Since 1993, the World Bank has created the Inspection Panel, an independent complaints mechanism ... more Since 1993, the World Bank has created the Inspection Panel, an independent complaints mechanism for people and communities who believe that they have been, or are likely to be, adversely affected by projects financed by the Bank in violation of its own internal rules. This accountability mechanism was significantly revised in 2020. Pursuant to the revised version, before being examined by the Panel, disputes may be resolved after recourse to mediation, with the conclusion of an agreement between the authorities of the territorial State and the project-affected communities. For the first time following the 2020 reform, the mediation procedure has been activated in a case brought to the attention of the Panel by a group of persons living in Kampala (Uganda), near the Lubigi Drainage Channel. They argued that, by financing the widening of this channel, the World Bank was infringing upon its Operational Policies on Forced Evictions, Environmental Assessment, and Physical Cultural Resources. The paper examines the new mediation system in the light of its first application, highlighting its effectiveness and, at the same time, its most problematic aspects.
Per quanto l’Unione Europea si ponga come apripista nell’attuazione di politiche di mitigazione e... more Per quanto l’Unione Europea si ponga come apripista nell’attuazione di politiche di mitigazione e di adattamento, il contributo della Corte di Lussemburgo alla giustizia climatica appare piuttosto deludente. La prima parte del presente contributo evidenzia le ragioni di ordine procedurale che ostacolano l’accesso alla giustizia climatica di fronte alla Corte di Lussemburgo, per poi mettere in luce come la tutela ambientale venga prevalentemente in rilievo nel diritto dell’Unione come interesse collettivo, senza che si sia affermato un diritto individuale all’ambiente salubre. La seconda parte si sofferma invece su alcuni recenti arresti giurisprudenziali e su possibili sviluppi normativi, orientati nel senso di un ampliamento dell’accesso alla giustizia ambientale e climatica davanti ai giudici degli Stati membri.
This paper tackles legal and policy issues concerning Marine Protected Areas (MPAs) in the Medite... more This paper tackles legal and policy issues concerning Marine Protected Areas (MPAs) in the Mediterranean Sea. Since the 1970s, Mediterranean Countries have been at the forefront in international cooperation for the protection of marine ecosystems: notably, significant results have been achieved through the establishment of a network of Specially Protected Areas of Mediterranean Interest (SPAMIs). After framing the general legal context, the paper examines the specificities of the above network, while at the same time pointing out its weakness when put to the test of facts. Accordingly, some proposals are made for improving the SPAMI system, which include a better allocation of jurisdiction among coastal States in the case of transboundary MPAs. It is argued that in a delicate phase of transition, characterized by the proclamation of EEZs and the ensuing maritime delimitation disputes, the creation of SPAMI may enhance the spirit of cooperation among Mediterranean States with opposite or adjacent coasts and possibly represent an alternative to the definition of a precise maritime boundary. Most notably, the creation of transboundary SPAMIs appears worth further exploration in the context of the negotiations aimed at defining the boundaries of the Italian EEZ.
The Chapter deals with some selected issues concerning the responsibility of the European Union a... more The Chapter deals with some selected issues concerning the responsibility of the European Union and/or of its Member States, for human rights infringements in connection with the conduct of the EPPO. Firstly, it discusses the impact of EPPO activities on the fundamental rights of the persons involved in the proceedings and the application of the EU Charter of Fundamental Rights. Secondly, it tackles some criticalities posed by the judicial review of EPPO decisions. Lastly, it inquiries into the attribution of the conduct of European Delegated Prosecutors and of the State enforcement agents acting under their direction or supervision. The outlined model for the allocation of responsibility is also applied to human rights violations connected to recourse to diversion, restorative and mediation procedures.
