RISULTATI RICERCA

Notes on the Return of Italian Military Internees in Germany (1945-1946) - Sabrina Frontera The main theme of the article is the return or rather the experience of return, felt by Italian soldiers interned in Germany (Imi), as individuals or as members of the nascent patriotic associations. At the same time it is analyzed how the institutions, officials and assistance operators, political and military authorities, and the different and major parties were able to understand the needs of the former internees, considering or not the complexity of their history, responding effectively or remaining deaf to their demands. Several documents are used: parliamentary acts, ministerial correspondence, reports of censorship but also letters, diaries, testimonies written on the eve of the return or many years later, independent newspapers, party newspapers, periodicals of veterans’ associations or of political influence.

L'editoria scolastico-educativa e la ricerca storica - The essay provides a survey of the recent studies on schoolbook publishing in France, a country where the interest in publishing history has favourably combined with the history of education, generating a fertile research area that has evolved over the last thirty years. Some research lines such as textbooks, children’s literature, educational periodicals are identified and a review of the recent works on such topics is supplied. As the work by French researchers in the field of book history has been in some ways crucial at the international level, the author wishes to offer a starting point for a reflection on the current developments of the studies on the history of schoolbook publishing in Italy.

Merchant ethics and economic development - Up to the nineteenth century, merchants extended networks of subsidiaries, correspondents and investments world-wide, becoming a major trigger of innovation and economic development. To guarantee the functioning of their international merchant houses, they had to adhere to a strict moral code. The resulting "moral communities" diffused everywhere the "merchant´s liberty": working to fulfil oneself, striving to obtain economic independence and richness as social recognition. As the Ancien Régime neared its end, merchants were ready to economically and morally guide society into a new era. At the same time as many discussed the noblesse commerçante, though, philosophers and economists ridiculed merchant virtues, transforming merchants in men bent only on profit and self-interest. The industrialist, so, became the bourgeoisie´s myth and merchant ethics vanished from the agenda of historians and economists alike. Industrialization thusly lost one of its main characters and economy missed a catalyst of innovation and social capital formation.

Agrarian academies in Italy in XVIIIth century (second part) - The author wishes to highlight the lay-out of agrarian academies in Italy, the social and cultural outlines of academic members, the academies as institutions, the connection between the agrarian societies and the state as well as new eighteenth’s century scientific culture and tradition. The picture is very complex but the author outlines the revival of the old academical models, the difficulties to enlist qualified persons in the field of agronomy, the short weight of the scientific outlook, the subordination of the academies to the state as indication of the difficulties in the self-organisation of the civil society.

Italian dynasties and the War of the Flanders - In this essay the author deals with the Italian princes and noblemen who took part in the war of the Flanders. In the second half of the eighteenth century and the first half of the nineteenth century the nationalist historiography considered them as the only men who were still able to preserve the honour of a nation ruled by the sovereigns who were subject to Spain. Emanuele Filiberto, Alessandro Farnese and Ambrogio Spinola were good examples of an invincible fighting spirit. In fact, the Italians held an important position in the multinational Spanish army; many southern princes and barons often went to the Flanders with their families. In many cases they had received the baptisim of fire under the orders of don Giovanni of Austria, during the historical period starting from the battle of Lepanto to the conquest of Tunis, The author emphasizes that the presence of many foreign princes and noblemen in the military encampments and battlefields of the Flanders forced them to follow precise and codified rules of behaviour belonging to the courtly world. Such rules couldn’t be avoided. Moreover, the military experience abroad had a deep effect on their future destiny. The Kings’gratitude towards the Italians who returned from the Flanders was rewarded with public posts and honours, however it was limited due to the fact that those had been foreign battles.

The postcarolingian transition in the Italico Reign (888-1115). Some aspects - The study takes in consideration an aspect of the so-called postacarolingian transition in the italico Reign, the territorial principato one. Being based mainly on the studies of Giovanni Tabacco, Giuseppe Sergi and Mario Nobili the author considers several political-institutional experiences, from Adalberto of Tuscia to the Obertenghi, from the Arduinici to the Canossani. They come explored the several experimentations of being able that they stretch to construct to political structures who place like intermediate powers between the signorili nuclei and the reign. They come touched also arguments details, as the mutation of regal attitude in the comparisons of the aristocracy, that it passes from the concession of funzionariali delegations to a hybrid situation that stretches to the feudalizzazione of the offices publics. Equally it comes taken in consi- deration an important political factor, represented from the Reform. It comes at last faced also the cultural aspect, putting in evidence the existence of a "political ideology" that stretches to the imitatio regis.

