journal. In 2017, I mentioned yet more changes. Now, in 2018, I can present the following summary of the steps to enhance the Yearbook going forward as follows.
First, several other distinguished scholars agreed to join the boards (see Editor’s Note, of this Yearbook 2015), just as we embarked on a number of new projects that are either in the execution phase or have been completed. Unfortunately, we had to announce the departure of two giants of international law. It was with great sadness that the Yearbook had to mention the loss of respectively Professor M. Cherif Bassiouni and Professor John Merrills, authoritative members of the Board of Editors.
Second, the Yearbook has been redesigned. Previously, it was published in two volumes. The Yearbook now consists of one volume. Besides improving the user experience of the print version, this change will also improve the e-book and its Oxford Scholarship Online (OSO) version. The latter constitutes an important step and tool for the Yearbook.
Third, since 2015, the Yearbook has regularly featured commentaries on the OUPblog on a variety of topics. The 2017 edition continued this activity with much enthusiasm (see my post No-impunity as a Global Constitutional Principle, January 11, 2018 at https://blog. oup.com/2018/01/no-impunity-constitutional/).
However, the 2017 edition also introduced a couple of changes to the part 6, entitled “Recent Lines of Internationalist Thought,” which has otherwise been included in the Yearbook since 2006. The main objectives of this part are to give an overview and a critical appraisal of the current international law literature, provide readers with an opportunity to study and interpret issues from different perspectives, examine different methodologies, and explore ideas from different cultures. Another novelty for this part concerns the subject behind the original authorship—meaning that the Scholar/Judge who contributes thoughts and ideas is also talking about his own work. It is customary for somebody in authority to talk about himself! The Yearbook wishes to utilize this fact and indeed resource as yet another platform for disseminating research findings as well as communicating experiences of a more practical-professional nature.
Professor Cançado Trindade’s 2017 contribution was the official inauguration of the above-mentioned new features of the part. Being widely recognized for his very creative ideas and innovative approaches, the choice of Professor Cançado Trindade was a perfect one for this special occasion. The Yearbook used the form of an “autobiographical essay” to capture his experiences in different roles, from teaching international law to practicing as a Judge and President of international courts. It is hardly surprising that one of the main intentions was and—after having launched the format successfully—continues to be to shine the light on the challenges faced by the emerging world society.
In this edition (2018), the reader will thus be able to enjoy an exciting and intriguing encounter with Professor Thomas Weiss’s magistral essay for the part 6 in question. In this piece, the author’s pursuit of global governance is explored both in his capacity as a scholar and as a practitioner. Scholarly-analytically, the essay addresses the contemporary reality of international organizations and multilateral cooperation. However, as former chair of the Academic Council on the UN System and as a recognized authority on international organizations, Professor Weiss draws on valuable professional experiences when he focuses
on the world organization’s under-appreciated contribution to key ideas, norms, principles, and standards.
Among the most significant changes concerning parts 4 and 5 that deal with international jurisprudence, I would like to address the following:
Beginning with the 2009 edition, the Yearbook has undergone a process of gradual restructuring to update the part 5 that is now entitled “Global Justice—Decisions of International Courts and Tribunals.” This part, divided into sections and primarily devoted to the highest judicial bodies, continues to report annually on significant international case law, as systematically ordered by legal maxims. Between 2009 and 2018, we have set up a new format for “legal maxims” whereby the most important elements of the judicial decisions are now distilled, while leaving aside the facts of the case as much as is possible. The extraction of legal maxims from the courts’ decisions, together with their elaboration and systematic classification, is the core of the uniqueness of the Yearbook. The remarkable development of the international courts and tribunals has made it increasingly difficult to follow closely the wealth of case law now emanating from the relevant jurisdictions, without the help of an intermediary. Therefore, both the originality and utility of the Yearbook lie precisely in its “intermediation” function—between case law and international scholars, practitioners, and students.
The contents of this new edition (2018) have been enriched with the inclusion in the last mentioned part of a new section devoted to the Permanent Court of Arbitration (PCA), the oldest global institution that offers a wide range of services for the settlement of international disputes. It is a great achievement for the journal to have a continuous pattern of growth, expansion and innovation together with an established record of high-quality publications in the field of international jurisprudence, thereby presenting a wide spectrum of international case law and varied expert opinions at the highest levels. For this purpose, it should be mentioned that, as in the past, an Introductory Note, written by distinguished and internationally renowned academics and judges on each judicial body, provides a synopsis of their activity over the course of the year.
