In this paper I intend to demonstrate that the impact of international conventions on Italian children’s law reveals a kind of felicitous paradox. The effective and concrete use of international agreements, i. e. the disapplication of national law in contrast with a treaty or the filling in of gaps in domestic law with international law, has been rare. In spite of this, international instruments have been contributing to the improvement of children’s protection in Italy through their progressive effects on case law. Some courts indeed use the United Nations Convention on the Rights of the Child and the European Convention on Human Rights to justify judicial interpretations which cannot be given on the sole ground of domestic law and even to substantiate interpretations against the letter of domestic law. Good examples of this “instrumental use” are provided by the interpretation of the Immigration Consolidation Act given by lower courts. In the paper, I focus on the use of multilateral conventions on substantive and procedural aspects of children’s law (with the exclusion therefore of private international law) by the legislator and the courts. My aim is to establish the role of international instruments in domestic law, assessing if conventions have substantial effects or if their use is merely rhetorical, that is to say if they represent a form of stylistic embellishment deprived of any real power. I then try to determine if the ways of implementing international law in domestic law are likely to change in the near future, analysing the main conflicts between international agreements and Italian law as singled out by the European Court of Human Rights, the Committee on the Rights of the Child and Italian scholars. Finally, I consider the causes of the limited effectiveness of international conventions in children’s matters.
The Impact of International Conventions on Italian Children's Law
LONG, JOELLE
2011-01-01
Abstract
In this paper I intend to demonstrate that the impact of international conventions on Italian children’s law reveals a kind of felicitous paradox. The effective and concrete use of international agreements, i. e. the disapplication of national law in contrast with a treaty or the filling in of gaps in domestic law with international law, has been rare. In spite of this, international instruments have been contributing to the improvement of children’s protection in Italy through their progressive effects on case law. Some courts indeed use the United Nations Convention on the Rights of the Child and the European Convention on Human Rights to justify judicial interpretations which cannot be given on the sole ground of domestic law and even to substantiate interpretations against the letter of domestic law. Good examples of this “instrumental use” are provided by the interpretation of the Immigration Consolidation Act given by lower courts. In the paper, I focus on the use of multilateral conventions on substantive and procedural aspects of children’s law (with the exclusion therefore of private international law) by the legislator and the courts. My aim is to establish the role of international instruments in domestic law, assessing if conventions have substantial effects or if their use is merely rhetorical, that is to say if they represent a form of stylistic embellishment deprived of any real power. I then try to determine if the ways of implementing international law in domestic law are likely to change in the near future, analysing the main conflicts between international agreements and Italian law as singled out by the European Court of Human Rights, the Committee on the Rights of the Child and Italian scholars. Finally, I consider the causes of the limited effectiveness of international conventions in children’s matters.
I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
