Thank you, Madame Chair.<\/p>\n
I will address the topics in cluster II by delivering an abridged version of our statement, the complete text of which has been submitted for publication.<\/p>\n
** ** **<\/p>\n
1) I will start by addressing the topic of \u201cImmunity of State officials from foreign criminal jurisdiction<\/strong>\u201d.<\/p>\n As a preliminary remark, Italy would like to commend the Special Rapporteur, Claudio Grossman Guiloff<\/strong>, for the excellent work, including by building upon his predecessor\u2019s achievements.<\/p>\n Draft <\/strong>Article 7<\/strong> is a crucial provision in the system of the Draft Articles, since it establishes whether exceptions and limitations<\/strong> to immunities ratione materiae<\/em> apply for certain crimes under international law.\u00a0 In previous statements before the Sixth Committee, Italy <\/strong>expressed general support<\/strong> for Draft Article 7, without prejudice to the customary rules on immunities ratione personae<\/em>.<\/p>\n Italy is mindful that this provision, given its importance, should be supported by the necessary State practice and opinio juris<\/em><\/strong>, if it aims to reflect the current state of play of customary international law.\u00a0 Should this provision represent instead a possible progressive development<\/strong> of international law, it should be supported by a decisive stance<\/strong> by the Commission, providing for a clear rationale<\/strong> and a persuasive explanation<\/strong> for the existence of this exception to immunity ratione materiae<\/em> and the inclusion or exclusion of crimes under said exception.\u00a0 A considerable number of delegations (and some Members of the Commission) have challenged the content of Article 7.\u00a0 Italy considers that achieving consensus<\/strong> on these matters is essential.<\/strong>\u00a0 We therefore encourage the Commission to give these concerns due consideration<\/strong> in continuing its work on Article 7 and its Commentary.<\/p>\n Secondly, Italy will comment on the proposed texts of Draft Articles 9 and 14.\u00a0 Draft Article 9<\/strong>, paragraph 2, focuses on the moment in time in which the competent authorities should examine<\/strong> the question of immunity, namely \u201cbefore initiating criminal proceedings\u201d and \u201cbefore taking coercive measures\u201d.\u00a0 In Italy\u2019s views, this general terminology may raise doubts, considering different practices<\/strong> within domestic criminal systems as to which moments or actions may substantiate the \u201ccommencement\u201d of criminal proceedings. \u00a0We call on the Commission to further reflect on the matter, so as to work out an alternative wording<\/strong> that may suit the vast array of domestic procedures.<\/p>\n Likewise, with regard to Draft Article 14<\/strong>, Italy has some reservations about the use of terms \u201cbefore initiating criminal proceedings\u201d with reference to the moment when the immunity should be determined<\/strong>.\u00a0 In particular, Italy would welcome the drafting of two different wordings<\/strong> for Draft Articles 9 and 14, in light of their different meanings and scopes<\/strong>.\u00a0 Indeed, while we certainly recognize the importance that the examination of immunity begins at a pre-trial stage, the determination of immunity ratione materiae<\/em> requires a preliminary search for evidence and, under several domestic legal systems, a determination by a judge<\/strong>.\u00a0 Therefore, in Draft Article 14 we recommend the employment of a different expression that could set the time limit<\/strong> for the determination of immunity at a later stage, before the commencement of the trial<\/strong>.\u00a0 Italy acknowledges the Commission\u2019s difficult task of identifying terms and moments that might take into consideration different domestic criminal systems, but we consider this issue to be of primary importance.<\/p>\n Additionally, Italy notes that paragraph 3 in Draft Article 14 involves that, in cases covered by Draft Article 7, the determination of immunity by the forum State should be undertaken by authorities at \u201cappropriate high level\u201d.\u00a0 It should be noted that, in certain legal systems, this assessment is carried out by the judge assigned to the case<\/strong>, and there are no rules allowing such assessments to be entrusted to other \u201chigh-level\u201d judicial or political bodies.\u00a0 Furthermore, the requirement proposed by the Commission does not seem to be reflected in the practice of Member States, which shows that, even for the most serious crimes, decisions on immunity are taken by authorities at all levels<\/strong>.\u00a0 We call on the Commission to reconsider the matter<\/strong>, in order to capture the idea that the competent authority for the determination of the immunity is identified based on the provisions of the relevant domestic legal system.<\/p>\n In commending the Commission for its work on the subject-matter, Italy reiterates the importance for the Commission to clearly indicate which Draft Articles reflect existing customary international law<\/strong> and which constitute progressive development <\/strong>\u2013 the latter being closely linked to the preparation of draft conventions in accordance with article 15 of the ILC Statute.<\/p>\n We look forward to continuing the engagement with the International Law Commission and the Special Rapporteur in their work on this important subject.<\/p>\n We look forward to continuing the engagement with the International Law Commission and the Special Rapporteur in their work on this important subject.