Furthermore, beginning with the 2010 issue, the Yearbook has included the part 4 entitled “Forum—Jurisprudential Cross-Fertilization: An Annual Overview.” Using comparative analysis, this highlights the interconnections between the decisions of international courts and tribunals. The Yearbook is the first academic journal to present an annual overview of the process of cross-fertilization between courts. A comprehensive and complete survey by eminent international law scholars exploring, evaluating and documenting this process has the potential to promote a favourable environment for the courts to advance judicial cooperation with a view to the possible harmonization of legal principles governing the global community.
Finally, among the noticeable improvements is the increased online availability of the Yearbook (which is available on Oxford Scholarship Online: http://www.universitypressscholarship.com/search?isQuickSearch=) as well as the journal’s new website (at http://www. globalcommunityyearbook.org/) that provides much more information on the journal (including the Archive of the editions from 2001 to date).
This positive development will enable Global Community YILJ to continue to strengthen its reputation as a leading journal in its field.
I express my warmest thanks to the members of the Editorial and Advisory Boards, authors and reviewers for their dedicated contributions to the continuing success of the journal. I extend my thanks to the Oxford University Press team, especially the current editor, Dennis Gargano who, in addition to taking care of the production of the journal with great skill and dedication, has been heavily involved in the process of growth and change. 13th December 2018
OUTLINE OF THE PARTS
The Yearbook is structured into the following parts:
ARTICLES
This part is devoted to significant doctrinal contributions to international legal theory and gives priority to works dealing with changes in the rules and structure of the international community. The aim is to follow the development of the international legal order and the building of the global community heralded at the end of the second millennium. This part is at all times open to report on fresh developments and to debate new, and other contradictory, trends.
NOTES AND COMMENTS
This part contains short articles on current issues in international/global law. In line with the Yearbook’s orientation, comments addressing international case law are given precedence.
IN FOCUS
Beginning with the 2008 issue, the Yearbook includes a part entitled “In Focus—Global Policies and Law,” exploring the globalization of politics, communication, economics, culture, and the environment, while identifying objectives, programmes, models, public policy choices and emerging global policies, and considering some of the major issues and challenges facing the world as a whole, in an attempt to enhance the coordination and harmonization of norms and procedures and the implementation of global law.
FORUM— JURISPRUDENTIAL CROSS- FERTILIZATION: AN ANNUAL OVERVIEW
Beginning with the 2010 issue, the Yearbook includes a new part, aiming to compare and analyse the interconnections between the decisions of international courts and tribunals, as a way of exploring and examining judicial dialogue and the development of common legal principles and concepts in all branches of international law.
To this end we have chosen to focus on the areas of international law in which different international courts operate; therefore, this part consists of seven modules corresponding to the areas listed below (in addition, an introductory module has been added to illustrate key concepts):
Introductory Module. MISSION AND CONCEPTS
Module I. CRIMINAL LAW—The Relationship Between International Criminal Tribunals and their Relationship with the ICJ or Another International Court or Arbitral Tribunal.
Module II. EUROPEAN LAW—The Relationship Between the European Courts and their Relationship with the ICJ or Another International Court or Arbitral Tribunal.
Module III. HUMAN RIGHTS LAW—The Relationship Between Courts of Human Rights and their Relationship with the ICJ or Another International Court or Arbitral Tribunal.
Module IV. ECONOMIC AND FINANCIAL LAW—The Relationship Between International Judicial Bodies in Economic Matters and their Relationship with the ICJ or Another International Court or Arbitral Tribunal.
Module V. INVESTMENT LAW—The Relationship Between the ICSID Tribunals and the ICJ or Another International Court or Arbitral Tribunal.
Module VI. ENVIRONMENTAL LAW, LAW OF THE SEA, GLOBAL COMMONS LAW—The Relationship Between the ITLOS and the ICJ or Another International Court or Arbitral Tribunal.
Module VII. INTERNATIONAL AND DOMESTIC LAW—The Relationship Between International Courts and Domestic Courts.
The aim is to identify the emergence of common rules (substantial and procedural) in the various contexts. In each area eminent international law scholars will carry out an analysis of the points of convergence and divergence not just between the decisions handed down by courts operating in the same area but also between the decisions of tribunals and international courts operating in other areas, dealing with different matters, examining the coherence (or lack thereof) of their jurisprudence when they apply the same international norms, also of a customary law nature. In comparing the decisions of the various tribunals, a constant element will be the reference to the International Court of Justice and the way the decisions of other international tribunals relate to its jurisdiction. However, not all the modules will be offered annually but only whenever there are developments in each of them that will be interesting to note.