Unlawful Migration by Sea and the Italy-Libya Cooperation in a Law of the Sea Perspective - Since May 2009, Italian naval units have been carrying out redirection programmes of unlawful migrant vessels on the high seas and in the Libyan territorial waters. These patrols are performed jointly with Libyan authorities and in accordance with the Treaty of Friendship, Partnership and Cooperation concluded between the two countries in August 2008. These programmes shall be subjected to a legal analysis focussing on in ternational obligations, in particular on the programmes’ legal basis and their respect of international standards for rescue operations at sea. The law of the sea provides the fundamental principle of the safety of human life at sea and the duty of States to render assistance. This duty to render assistance is not confined to the actual rescue operation at sea but extends to determining the place of safety where the rescued people can disembark. In light of this analysis and recent international practice, the redirection of intercepted migrants vessels to the Libyan coasts as place of safety may well be criticised.

Forcible return of migrants and the European Convention on human rights - Italian authorities have recently undertaken a new policy to face migration flows from north african coasts. Since May, 6th 2009 Italian coastguard and financial police vessels have intercepted a large number of boats carrying migrants and returned them to Libya, in force of a readmission agreement between Italy and Libya. These operations, even if they take place on the high seas, have to comply with the European Convention for Human Rights, considering that the migrants fall under jurisdiction of Italian authorities within the meaning of art. 1 of the Convention. In particular, on the basis of the European Court of Human Rights case law, it can be argued that returning migrants to Libya, as long as they can be exposed to torture or inhuman and degrading treatment, is prohibited by art. 3. Moreover, art. 4 or the Fourth Protocol prohibits the collective expulsions of aliens. Notwithstanding, it’s uncertain whether forcible return of aliens is consistent with the latter provision considering that the European Court requires that aliens ‘leave the country’ in order to apply art. 4. In the end the praxis of Italian authorities is inconsistent with the Convention non-refoulement obligation deriving from art. 3.

Armed Forces engaged in humanitarian missions abroad: the Lozano case - In the well-known Lozano case, an Italian intelligence agent, Mr Nicola Calipari, remained killed in 2005 by an American soldier, Mr Mario Luis Lozano, while entering a US checkpoint on the way to the Baghdad airport soon after securing the release of an Italian journalist from Iraqi kidnappers. In the ensuing case, Italian courts addressed a number of sensitive questions, including that of jurisdiction over national troops involved, directly or indirectly, in so-called "humanitarian missions" abroad. Italian courts did have jurisdiction over the killing under Italian domestic law. Indeed, the murder of Mr Calipari can be regarded as a "political crime" under Article 8 of the Italian penal code. On such a premise, the question is whether Article 8 was superseded by a customary international law rule under Article 10 of the Italian Constitution aimed at excluding jurisdiction over Mr Lozano. State practice suggests that neither a customary rule on the exclusive jurisdiction of the sending State (as claimed by the Court of Assise of Rome in 2007) nor a customary rule on Mr Lozano’s functional immunity (as claimed by the Court of Cassation in 2008) are established in customary international law. Rather, State practice reveals that a number of States are likely to recognize immunity from jurisdiction to the armed forces only in certain specific circumstances. Moreover, such immunity is quite different from the functional immunity traditionally enjoyed by diplomatic and consular agents, as well as from the immunities enjoyed by other high-ranking State officials, such as the Head of State, the Head of Government and the Minister for Foreign Affairs.

Freedom and Rights between India and Europe. A Genealogical Approach to Cultural Values - This paper will deal with the issue of human rights and multiculturalism away from cultural relativism and universalism while taking inspiration from Nietzsche’s Moral Genealogy. In particular, the concepts of karma, dharma and trivarga (an indian traditional form of particularism in the law) will be explained as they are expressed in the Bhagavad Gita, one of the most important texts of Indian philosophical literature. From this analysis it will emerge the impossibility of deducing the idea of human rights from the Sanskrit text. Not because the Bhagavad Gita adopts a communitarian conception of the self but because it entails a very complex and interesting idea of freedom which is little compatible with contemporary human rights discourse. Then, it will be quoted a criticism against the Bhagavad Gita based on the historical genealogy of cultural values, as it was formulated by B.R. Ambedkar - Chairman of the Drafting Committee of Indian Constitution. Finally, this writing will highlight some of the misunderstandings revolving around human rights and multiculturalism. This will be done while suggesting a genealogical approach where different intellectual and law traditions challenge and implement each other, rather than being locked in a sterile mutual respect.

