ITALIAN ACCEPTANCE OF THE OPTIONAL CLAUSES OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

in The Italian Yearbook of International Law Online
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ITALIAN ACCEPTANCE OF THE OPTIONAL CLAUSES OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

in The Italian Yearbook of International Law Online

References

1 The two declarations read: " I have the honour to declare in accordance with the provisions of Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, that the Italian Government recognises for the period beginning on i August 1973, and ending on 31 July 1975, the competence of the European Com- mission of Human Rights to receive petitions submitted to the Secretary-General of the Council of Europe subsequently to 31 July 1973, by any person, non-governmental organization or group of individuals claiming, in relation to an act or decision occurring or any facts or events arising subsequently to this date, to be the victim of a violation of the rights set forth in that Convention '; " I have the honour to declare in accordance with the provisions of Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, that the Italian Government recognises, for the period beginning on i August 1973 and ending on 31 July 1975, the jurisdiction of the European Court of Human Rights as compulsory ipso facto and without special agreement, on condition of reciprocity, in all matters arising subsequently to 31 July 1973, concerning the interpretation and application of that Convention " 2 As is well-known, the Italian ratification of the Convention was deposited on October 26, 1955. For the official reasons given by the Italian Government for not accepting the optional clauses prior to 1973, see RorrzrTTr, " L'accettazione della Conven- zione europea dei diritti dell'uomo e delle sue clausole facoltative da parte degli Stati membri del Consiglio d'Europa ", Rivista (1967), PP. 357 ff., esp. pp. 363 ff., and L'Italia e l'anno internazionale dei diritti dell'Uomo (Publications of the Italian Society for International Organization), Padova, 1969, pp. 138 ff. at pp. 144 ff. See also R.D.I.P.P. (1969), pp. 873 ff.

3 According to articles 25 and 46 of the Convention, the Commission and the Court's competence derives directly from the declaration, independently from other States' consent. 4 It is interesting to recall that the Italian declaration of acceptance of the P.C.LJ.'s ' compulsory' jurisdiction, dated September 9, 1929 - clearly a precedent of the declara- tions in question - was approved by Parliament (Law of June 1, 1931, n. 743). On the contrary, the declaration of May 19, 1953, which entitled Italy to apply to the International Court of Justice (pursuant to art. 35 par. 2 of the LC.J.'s Statute and to the U.N. Security Council's resolution of October 15, 1946) in the course of the proceedings on the

case of the Monetary Gold Removed from Rome in r943, was signed by the diplomatic representative of the Italian Republic in the Netherlands. The need for acts such as the declaration of acceptance of the LC.J.'s compulsory ' jurisdiction to be authorized by Parliament is underlined by PERASSI, " La Costituzione italiana e il diritto inernazionale" (i9gz), in Scritti giudirici, Milano, 1958, vol. I, pp. 417 ff. at p. 423. 5 On this point VASAK, " Le controle parlementaire des actes de 1'ex6cutif concernant la ratification de la Convention et 1'acceptation de ses clauses facultatives ", in La protection internationale des droits de l'homnae dans le cadre europeen, Paris, 1961, pp. 321 ff. at p. 325. In the present connection it is also useful to recall the constitutional practice concerning the agreements " in simplified form" (in forma semplificata) which was referred to even in some recent judicial decisions: Italian Court of Cassation, March 22, 1972, n. 867, and April 17, 1972, n. 1196, in R.D.LP.P. (1974), pp. 69 ff. and 75 ff. respectively. 6 The same time-limit was, however, also attached to the Belgian declarations, as from 1965, and to the U.K.'s declarations, as from 1972. It is worth mentioning that the Italian acceptance of the `compulsory' jurisdiction of the P.C.I.J. quoted at note 4 above, had a 5-year time-limit.

7 This principle was reaffirmed by the LC.J. in its judgments of November 18, 1953, Nottebohm Case (preliminary objection) and November 26, 1957, Case concerning Right of Passage over Indian Territory (preliminary objections), LC.J. Reports (1953), p. 123 and (1957), P- 142. Because of the different nature of the proceedings before the Commission and the Court, the principle of perpetuatio jurisdictionis can hardly be invoked in order to maintain the latter's competence regarding a case pending before the former at the moment when the time-limit expires. 8 These declarations have been renewed several times - lately in letters of January 3, 1974 until January 13, 1976. 9 For this view, among many, EISSEN, " Jurisprudence de la Commission europeenne des droits de 1'homme. Decisions en matiere de competence ratione temporis ", Annuaire Yranqais (1963), pp. 722 ff. at p. 724; SORENSEN, "Le probleme inter-temporel dans 1'application de la Convention europeenne des droits de 1'homme ", in Melanges offerts a Polys Modinos, Paris, 1968, pp. 304 ff., esp. p. 318, who relies on the Commission's precedents. See also CASTBERG, The European Convention on Human Rights, Leyden-Dobbs Ferrv. 1<)7L1. pp. 37 f. io Reference to articles 25 par. 2 and 46 par. 2 is advocated by EISSEN, op. loc. cit.; ID., " Le limitazioni ratione temporis nelle dichiarazioni di accettazione della com- petenza della Commissione rispetto ai ricorsi individuali ", Rivista (1974), pp. 536 ff. at pp. 538 f.; ID., Intervention, in Les clauses facultatives de la Convention europeenne