The Yearbook is the first academic journal to present an annual overview of the process of cross-fertilization between courts, based on the drafting and systematic classification of legal maxims (i.e., points of law decided by various international courts) in the part entitled “Global Justice—Decisions of International Courts and Tribunals.” A comprehensive and complete survey by eminent international law scholars exploring, evaluating and documenting this process has the potential to enhance our contribution and thus further guide our understanding of how to reduce conflicts and create an effective exchange of legal reasoning between different courts. The aim is to promote a favourable environment for the courts to advance the process of judicial cooperation with a view to the possible harmonization of legal principles governing the global community.
GLOBAL JUSTICE— DECISIONS OF INTERNATIONAL COURTS AND TRIBUNALS
The decisions of international courts and tribunals receive ample coverage in the Yearbook, reflecting their recognized importance for the development of international law.
International courts and tribunals covered include: International Court of Justice, International Tribunal for the Law of the Sea, WTO Dispute Settlement System, International Criminal Court, International Criminal Tribunal for the Former Yugoslavia, General Court and Court of Justice of the European Union, European Court of Human Rights, InterAmerican Court of Human Rights, International Centre for Settlement of Investment Disputes, Permanent Court of Arbitration. Moreover, if there were no decisions issued by these tribunals for the year under consideration, we would omit the relating section.
Each major international court or tribunal has its own section, which includes an Introductory Note on the activity of that judicial body over the course of the year under consideration. The activities of the court and tribunals are presented in the form of “legal maxims,” i.e., brief and easily understood extracts of statements on international law announced in a judicial decision, focusing on points of law decided by various international courts, systematically arranged.
Normally, the maxims consist of integral citations from the text of the judgment. However, divergences from the original text (i.e., omissions or additions) are marked by the use of square brackets (round brackets with dots are used to indicate that the quotation which follows is situated in the original text before the previous quotation). Maxims usually reproduce the text of several extracts drawn from different paragraphs of the decision to which reference is made. Further, to give the reader an immediate idea of the constituent parts of the maxim, the paragraph number corresponding to each extract is given below each legal maxim in the order in which they have been used.
The maxims are collected according to the “Systematic Classification Scheme,” which can be found at the beginning of this part. This scheme has two parts, dealing respectively with substantive and procedural international law. Each of these parts is further divided into headings and sub-headings.
The maxims are systematically presented and also logically arranged in such a manner as to permit the reading of the overall context of each decision, serving as a forerunner to the full reading of the text of each judgment.
The chosen working-method has been adapted from the one successfully employed in the “Repertory of Decisions of the International Court of Justice/Répertoire de la Jurisprudence de la Cour Internationale de Justice” (1947–1992), by Giuliana Ziccardi Capaldo, 1995.
The following information is also given for each decision covered: a) the full title of the case and the parties to it, where these exist; b) the type of decision, the date, and the original language; and c) reference to the collection of Reports in which the original text of the decision is to be found and/or specialised websites for Internet access.
RECENT LINES OF INTERNATIONALIST THOUGHT
This part, included in the Yearbook since 2006, focuses on the thought of leading international law scholars “innovative” in their responses to challenges that have faced contemporary world society. The purpose is to give an overview and a critical appraisal of the current international law literature providing readers with an opportunity to view arguments from different perspectives, to examine different methodologies and to explore ideas reflecting cultural diversity. This would certainly allow an understanding of the relevance of internationalist thought on the changes in international law and contemporary politics in the context of globalization.
GENERAL INFORMATION
The journal is included in Scopus, the largest abstract and citation database of peerreviewed literature.
This issue may be cited as 18 Global Community YILJ 2018, G. Ziccardi Capaldo General ed. (2019).
All views expressed in the articles, notes and comments, editorial comments, and other contributions to the Yearbook represent the opinions of the individual authors and should not be interpreted as an expression of the views of the Editors.
Submission of Manuscripts
Manuscripts should be submitted by email to globalcommunity@tin.it preferably in English, although a small percentage of papers may be accepted in other languages (French, German and Spanish) at the discretion of the General Editor. Abstracts should be submitted in English only.
The Yearbook is committed to ensuring ethics in publication and quality of articles. Manuscripts submitted for publication are blindly peer-reviewed. The Yearbook will not consider submissions whose content has been, or will be, published before it appears in this Yearbook. It is therefore important to agree upon ethical guidelines for Yearbook publication—see Publication Ethics & Malpractice Statement available on the journal’s website at http://www.globalcommunityyearbook.org/index.php where you can find other useful information.
Manuscripts should meet the editorial standards specified in the Yearbook’s stylesheet, which may be obtained from the journal’s website. The latter also provides other helpful information about the Yearbook, including the content of previous volumes.
