Public Prosecutor v. Ashby. Judgment No. 161/98.

Court of Trento, Italy, July 13, 1998.

On February 3, 1998, a U.S. Marine EA-6B aircraft, redeployed at Aviano air base as part of Operation Deliberate Guard in support of the multinational Stabilization Force (SFOR) in Bosnia, was on a low-level training mission over northern Italy when it severed the wires of the cable car at the Cermis ski resort near Cavalese, causing the deaths of twenty people. Because the exercise of criminal action is mandatory under Article 112 of the Italian Constitution, the public prosecutor decided that he had to institute preliminary investigations immediately, with a view to determining whether to prosecute. On July 13, 1998, an Italian judge, in a preliminary hearing, rejected the prosecutor's request that seven U.S. servicemen stand trial for the cable-car accident. The judge found that, under Article VII, paragraph 3(a) (ii) of the NATO Status of Forces Agreement (NATO SOFA), the United States, as the sending state, had the primary right to exercise jurisdiction over the case and that jurisdiction had not been waived. Accordingly, the judge dismissed the case.

In an article in this Journal some years ago, Professor Georg Maier analyzed the legal cases presented by the Republics of Peru and Ecuador during their long boundary dispute and concluded that the Ecuadorian Government had a much stronger de jure title to the disputed territory, while the Peruvian Government’s claim rested primarily on a strong de facto title. Consequently, he argued that the 1942 Rio Protocol which awarded the Peruvian Government the bulk of the territories in question was not an equitable solution to the dispute since such a solution would lie between the extremes of Ecuador’s de jure case and Peru’s de facto case. He further concluded that a more equitable solution should be sought so the dispute would no longer be an impediment to amicable relations between the two countries. The conclusion of this writer is that the Peruvian Government’s de jure case in the dispute was stronger than that of the Ecuadorian Government and that Peru’s legal case was then buttressed by a prolonged occupation and development of much of the disputed area. Furthermore, even if the Rio Protocol was not an equitable solution to the problem, no legal justification exists for demanding the renegotiation of a pact signed and ratified by both the Peruvian and Ecuadorian Governments and then guaranteed by four other American Governments.

The Chinese Empire conveniently dates from 221 B.C., when the King of Ch’in coined the title which has since served for Emperor, and with considerable justness designated himself The First Emperor. Conqueror though he was, he left much still to be done in the process of consolidating under one imperial sovereignty all the kingdoms and tribes of the area which is now north and central China. During the pre-imperial era, intercourse among the rulers of the independent units naturally had a customary pattern, an Asiatic analogue to the rudimentary interstate law of the Greek city states. Two bloody centuries preceding The First Emperor have left much martial romance and philosophy both militant and pacifistic, but meager history. From a relatively quiet earlier period, 722-481, however, the classic annals transmit an abundance of critically acceptable history in palpable detail, with interstate incidents suitable for the purpose of case studies. This paper is limited to the first twenty years of that period, the earliest possible for its purpose, which is to induce interstate custom solely from episodes credibly recorded in Chinese classics. Only a few illustrative cases are quoted here, but all the generalizations rest wholly upon case studies unless specifically noted otherwise.

Substantial contributions to the jurisprudence of the International Court of Justice were made during its twenty-eighth year—in two judgments in the Corfu Channel Case, and in an advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations. The prospect for the greater activity of the Court improved notably during the year, as a result of the institution of proceedings in three contested cases—between the United Kingdom and Norway, France and Egypt, and Colombia and Peru, respectively; and as a result of three requests emanating from the General Assembly for advisory opinions—concerning questions arising under the Treaties of Peace with Bulgaria, Hungary and Rumania; the competence of the General Assembly to admit new Members of the United Nations; and the international status of South West Africa. On the other hand, the year has not been marked by a great increase in the jurisdiction conferred on the Court under Article 36 (2) of the Statute or otherwise.

The International Law Commission (ILC) of the United Nations held its fifty-eighth session in Geneva from May 1 to June 9, and from July 3 to August 11, 2006. This was the final year of the Commission's most recent five-year term (or quinquennium), and it finished work on several topics by completing sets of draft articles on diplomatic protection, principles on international liability for transboundary harm, “guiding principles” on unilateral acts, and conclusions on fragmentation of international law. The Commission also completed its first reading of articles on transboundary aquifers; continued its work on reservations to treaties, responsibility of international organizations, and the effect of armed conflict on treaties; began its consideration of the obligation to extradite or prosecute and the expulsion of aliens; and added a variety of new topics to its long-term program.