in M. Andenas, L. Pantaleo, M. Happold and C. Contartese (Eds.), Asser Press, The Hague, 2020, pp. 281-321, 2020
This chapter tackles some aspects of the international responsibility of
2 the European Union and... more This chapter tackles some aspects of the international responsibility of 2 the European Union and of its member States in the field of international investment law. Its main aim is assessing whether EU Investment Agreements are contributing to the emergence in this policy field of a lex specialis under themeaning of Article 64 of the DARIO, concerning the responsibility of the Union. Post-Lisbon Investment Agreements do not contain a clause on the attribution of conduct or responsibility. They just provide for a procedural mechanism empowering the Union to determine “in-house” who—between the Union and the concerned member State—should act as the sole respondent after a specific dispute has arisen. The author examines the connection existing between the identification of the respondent and allocation of international responsibility, by also discussing the apportionment model uphold by Regulation (EU) No 912/2014. He concludes that EU Investment Agreements are unlikely to contribute to the consolidation of a rule of responsibility applicable to the EU and derogating from the rules applicable to the generality of international organizations.
Over the last few decades, the World Health Organization (WHO) has played a significant role in t... more Over the last few decades, the World Health Organization (WHO) has played a significant role in the prevention and control of new strains of influenza virus in the human population. Beginning in the 1950s, it has coordinated a network of WHO-linked laboratories, charged with monitoring the changes in influenza viruses and favouring the timely sharing of virus samples, which is necessary for the development and production of vaccines. In December 2006, the said system was brought into question by Indonesia, according to which it was unfair and in conflict with the principle of state sovereignty over biological and genetic resources. Although very controversial, the Indonesian decision to interrupt the supply of candidate influenza vaccine strains boosted intergovernmental negotiation, until then not achieved, aimed at establishing a new WHO framework. This article examines the outcome of such a negotiation, as well as the aspects of the framework still under discussion. It emphasizes the innovative nature of the proposed benefit-sharing mechanism, which would promote access to vaccines mainly through the multilateralization of intellectual property rights governance. Similarities and differences between the envisaged framework and the benefit-sharing mechanism established by the Food and Agricultural Organization International Treaty on Plant Genetic Resources for Food and Agriculture in the field of access to plant genetic resources are analysed.
SOMMARIO. 1. Obiettivi e piano dell'indagine.-2. Clausole di deroga nei trattati sui diritti uman... more SOMMARIO. 1. Obiettivi e piano dell'indagine.-2. Clausole di deroga nei trattati sui diritti umani: l'articolo 15 della CEDU.-3. (Segue) Necessità delle misure in deroga-4. Rilievo delle dichiarazioni di deroga ex articolo 15 della CEDU ai fini della portata degli obblighi posti dalla Carta dei diritti fondamentali.-5. (Segue) Indicazioni desumibili dalla giurisprudenza della Corte di giustizia.-6. Non sospendibilità della Carta in applicazione delle norme internazionali sul diritto dei trattati.-7. Possibile rilievo della forza maggiore e dello stato di necessità quale causa di esclusione dell'illecito dello Stato.-8. (Segue) Efficacia diretta verticale e orizzontale della Carta.-9. Limitazioni ordinarie previste dall'art. 52, par. 1, della Carta e ruolo del diritto derivato negli stati di emergenza.-10. Considerazioni conclusive.