Orders
The Global Community Yearbook of International Law and Jurisprudence is published annually (in two volumes from 2002 to 2014 edition; in one volume from 2015 edition on) in English. For more information and to order a volume, please see: https://global.oup. com/academic/content/series/g/global-community-yearbook-of-international-law-andjurisprudence-glocom/?lang=en&cc=it
The Yearbook is also available in nonprint form on Oxford Scholarship Online (OSO), one of the leading academic research resources in the world accessed by students, academics and researchers across the globe. Available online from 2013 onwards at http://www. universitypressscholarship.com/ search?isQuickSearch=true&pageSize=10&q=global+ community+yearbook+of+international+law+and+jurisprudence&sort=date
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The Taricco Affair
A Dialogue Between the Deaf and the Dumb. A Proposal to Strengthen Cooperation Between the ECJ and National Courts
BY GIULIANA ZICCARDI CAPALDO*
Abstract
The author addresses “the dialogue between the deaf and the dumb” that occurred between the European Court of Justice (ECJ) and the Italian Constitutional Court (ItCC) regarding the Taricco affair. At the request of the Italian courts, the ECJ has ruled on the interpretation of Article 235 TFEU in the fight against VAT fraud (“Taricco rule”) in two judgments which, despite some shortcomings in their implementation, are innovative, i.e., based on new principles of global law that provide effective judicial protection of economic and social human rights. The author notes the failure of the dialogue between the ItCC (“deaf”)—which has blocked the door to the Taricco rule by virtue of being unable to grasp the novelty of the two judgments—and the ECJ (“dumb”)—incapable of interpreting and disseminating global law. This article identifies the path to a constructive dialogue in what the author calls a “knowledge dialogue,” suitable to create a shared understanding of global principles for a uniform system of protection of fundamental rights.
I. INTRODUCTION
The failure of the dialogue between the European Court of Justice (ECJ) and the Italian Constitutional Court (ItCC) on the interpretation of Article 325 of the Treaty on the Functioning of the European Union (TFEU), which occurred in two judgments (Taricco1
* Professor of International Law (Emeritus), University of Salerno, General Editor.
1 ECJ, Ivo Taricco and Others, Case C-105/14, Grand Chamber, Judgment (Sept. 8, 2015) (hereinafter Taricco).
The Global Community: Yearbook of International Law and Jurisprudence 2018. Giuliana Ziccardi Capaldo. © Oxford University Press 2019. Published 2019 by Oxford University Press.
and M.A.S.2) delivered by the ECJ in the Taricco affair concerning criminal proceedings for infringements related to value added tax (VAT), necessitates reflection on the need and method to strengthen the dialogue between the ECJ and national courts on fundamental rights. The explanations are detailed below. They include a larger role of the ECJ in the interpretation and knowledge-dissemination of principles of global law3 involved in the reasoning that forms the basis of its judgment.
This is what emerges from the cases at hand. In interpreting TFEU’s Article 325 in Taricco, the ECJ imposed on national courts, in accordance with the principle of the precedence of EU law, the obligation to disapply domestic rules that do not ensure the punishment of those guilty of serious fraud (namely, the non-applicability of statutory limitations such as Articles 160 (last paragraph) and 161(2) of the Italian Criminal Code).4 In this way, the ECJ clearly aimed at achieving substantial imprescriptibility. The court argued that the behaviours of the national courts would not be in breach of the legality principle enshrined in Article 49 of the Charter of Fundamental Rights.5
In a previous work, I highlighted two closely related characteristics of the Taricco judgment. One is that the ECJ’s approach to the interpretation and application of the obligation to combat fraud, imposed on member states by Article 325 of the TFUE, opens up for an innovative view of tax fraud as a crime against human rights,6 in accordance with the expansion of international human rights law (IHRL) at both the global and EU level and the evolution of legal sources on economic, social and cultural rights. In fact, through the EU’s financial interests, the court judgment provided protection of EU citizens’ economic and social rights. Furthermore, I pointed to the expansion of the global constitutional principle of no-impunity. Its application in the Taricco judgment to those guilty of serious fraud affecting the financial interests of the European Union served particularly to reinforce the no-impunity/imprescriptibility paradigm of the new criminal jurisdiction for the International Criminal Court (ICC),7 as announced in its Policy Paper on Case Selection and Prioritisation (PCSP)8 and in accordance with the core UN human rights system and the acceptance of the principle of indivisibility under IHRL.9
In the light of the ECJ’s approach in the Taricco judgment, I saw an opportunity to develop a judicial dialogue between international and national courts as regards fundamental human rights.10 In my opinion, such a dialogue had to address the “humanitarian” purpose
2 ECJ, M.A.S. and M.B., Case C-42/17, Grand Chamber, Judgment (Dec. 5, 2017) (hereinafter M.A.S.).
3 Giuliana Ziccardi Capaldo, The Pillars of Global Law (2008), at 21–42; 137–170.
4 M.A.S., supra note 1, para. 52.
5 Id., para. 55.
6 Giuliana Ziccardi Capaldo, Getting to a Global Constitution Expanding Human Rights Law: The Application of the No-Impunity Principle to Tax Fraud Offences, Editorial, 17 Global Community YILJ 2017, G. Ziccardi Capaldo General ed. 3–12 (2018), at 7–8.