Treatment of irregular migrants and compliance with international obligations protecting basic human rights - The legislative and operational measures recently adopted by Italy in order to prevent and repress clandestine immigration raise the problem of their consistency with Italy’s international obligations conncerning the protection of human rights. With a view to assessing the actual terms of such a problem, contents and extent of the protection to be afforded to irregular migrants, under the international law of human rights, must be preliminarily determined. Considering the specific legal situation of Italy, in the light of its participation both to the European Convention of Human Rights and to the International Covenants on Human Rights, as well as to many other conventions dealing with the protection of human rights, it clearly turns out that Italy is internationally bound to respect and protect a number of basic rights of irregular migrants. Such rights include, at the very least, the right to life, the right not to be subjected to torture (or to cruel, inhuman, or degrading treatment), and the right not to be subjected to arbitrary arrest or detention. Respect for such rights also implies an absolute non-refoulement obligation, that is an obligation not to expel or return an irregular migrant to another State where there is an actual risk that his or her rights would be violated. Moreover, basic rights of clandestine immigrants include the right to family unity, the right not to be subjected to collective expulsion, and (closely linked with this latter right) the right to a fair and transparent procedure of expulsion or repatriation, implying a reasonable and objective examination of the particular case of each individual. Turning to economic, social and cultural rights, an internationally lawful treatment of irregular migrants requires compliance with international obligations protecting the right to health and medical care, the right to primary education, and some core labour rights. The principle of non discrimination plays obviously a crucial role in view of correctly implementing all these international obligations with respect to the specific situation of irregulars migrants. Lastly, special and stronger human rights protection is required when the irregular migrants are children, or victims of trafficking in persons. In the light of the international human rights obligations which are applicable to the peculiar situation of irregular migrants, some of the legislative and operational measures adopted by Italy to struggle against clandestine immigration seem indeed to be inconsistent not only with such obligations (and with the increasing international trend towards the "non criminalization" of clandestine immigrants by reason of their irregular position), but also - at least in part - with the EU legal standards provided for by the recent 2008/115/EC Directive on common standards and procedures for returning illegally staying third-country nationals. This seems to be true, for example, with regard both to the new Article 10 bis inserted in the Legislative Decree n. 286 on immigration, introducing the crime of clandestine immigration, and to the new paragraph 11 bis of Art. 61 of the Criminal Code, introducing a general aggravating circumstance consisting in the irregular status of the immigrant author of a crime. But this seems particularly true and blameworthy with regard to the practice of intercepting crumbling boats full of migrants on the high seas and coercively driving them back to Libya.

Bobbio, human rights and Italian doctrine of international law - Two elements must be taken into account in order to assess Bobbio’s influence on Italian legal thinking regarding human rights and their protection at the international level: on one side, Bobbio’s polyedric attitude towards legal studies; on the other side, the difficulty experienced by the Italian doctrine of international law in moving away from traditional positivist and statalist paradigms. The "dialogue" between Bobbio and international legal thinking probably reached its peak in the middle of the 20th Century, when some international law scholars, referring inter alia to Bobbio’s reflection on custom as a source of law, developed the idea of "spontaneous law" in connection with international customary rules. Yet, this "contact" had only a limited impact on the law of human rights, probably due to the fact that, for a long time, Italian scholars have generally followed a very cautious approach over the possibility of ascertaining the existence of universal rules for the protection of such rights. Besides, the Italian doctrine of international law, in line with its formalistic and statalist foundations, paid in general little attention to the "promotional" function of international law in the area of human rights, despite Bobbio’s attempts to draw the attention to its potentials, especially after the adoption of the Universal Declaration of Human Rights(1948). Italian scholars, assuming that international relations and international law should be looked at from the standpoint of the "constitutional sovereignty" of the State, have also been generally unwilling to study the impact of international rules over issues of constitutional law and to assess whether international law requires States to adopt an institutional and legal framework compatible with the "right to democracy". Instead, Bobbio’s attention to federalism has proved to be more easy to share among international law scholars, especially in connection with international organizations acquiring a supra-national dimension: the need of assuring respect of human rights within such organizations, just like at State level, has been constantly remarked by Italian authors.

The role of theory for the positivization of human rights: Freshness and limits of Norberto Bobbio’s perspective The paper focuses on Bobbio’s argument against the possibility and the usefullness of human rights foundation/justification. This argument is criticized from both an external and the internal point of view. First, the Author questions the identification between finding a conclusive foundation for human rights and justifying human rights, since it causes a complete deny of the role of theory in understanding human rights as well as in giving them a precise content and a legal form. Then the Author argues that (i) justification of rights is implied by their judicial application and evolution; (ii) some important points in Bobbio’s thought the meaning attached to crucial notion, such as equality and liberty, the link between rights, peace and democracy need the importance of theory is defended.