− Though widely used in international law literature, « autonomy » is not a term of art having a ... more − Though widely used in international law literature, « autonomy » is not a term of art having a commonly agreed meaning. Particularly ambiguous is the concept of « autonomous legal order », which is employed to qualify the internal legal orders of international organizations by scholars who have opposite views concerning the original or derivative nature of such orders. This article deals with the « autonomy » of EU law, a concept which was initially laid by the Court of Justice to afrm the primacy of Community law over domestic law and to guarantee its uniform application in all Member States. Subsequently, the same concept has been utilized by the Court of Justice to indicate autonomy from international law: in this second meaning, it protects the core identity values and principles of EU law and has evolved in parallel with the process of «constitutionalisation » of the EU. The preservation of the autonomy of the EU legal order, in both its « internal » and « external » dimension, has been intended as closely linked to the defense of the prerogatives of the Court of Justice. The paper tackles the evolution of the relevant case-law, from Costa v. Enel to Kadi, by paying special attention to the role played by human rights in the construction of the EU identity. It emphasizes that Opinion 2/13 has marked a reconguration of the concept of « autonomy », by exacerbating the distrust of the Court of Justice in external judicial review and accentuating the « European Exceptionalism », whereby the EU tends to require a special treatment compared to the one accorded to other international organizations
This chapter investigates the direct effects of the Charter of Fundamental Rights of the European... more This chapter investigates the direct effects of the Charter of Fundamental Rights of the European Union in the light of the CJEU’s case-law. The recent judgments on paid annual leave (Bauer, Max-Planck, and Kreuziger) have represented a significant step forward in the implementation of the Charter, in that, for the first time, the CJEU has ascribed horizontal effect to a provision contained in the Charter’s Solidarity chapter. However, this jurisprudence raises many questions as concerns the distinction between “rights” and “principles” under Article 52(5) of the Charter. Related to this is the question whether the normative content of the Charter’s provisions may be enriched through incorporation of implementing directives. In this connection, the author argues that the provisions of secondary law should rather be considered for the purposes of the proportionality assessment under Article 52(1) of the Charter. It finally discusses some (still largely unaddressed by the CJEU) challenges relating to the Drittwirkung of the Charter and of general principles of EU law. The chapter underlines the redistributive effects of horizontality, as well as some conceptual problems
from the perspective of legal certainty.
This chapter deals with the international protection and promotion of indigenous traditional know... more This chapter deals with the international protection and promotion of indigenous traditional knowledge (TK) associated with agriculture, with a special focus on biodiversity-related knowledge. Interest in this knowledge has intensified greatly over the past two decades, along with a growing awareness of the contribution it can make, in a time of climate and environmental change, towards developing more sustainable models of agriculture and contrasting the erosion of both biodiversity and cultural diversity. The chapter analyzes the international legal framework for TK protection, as well as current international efforts to develop sui generis protection systems that are culturally more appropriate and capable of valorizing the collective and intergenerational nature of TK. In this context, the protection of indigenous TK is put against the backdrop of the protection of TK hold by rural communities of peasants, shepherds, and fishermen. The chapter finally investigates the role of intellectual property in preserving indigenous peoples’ TK and promoting their economic empowerment. More precisely, attention is paid to the question as to whether TK falls within the boundaries of protected property under international human rights law.
Since 1993, the World Bank has created the Inspection Panel, an independent complaints mechanism ... more Since 1993, the World Bank has created the Inspection Panel, an independent complaints mechanism for people and communities who believe that they have been, or are likely to be, adversely affected by projects financed by the Bank in violation of its own internal rules. This accountability mechanism was significantly revised in 2020. Pursuant to the revised version, before being examined by the Panel, disputes may be resolved after recourse to mediation, with the conclusion of an agreement between the authorities of the territorial State and the project-affected communities. For the first time following the 2020 reform, the mediation procedure has been activated in a case brought to the attention of the Panel by a group of persons living in Kampala (Uganda), near the Lubigi Drainage Channel. They argued that, by financing the widening of this channel, the World Bank was infringing upon its Operational Policies on Forced Evictions, Environmental Assessment, and Physical Cultural Resources. The paper examines the new mediation system in the light of its first application, highlighting its effectiveness and, at the same time, its most problematic aspects.
Per quanto l’Unione Europea si ponga come apripista nell’attuazione di politiche di mitigazione e... more Per quanto l’Unione Europea si ponga come apripista nell’attuazione di politiche di mitigazione e di adattamento, il contributo della Corte di Lussemburgo alla giustizia climatica appare piuttosto deludente. La prima parte del presente contributo evidenzia le ragioni di ordine procedurale che ostacolano l’accesso alla giustizia climatica di fronte alla Corte di Lussemburgo, per poi mettere in luce come la tutela ambientale venga prevalentemente in rilievo nel diritto dell’Unione come interesse collettivo, senza che si sia affermato un diritto individuale all’ambiente salubre. La seconda parte si sofferma invece su alcuni recenti arresti giurisprudenziali e su possibili sviluppi normativi, orientati nel senso di un ampliamento dell’accesso alla giustizia ambientale e climatica davanti ai giudici degli Stati membri.