7 Id., at 5–7, 10–12. See also infra, note 58.
8 Office of the Prosecutor Policy Paper on Case Selection and Prioritisation, Sept. 15, 2016 (internal document of the Office) (hereinafter ICC Policy Paper).
9 With the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, there is much clearer acceptance of the principle of indivisibility under international human rights law. See Resolution A/RES/63/117, on 10 Dec. 2008.
10 Ziccardi Capaldo, supra note 6, at 9–10. See in general, above all Antônio Augusto Cançado Trindade, Contemporary International Tribunals: Their Jurisprudential Cross-Fertilization Pertaining to Human Rights Protection, 14 Global Community YILJ 2014, G. Ziccardi Capaldo General ed. 209–216 (2015); Id., Contemporary International Tribunals: Jurisprudential Cross-Fertilization in the Case-Law of International Tribunals in Their Common Mission of Realization of Justice, ibidem, 203–209 (2018).
of the sentence at stake and its place in the global regulatory framework. If anything, this was made even more necessary by Order no. 24/2017,11 as rendered by the ItCC, at the request of the Italian Supreme Court of Cassation and the Court of Appeal of Milan (the referring courts),12 which were engaged in criminal proceedings against Mr. M.B. and Mr. M.A.S. respectively (charged with serious fraud relating to VAT) and which challenged the ECJ Grand Chamber judgment in Taricco by asserting a contrast between the ECJ’s interpretation of the TFEU’s Article 325 (“Taricco rule”) and the fundamental principle of legality, as set forth in Article 25(2) of the Italian Constitution (under which the legality principle in criminal matters also covers statutes of limitation periods), that affords to the accused person the right to be tried and punished only in accordance with an existing law.13 Therefore, there were compelling reasons for the ECJ in the subsequent ruling (M.A.S.) that it should enter into a dialogue with the internal courts (and other internal bodies) not only to remedy the shortcomings of the previous sentence (with respect to the requirements of legal certainty and non-retroactivity of criminal law) but also to clarify the evolution of international law concerning financial frauds as well as the EU response to new trends in the relevant regard.
In the following, I will examine the legal developments of the Taricco affair (sections I–II). By analyzing the various positions that emerged in the dialogue-confrontation between the ECJ and the ItCC, I will explore the causes of communicative failure between the two courts (section III), while suggesting that the ECJ has to renew the impetus for fruitful and stronger judicial dialogue (sections IV–V), thereby embarking on the path towards a more effective use of the preliminary procedure to respond to a threefold purpose: (1) to contribute “to the strict observance and the development of international law” (Article 3(5) of the Treaty on European Union (TEU);14 (2) to promote “an international system based on stronger multilateral cooperation and good global governance (Article 21(2)(h) of the TEU;15 and (3) to foster and defend the highest values and principles of humanity and, in the process of this, promoting the universality and indivisibility of human rights16 (sections VI–VII).
11 Italian Constitutional Court, Order No. 24 (26 Jan. 2017), English text, at <http://www.cortecostituzionale. it/documenti/download/doc/recent_judgments/O_24_2017.pdf>.
12 Court of Appeal, Milan, Order No. 339 (Sept. 18, 2015) and Supreme Court of Cassation, Order No. 212 (July 8, 2016).
13 At the origin of the judgment in M.A.S. is thus the interpretation laid down in Taricco regarding Article 325 TFEU.
14 Treaty on European Union—TITLE I COMMON PROVISIONS—Article 3(5): “In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter” (OJ 2012 C 326, at 17).
15 Treaty on European Union—TITLE V GENERAL PROVISIONS ON THE UNION’S EXTERNAL ACTION AND SPECIFIC PROVISIONS ON THE COMMON FOREIGN AND SECURITY POLICY—CHAPTER 1—GENERAL PROVISIONS ON THE UNION’S EXTERNAL ACTION: Article 21(2) “The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: [. . .] (h) promote an international system based on stronger multilateral cooperation and good global governance” (OJ 2012 C 326, at 29).
16 Under Article 21(1) TEU: “The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the
