8
“unequivocally directed toward modifying or abrogating the treaty”, he maintains,
one must be very cautious in considering the old agreements to be rescinded. This
is due to a number of considerations, among which was surely the tendency of the
modern international community to favor written law, as well as the increasing
cooperation between States, of which the agreement is the typical legal
instrument.
20
4 Italy, the Mediterranean and the Law of the Sea
Several of the Maestro’s writings are of particular interest as his analysis can be
applied to cases regarding our country and, in more general terms, to the
Mediterranean. An effective example is the 1976 ruling of the Naples’ Tribunale
that was very innovative when it was first pronounced. The ruling stated that repressive action against a ship on the high seas was legitimate because of the uninterrupted link constituted by fast motor boats transporting contraband goods between
the ship and the coast. Conforti approved this solution, viewing it as confirmation of
his theory of functional powers.
21
It is also important to re-read his commentary on the decisions handed down by
the ICJ on the delimitation of the continental shelf between Libya and Malta.
22
In
this controversy Italy also played a role as it had requested to intervene in the case.
Though the petition was declared inadmissible it was important simply to make the
request in order to safeguard Italian interests. Regarding this ruling, Conforti criticizes the ICJ’s recourse to equity, as this was done not subordinately or in a subsidiary capacity but principally, considering such principle as customary law. Since
there were no mandatory and consolidated rules on delimitation, affirmation of the
ICJ with which he agrees, the conclusion could not however be imposed by a judicial ‘praetorian’ decision of the ICJ, which he defines as having become a “commission of delimitation”. In other words, he does not contest the solution but, once
again, the method. Furthermore, his critique also concerns UNCLOS provisions on
the EEZ and continental shelf delimitation, modelled on the case law of the
ICJ. Reference to the agreement in these provisions is useless, he claims, and it is
certainly not what one would expect as a solution by a codification convention,
which should provide the exact rule to be followed in cases where there is no
20 Conforti (1983b), also published in English: Conforti (1980–1981). Other reasons that support
his solution are: the diffidence expressed by a number of countries regarding customary law; the
elimination from the Vienna Convention on the Law of Treaties of any reference to the possibility
of repealing and modifying the international agreement by subsequent custom; formulation of Art.
38 of the Statute of the International Court of Justice that, though it does not establish a hierarchical order, places treaties in the forefront when indicating sources. See Conforti (1983b), p. 5.
21 Tribunal of Naples, Pulos case (ship Olimpios Hermes), Judgment, 17 December 1976. See
Conforti (1977).
22 ICJ, Continental Shelf (Libyan Arab Jarnahiriya v. Malta), Judgment, 3 June 1985.
G. Cataldi
“unequivocally directed toward modifying or abrogating the treaty”, he maintains,
one must be very cautious in considering the old agreements to be rescinded. This
is due to a number of considerations, among which was surely the tendency of the
modern international community to favor written law, as well as the increasing
cooperation between States, of which the agreement is the typical legal
instrument.
20
4 Italy, the Mediterranean and the Law of the Sea
Several of the Maestro’s writings are of particular interest as his analysis can be
applied to cases regarding our country and, in more general terms, to the
Mediterranean. An effective example is the 1976 ruling of the Naples’ Tribunale
that was very innovative when it was first pronounced. The ruling stated that repressive action against a ship on the high seas was legitimate because of the uninterrupted link constituted by fast motor boats transporting contraband goods between
the ship and the coast. Conforti approved this solution, viewing it as confirmation of
his theory of functional powers.
21
It is also important to re-read his commentary on the decisions handed down by
the ICJ on the delimitation of the continental shelf between Libya and Malta.
22
In
this controversy Italy also played a role as it had requested to intervene in the case.
Though the petition was declared inadmissible it was important simply to make the
request in order to safeguard Italian interests. Regarding this ruling, Conforti criticizes the ICJ’s recourse to equity, as this was done not subordinately or in a subsidiary capacity but principally, considering such principle as customary law. Since
there were no mandatory and consolidated rules on delimitation, affirmation of the
ICJ with which he agrees, the conclusion could not however be imposed by a judicial ‘praetorian’ decision of the ICJ, which he defines as having become a “commission of delimitation”. In other words, he does not contest the solution but, once
again, the method. Furthermore, his critique also concerns UNCLOS provisions on
the EEZ and continental shelf delimitation, modelled on the case law of the
ICJ. Reference to the agreement in these provisions is useless, he claims, and it is
certainly not what one would expect as a solution by a codification convention,
which should provide the exact rule to be followed in cases where there is no
20 Conforti (1983b), also published in English: Conforti (1980–1981). Other reasons that support
his solution are: the diffidence expressed by a number of countries regarding customary law; the
elimination from the Vienna Convention on the Law of Treaties of any reference to the possibility
of repealing and modifying the international agreement by subsequent custom; formulation of Art.
38 of the Statute of the International Court of Justice that, though it does not establish a hierarchical order, places treaties in the forefront when indicating sources. See Conforti (1983b), p. 5.
21 Tribunal of Naples, Pulos case (ship Olimpios Hermes), Judgment, 17 December 1976. See
Conforti (1977).
22 ICJ, Continental Shelf (Libyan Arab Jarnahiriya v. Malta), Judgment, 3 June 1985.
G. Cataldi