This paper tackles legal and policy issues concerning Marine Protected Areas (MPAs) in the Medite... more This paper tackles legal and policy issues concerning Marine Protected Areas (MPAs) in the Mediterranean Sea. Since the 1970s, Mediterranean Countries have been at the forefront in international cooperation for the protection of marine ecosystems: notably, significant results have been achieved through the establishment of a network of Specially Protected Areas of Mediterranean Interest (SPAMIs). After framing the general legal context, the paper examines the specificities of the above network, while at the same time pointing out its weakness when put to the test of facts. Accordingly, some proposals are made for improving the SPAMI system, which include a better allocation of jurisdiction among coastal States in the case of transboundary MPAs. It is argued that in a delicate phase of transition, characterized by the proclamation of EEZs and the ensuing maritime delimitation disputes, the creation of SPAMI may enhance the spirit of cooperation among Mediterranean States with opposite or adjacent coasts and possibly represent an alternative to the definition of a precise maritime boundary. Most notably, the creation of transboundary SPAMIs appears worth further exploration in the context of the negotiations aimed at defining the boundaries of the Italian EEZ.
The Chapter deals with some selected issues concerning the responsibility of the European Union a... more The Chapter deals with some selected issues concerning the responsibility of the European Union and/or of its Member States, for human rights infringements in connection with the conduct of the EPPO. Firstly, it discusses the impact of EPPO activities on the fundamental rights of the persons involved in the proceedings and the application of the EU Charter of Fundamental Rights. Secondly, it tackles some criticalities posed by the judicial review of EPPO decisions. Lastly, it inquiries into the attribution of the conduct of European Delegated Prosecutors and of the State enforcement agents acting under their direction or supervision. The outlined model for the allocation of responsibility is also applied to human rights violations connected to recourse to diversion, restorative and mediation procedures.
in M. Andenas, L. Pantaleo, M. Happold and C. Contartese (Eds.), Asser Press, The Hague, 2020, pp. 281-321, 2020
This chapter tackles some aspects of the international responsibility of
2 the European Union and... more This chapter tackles some aspects of the international responsibility of 2 the European Union and of its member States in the field of international investment law. Its main aim is assessing whether EU Investment Agreements are contributing to the emergence in this policy field of a lex specialis under themeaning of Article 64 of the DARIO, concerning the responsibility of the Union. Post-Lisbon Investment Agreements do not contain a clause on the attribution of conduct or responsibility. They just provide for a procedural mechanism empowering the Union to determine “in-house” who—between the Union and the concerned member State—should act as the sole respondent after a specific dispute has arisen. The author examines the connection existing between the identification of the respondent and allocation of international responsibility, by also discussing the apportionment model uphold by Regulation (EU) No 912/2014. He concludes that EU Investment Agreements are unlikely to contribute to the consolidation of a rule of responsibility applicable to the EU and derogating from the rules applicable to the generality of international organizations.
Over the last few decades, the World Health Organization (WHO) has played a significant role in t... more Over the last few decades, the World Health Organization (WHO) has played a significant role in the prevention and control of new strains of influenza virus in the human population. Beginning in the 1950s, it has coordinated a network of WHO-linked laboratories, charged with monitoring the changes in influenza viruses and favouring the timely sharing of virus samples, which is necessary for the development and production of vaccines. In December 2006, the said system was brought into question by Indonesia, according to which it was unfair and in conflict with the principle of state sovereignty over biological and genetic resources. Although very controversial, the Indonesian decision to interrupt the supply of candidate influenza vaccine strains boosted intergovernmental negotiation, until then not achieved, aimed at establishing a new WHO framework. This article examines the outcome of such a negotiation, as well as the aspects of the framework still under discussion. It emphasizes the innovative nature of the proposed benefit-sharing mechanism, which would promote access to vaccines mainly through the multilateralization of intellectual property rights governance. Similarities and differences between the envisaged framework and the benefit-sharing mechanism established by the Food and Agricultural Organization International Treaty on Plant Genetic Resources for Food and Agriculture in the field of access to plant genetic resources are analysed.