des droits de I'homme (Quaderno n. 3 degli Annali della Facolta di giurisprudenza del- 1'Universita di Bari), Bari, 1974, p. 279. Reference to art. 25 par. 2 is also made by MANZARI, Intervention, ivi, pp. 206 ff. m Contra GIULIVA, " La competence de la Commission europeenne des droits de 1'homme en matiere de requetes individuelles et ses limitations ratione temporis dans la declaration italienne d'acceptation du droit de recours individuel ", in Les clauses facultatives, cit., pp. 107 ff., esp. pp. 112 ff.; support for this view in Vnsnx, Intervention, ibid., pp. 215 f. In favour of the reservation's admissibility cf. - in addition to Eissen and Manzari quoted at note 10 above - SACERDOTI, " Epuisement prealable des recours internes et reserves ratione temporis dans la declaration italienne d'acceptation du droit de requete indivi- duelle ", ibid., pp. 134 ff., at pp. 135 and 145 (yet this author does not go deep into the matter). 12 S0RENSEN, op. cit., pp. 318 f. For a survey of the Commission's attitude towards the reservation ratione temporis attached to the U.K.'s declaration, EisSEN, " Les reserves ratione temporis a la reconnaissance du droit de recours individuel ", in Les clauses facul- tatives, cit., pp. 85 ff. at pp. 90 f.; In., Le limitazioni ratione temporis, cit., pp. 50 ff. '3 This view was already expressed in relation to several kinds of limitations inherent in declarations of acceptance of the Court's ' ` compulsory ' jurisdiction; see the present writer's " La juridiction obligatoire' de la Cour europeenne des droits de 1'homme ", in Les clauses facultatives, cit., pp. 225 ff. at pp. 248 ff.

14 On the practice of introducing reservations in the declarations accepting the ' com- pulsory ' jurisdiction of the LC.J. (as, previously, of the P.C.LJ.), refer to the present writer's La competenza della Corte ireternazionale di giustizia in materia contenziosa, Napoli, 1970, pp. 107 ff. On the analogy between the declarations of acceptance of the Court's I compulsory ' jurisdiction and those of acceptance of the LC.J.'s compulsory ' jurisdiction, see the present writer's " La juridiction obligatoire ' de la Cour europeenne ", cit., passing. Further ground for considering the reservation in question admissible may be found in so far as the reservation is not even implicitly prohibited by the Convention and is consistent with its object and purpose, according to art. 19 of the r969 Vienna Convention on the law of treaties. For some doubts, however, on the weight of this argument, EisSEN, " Le limitazioni ratione temporis ", cit., p. 539. On this point see also BONIFAZI, " La disci- plina delle riserve alia Convenzione europea dei diritti dell'uomo ", in Les clauses f aculta- tives, cit., pp. 301 ff. esp. pp. 306 ff. ls The reservation examined does not read in the same way in the two declarations. Yet by the different wording - to be found also in the U.K.'s declarations of January 14, 1966 - the Italian Government certainly did not mean a different scope: more likely it simply adhered to the different formulation of art. 25 par. i and art. 46 par. i of the Convention. 16 Also for problems which have arisen in practice on the subject, S0RENSEN, op. cit., pp. 305 ff (and writers cited there). On similar problems faced by the Commission in relation to the reservation ratione temporis attached to the U.K.'s declaration, see EISSEN quoted at note 12 above.

17 SACERDOTI, Op. cit., pp. 135 ff. 18 Sacerdoti's opinion, according to which the State could limit ratione temporis the competence of the Commission only with respect to the violation of rights recognised by the Convention, and not with respect to the conduct giving rise to the violation, is un- acceptable, in so far as no argument is given for it (op. cit., p. 138). '9 Sacerdoti takes the opposite view that final judicial decisions subsequent to 31 July 1973 are outside the Commission's competence " sauf danes le cas ou le grief concerne une

decision judiciaire susceptible d'etre reformee par une juridiction superieure dans 1'6puisement des recours internes " (op. cit., p. 145); which sounds, in fact, rather limiting. The present writer's view is apparently shared by EissErr, " Le limitazioni ratione temporis ", cit., pp. 543 f.; MANZARI, Intervention, cit., p. 213, CASSESE A., Considerations finales, in Les clauses facultatives, cit., pp. 217 ff. zo Declarations of Austria, Denmark, Federal Republic of Germany, France, Luxem- bourg, Netherlands, Norway, Sweden, Switzerland and U.K. In some of these, however, the reciprocity clause is worded differently from the Italian one. 21 On the subject see the present writer's " La juridiction obligatoire' de la Cour europeenne ", cit., at pp. 239 ff. zz On this point see op. cit. at the preceding note, pp. 250 ff. z3 As was shown in op. cit. at note 21 above, pp. 252 f., the reciprocity clause, however, can not be presumed to have this scope.

z4 It was probably in view of this that Switzerland set a time-limit to the declaration of November 28, 1974 recognising the individual right of petition, whereas it did not limit in time the declaration of acceptance of the Court's ' compulsory ' jurisdiction issued on the same date.

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