Tullio Scovazzi

Marine Protected Areas on the High Seas: Some Legal and Policy Considerations

The 2003 meeting of the United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea made a call to explore a range of tools for the protection and management of vulnerable and threatened marine ecosystems and biodiversity beyond national jurisdiction. To achieve this aim, the establishment of marine protected areas (MPAs) on the high seas not only fully complies with customary international law, but is also the subject-matter of specific obligations arising under a number of treaties (starting from UNCLOS Art. 194, para. 5). Today the time-honoured concept of freedom of the sea is to be understood in the context of the present range of marine activities and in relation to all the potentially conflicting uses and interests, such as the protection of the marine environment and the sound exploitation of marine living resources. The 1995 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean is an interesting precedent on the issue of MPAs on the high seas.

The Struggle against Enforced Disappearance and the 2007 United Nations Convention

Enforced disappearance is one of the most serious human rights violations. It constitutes an autonomous offence and a crime under international law on account of its multiple and continuing character. It is not a phenomenon of the past, nor is it geographically limited to Latin America: such scourge is widespread today and on the increase in other continents. For more than twenty-five years, relatives of disappeared people worldwide have insisted on the pressing need for an international legally binding instrument against enforced disappearances. 2006 is the year of the adoption of the International Convention on the Protection of All Persons from Enforced Disappearances, which represents the result of several legislative and jurisprudential developments that are duly analyzed in this book. The Convention has been opened for signature in February 2007.

Mining, Protection of the Environment, Scientific Research and Bioprospecting: some Considerations on the Role of the International Sea-bed Authority

The innovative concept of the common heritage of mankind is embodied in the 1982 LOSC for the seabed beyond the limits of national jurisdiction (the Area). It has been subsequently adapted to meet further political and economic realities. Despite the present uncertain situation, the mandate of the International Seabed Authority (ISBA) is already broader than it is commonly believed. The legal condition of the space (the Area), its being the common heritage of mankind, may have an effect also on matters and activities that (though different from minerals and mining activities) are located in that space. While bioprospecting is not specifically regulated by the UNCLOS, there is an inextricable factual link between the protection of the deep seabed environment (including its biodiversity), marine scientific research and bioprospecting. the ISBA, the principles that it represents, as well as its existing competences and responsibilities, need to be taken into consideration when States decide to fill the legal gap of bioprospecting. The role of the ISBA could be expanded in the future to meet new objectives under commonly agreed cooperative schemes.

Intangible Cultural Heritage as Defined in the 2003 UNESCO Convention

According to the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, the essential components of such heritage are a manifestation (objective component), a community of people (subjective or social component) and a cultural space (spatial component). The heritage can be manifested in the domains of oral traditions and expressions including language, performing arts, social practices, rituals and festive events, knowledge and practices concerning nature and the universe, and traditional craftsmanship. The social component of heritage, that is, the communities, groups and individuals who share it, is linked to a number of questions, such as the identification of the community of practitioners or the transmission and recreation of heritage, as well as the commercialisation, modernisation and revitalisation of it. The cultural space must be intended more for social practices than for its geographical character. The Convention clearly states that its scope of application does not cover the manifestations of heritage that are incompatible with existing international human rights instruments or with the requirements of mutual respect among communities, groups and individuals and of sustainable development.

Legal aspects of the Axum obelisk case

Abstract In 1937 the 1,700‐year‐old Axum obelisk was removed from the town of Axum in Ethiopia, following the annexation of the country by Italy. The obelisk was broken into five fragments, transported to Rome and re‐erected in front of the Ministry of Colonies. In April 2005, despite three previous treaty engagements (1947, 1956 and 1997), Italy finally complied with its obligation to return the obelisk to Axum. In 2008 it was re‐erected at its original site. The story of the return of the obelisk can be seen as a precedent in the current process of formation of new principles of international law in the field of cultural heritage: namely, the principle of non‐impoverishment of the cultural heritage of states of origin, the principle of non‐exploitation of the weakness of other countries to obtain cultural gain and the principle of preservation of the integrity of cultural sites.