SOMMARIO. 1. Obiettivi e piano dell'indagine.-2. Clausole di deroga nei trattati sui diritti uman... more SOMMARIO. 1. Obiettivi e piano dell'indagine.-2. Clausole di deroga nei trattati sui diritti umani: l'articolo 15 della CEDU.-3. (Segue) Necessità delle misure in deroga-4. Rilievo delle dichiarazioni di deroga ex articolo 15 della CEDU ai fini della portata degli obblighi posti dalla Carta dei diritti fondamentali.-5. (Segue) Indicazioni desumibili dalla giurisprudenza della Corte di giustizia.-6. Non sospendibilità della Carta in applicazione delle norme internazionali sul diritto dei trattati.-7. Possibile rilievo della forza maggiore e dello stato di necessità quale causa di esclusione dell'illecito dello Stato.-8. (Segue) Efficacia diretta verticale e orizzontale della Carta.-9. Limitazioni ordinarie previste dall'art. 52, par. 1, della Carta e ruolo del diritto derivato negli stati di emergenza.-10. Considerazioni conclusive.
− Though widely used in international law literature, « autonomy » is not a term of art having a ... more − Though widely used in international law literature, « autonomy » is not a term of art having a commonly agreed meaning. Particularly ambiguous is the concept of « autonomous legal order », which is employed to qualify the internal legal orders of international organizations by scholars who have opposite views concerning the original or derivative nature of such orders. This article deals with the « autonomy » of EU law, a concept which was initially laid by the Court of Justice to afrm the primacy of Community law over domestic law and to guarantee its uniform application in all Member States. Subsequently, the same concept has been utilized by the Court of Justice to indicate autonomy from international law: in this second meaning, it protects the core identity values and principles of EU law and has evolved in parallel with the process of «constitutionalisation » of the EU. The preservation of the autonomy of the EU legal order, in both its « internal » and « external » dimension, has been intended as closely linked to the defense of the prerogatives of the Court of Justice. The paper tackles the evolution of the relevant case-law, from Costa v. Enel to Kadi, by paying special attention to the role played by human rights in the construction of the EU identity. It emphasizes that Opinion 2/13 has marked a reconguration of the concept of « autonomy », by exacerbating the distrust of the Court of Justice in external judicial review and accentuating the « European Exceptionalism », whereby the EU tends to require a special treatment compared to the one accorded to other international organizations
This chapter investigates the direct effects of the Charter of Fundamental Rights of the European... more This chapter investigates the direct effects of the Charter of Fundamental Rights of the European Union in the light of the CJEU’s case-law. The recent judgments on paid annual leave (Bauer, Max-Planck, and Kreuziger) have represented a significant step forward in the implementation of the Charter, in that, for the first time, the CJEU has ascribed horizontal effect to a provision contained in the Charter’s Solidarity chapter. However, this jurisprudence raises many questions as concerns the distinction between “rights” and “principles” under Article 52(5) of the Charter. Related to this is the question whether the normative content of the Charter’s provisions may be enriched through incorporation of implementing directives. In this connection, the author argues that the provisions of secondary law should rather be considered for the purposes of the proportionality assessment under Article 52(1) of the Charter. It finally discusses some (still largely unaddressed by the CJEU) challenges relating to the Drittwirkung of the Charter and of general principles of EU law. The chapter underlines the redistributive effects of horizontality, as well as some conceptual problems
from the perspective of legal certainty.
This chapter deals with the international protection and promotion of indigenous traditional know... more This chapter deals with the international protection and promotion of indigenous traditional knowledge (TK) associated with agriculture, with a special focus on biodiversity-related knowledge. Interest in this knowledge has intensified greatly over the past two decades, along with a growing awareness of the contribution it can make, in a time of climate and environmental change, towards developing more sustainable models of agriculture and contrasting the erosion of both biodiversity and cultural diversity. The chapter analyzes the international legal framework for TK protection, as well as current international efforts to develop sui generis protection systems that are culturally more appropriate and capable of valorizing the collective and intergenerational nature of TK. In this context, the protection of indigenous TK is put against the backdrop of the protection of TK hold by rural communities of peasants, shepherds, and fishermen. The chapter finally investigates the role of intellectual property in preserving indigenous peoples’ TK and promoting their economic empowerment. More precisely, attention is paid to the question as to whether TK falls within the boundaries of protected property under international human rights law.