<\/p>\n ** **<\/p>\n 2) Madame Chair,<\/p>\n I will now address the topic of \u201cSubsidiary means for the determination of rules of international law<\/strong>\u201d.<\/p>\n We wish to thank the Special Rapporteur, Mr. Charles Chernor Jalloh<\/strong>, and commend his continued work.<\/p>\n Italy takes note<\/strong> of the provisional adoption, by the Drafting Committee, on first reading of the draft conclusions 1 to 13.\u00a0 We positively note the new structure given to the draft conclusions, which now appears to be more functional and to provide further internal consistency.<\/p>\n We wish to refer to our written statement and today we would like to focus our comments on draft conclusion 9<\/strong>, \u201cWeight of teachings\u201d. We support the insertion of such provision, in line with similar draft conclusions 7 and 13.\u00a0 We take note of the challenges<\/strong> reported by the Drafting Committee in setting out additional criteria<\/strong> for the consideration of teachings, beyond those listed in draft conclusion 4.\u00a0 We encourage the Special Rapporteur to provide<\/strong> in the commentary a better understanding<\/strong> of their application to the specific category of teachings.<\/p>\n ** ** *<\/p>\n 3) Madame Chair,<\/p>\n I will now turn to the topic \u201cSettlement of disputes to which international organizations are parties<\/strong>\u201d.<\/p>\n We commend the work of the Special Rapporteur, August Reinisch<\/strong>, and express appreciation for his third report on the matter.\u00a0 As a host country to several international organizations, Italy positively notes the account, offered in the report, of the contribution<\/strong> provided by the Italian judiciary<\/strong>, through its extensive case law, for a better understanding of the core features of the subject in question.\u00a0 We encourage the Special Rapporteur to keep devoting special attention to the practice of host countries<\/strong>, whose approach and stance is particularly relevant in setting the trends and steer developments on the topic.<\/p>\n Madame Chair,<\/p>\n This year\u2019s report offers an interesting account of the practice of international organizations to resort, for their disputes with private parties, to the same means<\/strong> traditionally available to subjects of international law (namely, States and international organizations).\u00a0 However, it is important to consider possible inherent limitations of the said means should the parties not be placed on a fully equal footing.\u00a0 Therefore, we are convinced that means referred to in draft guideline 2, subparagraph c, may be resorted to in disputes with private parties to the extent that two main requirements<\/strong> are met: that the assessment process is fully transparent<\/strong> and that the private party is fully involved<\/strong> in the choice of the means, in full accordance with the principle of freedom of choice that governs their use.<\/p>\n At the same time, Italy reiterates its clear preference for binding means<\/strong> of dispute settlement, to ensure legal certainty and clear recognition of respective rights and obligations.\u00a0 Against this backdrop, we acknowledge the merits of arbitration<\/strong>, including the free choice of arbitrators and the special expertise the latter can bring when matters related to international commercial contracts are called into question.\u00a0 However, given the costs of arbitration, resort to courts<\/strong> may be some time more convenient, for example in disputes with SMEs<\/strong> or for claims of a low to medium value<\/strong>.<\/p>\n Madame Chair,<\/p>\n Italy is well aware of the rationale behind the immunities of international organizations and is fully committed to respecting, as appropriate, the immunities pertaining to organizations based in our country.\u00a0 At the same time, we take note of the report by the Special Rapporteur accounting for the different extents<\/strong> to which Member States may decide to grant immunities to international organizations, based on the<\/strong> relevant treaty<\/strong>.\u00a0 Such diversity may be reflected in draft guideline 9, by adding the wording \u201cas determined by the relevant convention\u201d<\/strong> right after the incipit<\/em> \u201cThe jurisdictional immunity of international organizations [\u2026]\u201d.\u00a0 This would serve to highlight the primacy of the relevant founding treaty, convention on privileges and immunities or host agreement<\/strong> in determining the existence and scope of the jurisdictional immunities of an international organization.<\/p>\n In addition, a second paragraph may be added on the question of the waiver<\/strong> of immunities.\u00a0 In this respect, while reiterating that jurisdictional immunity is an essential tool for the safeguard of international organizations in the independent fulfilling of their institutional goals, more attention should be devoted to cases and circumstances when such immunities should be waived.\u00a0 This may be especially true in cases where, in light of the legal issue or the subject matter at stake, the judicial proceedings clearly do not infringe upon the independent performance<\/strong> of their institutional functions as determined by the\u00a0 constituent treaty.<\/p>\n ** ** **<\/p>\n 4) Madame Chair,<\/p>\n I will now address the topic of \u201cNon-legally binding international agreements<\/strong>\u201d.<\/p>\n Allow me to start by thanking the Special Rapporteur for his second report, discussing the first substantive issue, <\/strong>based on a thorough review of state practice and case law<\/strong>, and a first group of draft conclusions.