Sunken Spanish Ships before American Courts

Decisions by American courts on sunken Spanish ships have followed different approaches. Some have applied the so-called admiralty law and granted ownership rights to the finder. Others have assimilated wrecks to natural resources of the continental shelf, thereby falling under the sovereign rights of the coastal State. Others have found that Spain retains title over Spanish galleons that are to be considered as State-owned ships. Others have declined jurisdiction because of the immunity of Spain before American courts. What all decisions have in common is that they show how inappropriate it would be to apply admiralty law (salvage law and law of finds) to sunken wrecks and their cargo. It would correspond to the triumph of the first-come-first-served principle (or the freedom-of-fishing principle) for the benefit of commercial gain, without any care for the preservation of the heritage and the position of States which have a special link with it.

Where the Judge Approaches the Legislator: Some Cases Relating to Law of the Sea

International courts may play an important role in the process of creating new rules of international law, including the law of the sea. In the 1951 Fisheries judgment the I.C.J. found that the straight baselines system established by Norway in 1935 for the first time in State practice was not contrary to international law. The key words of the judgment are reflected in the relevant provisions of the 1958 Geneva Convention on the Territorial Sea and the 1982 UNCLOS. However, in the 1974 Fisheries Jurisdiction judgments, where the question at stake was the limit of coastal States’ jurisdiction concerning fisheries, the ICJ preferred conservation to innovation, concluding that the extension of the exclusive fishing rights of Iceland to 50 n.m. could not be opposed by the United Kingdom and Germany. The 1974 judgments were superseded within a short time by the State practice of adopting a 200- mile exclusive economic zone. In the field of maritime boundaries, courts are currently providing a decisive contribution to a more precise determination of the relevant rules of customary international law. The 2011 ITLOS Seabed Chamber advisory opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area includes a number of findings which lead to the progressive development of customary rules relating to the protection of the marine environment.

The 2007 Convention and Its Main Legal Issues

This chapter analyzes the legal issues discussed in the process of the drafting of the 2007 Convention. The importance of the human right not to be subjected to enforced disappearance is strengthened by the recent finding of the Interamerican Court of Human Rights. The 1998 Rome Statute qualified “enforced disappearances” as crimes against humanity when committed as a part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Under customary international law, crimes against humanity are imprescriptible. The recognition of the continuous nature of enforced disappearance comes from the very nature of the offence, in particular from the denial by the State to disclose what happened to the victim. Article 35 of the 2007 Convention provides that the Committee on Enforced Disappearances shall have competence solely with regard to enforced disappearances which commenced after its entry into force.Keywords: 2007 Convention; crimes against humanity; customary international law; domestic criminal law; enforced disappearance; Interamerican Court of Human Rights; Rome Statute

Text of the Convention for the Protection of All Persons from Enforced Disappearance

The States Parties to the International Convention for the Protection of All Persons from Enforced Disappearance considers the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and fundamental freedoms. The States parties consider the Universal Declaration of Human Rights, recalling the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and other relevant international instruments in the fields of human rights, humanitarian law and international criminal law.Keywords: enforced disappearance; human rights; international criminal law; international humanitarian law; United Nations

Overview of International Case Law on Enforced Disappearance

The Human Rights Committee, established under 1966 International Covenant on Civil and Political Rights expressed its views under Article 5 of the Optional Protocol on a number of cases relating to enforced disappearances occurred in Latin American. The Interamerican Court of Human Rights is the international body which provided significant contribution towards the development of substantive and procedural rules on the matter of enforced disappearance. The respondent State in the first case of enforced disappearance, ruled in 1998 by the European Court of Human Rights, was Turkey. The Human Rights Chamber for Bosnia and Herzegovina analyzed the case also under the profile of a possible violation of Article 14 of the European Convention. Finally, the chapter provides conclusive remarks on international case law as pointed out by Mr. Nowak in his 2002 report on the international criminal and human rights framework for the protection of persons from involuntary disappearances.Keywords: Bosnia and Herzegovina; European Court; Human Rights Chamber; Interamerican Court; International Case Law on Enforced Disappearance; Turkey