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full text available at: https://www.federalismi.it/nv14/articolo-documento.cfm?Artid=49759&edoc=&tit=Il%20nuovo%20meccanismo%20di%20accountability%20della%20Banca%20mondiale%20alla%20prova%20dei%20fatti:%20il%20caso%20del%20Canale%20Lubigi
2 the European Union and of its member States in the field of international investment law. Its main aim is assessing whether EU Investment Agreements are contributing to the emergence in this policy field of a lex specialis under themeaning of Article 64 of the DARIO, concerning the responsibility of the Union. Post-Lisbon Investment
Agreements do not contain a clause on the attribution of conduct or responsibility. They just provide for a procedural mechanism empowering the Union to determine “in-house” who—between the Union and the concerned member State—should act as the sole respondent after a specific dispute has arisen. The author examines the connection existing between the identification of the respondent and allocation of
international responsibility, by also discussing the apportionment model uphold by Regulation (EU) No 912/2014. He concludes that EU Investment Agreements are unlikely to contribute to the consolidation of a rule of responsibility applicable to the EU and derogating from the rules applicable to the generality of international organizations.
from the perspective of legal certainty.
THE VOLUME IS FREELY AVAILABLE AT www.aisdue.eu/temi-e-questioni-di-diritto-dellunione-europea
biodiversity and cultural diversity. The chapter analyzes the international legal framework for TK protection, as well as current international efforts to develop sui generis protection systems that are culturally more appropriate and capable of valorizing the collective and intergenerational nature of TK. In this context, the protection of indigenous TK is put against the backdrop of the protection of TK hold by rural communities of peasants, shepherds, and fishermen. The chapter finally investigates the role of intellectual property in preserving indigenous peoples’ TK and promoting their economic empowerment. More precisely, attention is paid to the question as to whether TK falls within the boundaries of
protected property under international human rights law.
full text available at: https://www.federalismi.it/nv14/articolo-documento.cfm?Artid=49759&edoc=&tit=Il%20nuovo%20meccanismo%20di%20accountability%20della%20Banca%20mondiale%20alla%20prova%20dei%20fatti:%20il%20caso%20del%20Canale%20Lubigi
2 the European Union and of its member States in the field of international investment law. Its main aim is assessing whether EU Investment Agreements are contributing to the emergence in this policy field of a lex specialis under themeaning of Article 64 of the DARIO, concerning the responsibility of the Union. Post-Lisbon Investment
Agreements do not contain a clause on the attribution of conduct or responsibility. They just provide for a procedural mechanism empowering the Union to determine “in-house” who—between the Union and the concerned member State—should act as the sole respondent after a specific dispute has arisen. The author examines the connection existing between the identification of the respondent and allocation of
international responsibility, by also discussing the apportionment model uphold by Regulation (EU) No 912/2014. He concludes that EU Investment Agreements are unlikely to contribute to the consolidation of a rule of responsibility applicable to the EU and derogating from the rules applicable to the generality of international organizations.
from the perspective of legal certainty.
THE VOLUME IS FREELY AVAILABLE AT www.aisdue.eu/temi-e-questioni-di-diritto-dellunione-europea
biodiversity and cultural diversity. The chapter analyzes the international legal framework for TK protection, as well as current international efforts to develop sui generis protection systems that are culturally more appropriate and capable of valorizing the collective and intergenerational nature of TK. In this context, the protection of indigenous TK is put against the backdrop of the protection of TK hold by rural communities of peasants, shepherds, and fishermen. The chapter finally investigates the role of intellectual property in preserving indigenous peoples’ TK and promoting their economic empowerment. More precisely, attention is paid to the question as to whether TK falls within the boundaries of
protected property under international human rights law.