<\/p>\n We appreciate the different views expressed on terminology<\/strong>, in particular as regards the use of the term \u201cagreement\u201d<\/strong> to name the topic under consideration \u2013 and in the subsequent draft conclusions, accordingly.\u00a0 While concurring with the primacy of the parties\u2019 intention, it is Italy\u2019s firm view that less ambiguous terms<\/strong> should be preferred, in order to draw a clear dividing line<\/strong> between binding and non-binding \u201cinstruments\u201d<\/strong>.\u00a0 We reiterate our call to shift to this latter term, as the work on the topic progresses.\u00a0 Accordingly, we suggest the use of the term \u201cparticipants\u201d<\/strong> to non-binding instruments, rather than the concept of \u201cparties to an agreement\u201d.<\/p>\n As already mentioned, Italy agrees that the intention of the participants<\/strong> involved should be the primary reference<\/strong> to determine the non-binding character of the instrument under consideration, on a case-by-case approach<\/strong>.\u00a0 No other factor should be able to override such intention when it is clearly stated, or when it can be clearly inferred.\u00a0 As for other indicators that may support such determination, the avoidance of terminology usually employed implying a commitment (such as \u201cshall\u201d or \u201center into force\u201d, to name a few) and the form of final clauses usually play a decisive role.\u00a0 At the same time, a specific clause<\/strong> on the non-binding character of the instrument may well serve the purpose, being it understood that its absence is not automatically considered \u2013 a contrario<\/em> \u2013 evidence of a binding nature.\u00a0 On the whole, we suggest keeping the draft conclusions as concise as possible<\/strong>, leaving examples of such indicators for the commentaries, while avoiding prescriptive and closed<\/strong> lists<\/strong>.<\/p>\n Italy looks forward to continuing its engagement with the Special Rapporteur and the Commission on the consideration of such an important topic.<\/p>\n ** ** **<\/p>\n 5) Madame Chair,<\/p>\n I will now address the topic of \u201cPrevention and repression of piracy and armed robbery at sea\u201d<\/strong>.<\/p>\n First of all, Italy would like to welcome the new Special Rapporteur, Louis Savagodo, and to support the proposed schedule, particularly the drafting of five successive reports<\/strong> between 2026 and 2031, including the adoption of provisional articles.<\/p>\n As for the deployment of naval operations, <\/strong>Italy emphasizes the importance of studying the practice of naval operations deployed by regional international organizations to combat acts of piracy and armed robbery in maritime areas.\u00a0 We see merit in clarifying the legal bases of such operations and the limits on the use of force, especially when such operations are not expressly based on resolutions of the UN Security Council.<\/p>\n Italy is moreover in favour of adopting new articles concerning the use and status of armed security personnel on board merchant vessels, <\/strong>following the legal developments that have occurred in this field.\u00a0 These new articles should aim at contributing to greater certainty on the legal issues raised by the increasing use of armed security personnel on board of merchant vessels in order to prevent and fight piracy and armed robbery at sea.\u00a0 In particular, Italy agrees with the preliminary assessment of the Special Rapporteur, according to which members of armed security personnel on merchant vessels acting as State agents benefit from immunities attached to their functions as confirmed in the arbitration award of the Enrica Lexie<\/em> case, which has been recalled by the Special Rapporteur.<\/p>\n Italy notes that the issue of the right of innocent passage of merchant vessels<\/strong> with armed security personnel<\/strong> on board <\/strong>should also be analysed.\u00a0 Therefore, Italy welcomes the proposal of the Special Rapporteur in this regard.<\/p>\n ** ** **<\/p>\n 6) Madame Chair,<\/p>\n Turning finally to the topic \u201cSuccession of States in respect of State responsibility<\/strong>\u201d, Italy thanks the Working Group and his Chair, Bimal N. Patel, for their work on the topic.<\/p>\n We recognize the significant challenges in further pursuing the work in question, stemming from the often-cited scarcity and inconsistency of State practice.\u00a0 Against this backdrop, we note that settlement through direct negotiations between and among the States involved is the standard approach, providing for adequate flexibility and full ownership of the process, also in light of the inherently political, rather than exclusively legal, nature of issues related to state succession.<\/p>\n While reiterating our support for the decision to discontinue the work on the topic, we look forward to the report, which we are confident will serve as an important term of reference for practitioners and academics alike.<\/p>\n That concludes Italy\u2019s statement on Cluster II.<\/p>\n Thank you, Madame Chair.<\/p>\n","protected":false},"excerpt":{"rendered":"Thank you, Madame Chair. I will address the topics in cluster II by delivering an abridged version of our statement, the complete text of which has been submitted for publication. ** ** ** 1) I will start by addressing the topic of \u201cImmunity of State officials from foreign criminal jurisdiction\u201d. 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