The Actual Affirmation of Cross-Fertilization

29 MULLER SAM/RICHARDS SIDNEY, Introduction: Globalisation and Highest Courts, in:MULLER SAM/RICHARDS SIDNEY (eds.), Highest Courts and Globalization, The Hague 2010, p. 8.

30 Set up in 1972, the Conference organizes regular conferences with a view to sharing experience as regards constitutional practice and jurisprudence and to maintaining regular contacts on the basis of the principle of judicial independence. See http://www.confcoconsteu.org/en/common/home.html (02.03.2012).

31 Founded in 2004, this association provides a forum for bringing Supreme Courts closer by encourag-ing discussion and the exchange of ideas. In 2006, the Network developed a portal of jurisprudence which allows its members to search in all the national case law databases. See: http://www.network-presidents.eu/spip. php?rubrique1 (27.02.2012).

32 SHANY YUVAL, The Competing Jurisdictions of International Courts and Tribunals, Oxford 2003, pp. 278 et seqq.

33 SLAUGHTER ANNE-MARIE, A New World Order, Princeton 2004, pp. 74 et seqq.

C. The Actual Affirmation of Cross-Fertilization

Desirable as it seems, it appears that – outside hierarchical systems – a binding procedur-al obligation requiring domestic judges to adopt a cross-fertilizing perspective has not yet emerged. Nevertheless, the urge for consistency and legitimacy is so powerful that in all legal systems judges cite previous decisions to justify their rulings³⁴. Accordingly, a de facto use of judicial decisions exists not only among the courts of legal systems that belong to the common law family (such as the United States and the United Kingdom) but also among the courts of mixed jurisdictions (such as Israel and South Africa) and of civil law countries (such as Italy and Switzerland). Indeed, the judges of civil law coun-tries routinely refer to previous domestic decisions – especially those set by supreme courts – and to foreign precedents. This means that the Justinian maxim non examples, sed legibus iudicandum est has not succeeded in preventing the development of the prec-edential influence of decisions in civil law systems³⁵.

Cross-fertilization between domestic courts, and between domestic courts and interna-tional tribunals, has developed in various fields of law. In the field of environmental protection, the courts of several countries are engaging in a worldwide dialogue, with the Indian Supreme Court leading the way³⁶. In the area of migration, national courts dealing with asylum seekers have long began citing each other’s interpretation of the Convention Relating to the Status of Refugees³⁷. By way of example, in 1993 the Canadian Supreme Court cited a 1985 decision of the US Board of Immigration Tribunal, which was later cited by the High Court of Australia (1997), by the New Zealand Refugee Status Authori-ty (1998) and by the House of Lords (1999)³⁸. Domestic courts also engage in inter-judicial exchange with respect to human rights law. Recently, the views of the supreme

34 SANDHOLTZ WAYNE, Prohibiting Plunder. How Norms Change, New York 2007, p. 15.

35 SHAHABUDDEEN MOHAMED, Precedent in the World Court, New York 1996, p. 6.

36 In 1994 the Pakistani Supreme Court made references to Indian cases (Zia v WAPDA, PLD 1994 Sup.

Ct. 693); in 1996 Judge Rahman of the Bangladesh Appellate Division presented the Indian jurispru-dence as a model for emulation (Farooque v Gov’t of Bangladesh, 17 BLD[AD] 1[1997] App. Div.

[1996]); in 2000 the Sri Lanka Supreme Court referred to an Indian judgment with approval (Bu-lankulama v Sec’y, Ministry of Indus. Dev. [2000] LKSC 18). The Indian Supreme Court itself re-ferred to judgments of the courts of the Philippines, Colombia, and South Africa as well as to the ju-risprudence of the European Court of Human Rights (AP Pollution Control Bd. [II] v Nayudu [2000]

INSC 679, [2001] 2 SCC 62 [India Sup. Ct.]). BENVENISTI EYAL, Reclaiming Democracy: The Stra-tegic Uses of Foreign and International Law by National Courts, American Journal of International Law, 2008, p. 241 et seqq, p. 260.

37 28 July 1951, 189 UNTS 150.

38 Regina v Immigration Appeal Tribunal, ex parte Shah [1999] 2 A.C. 629, para. 643. BENVENISTI, Reclaiming Democracy (cit. n. 36), pp. 264 et seqq.

citation. The latter is the type of cross-fertilization on which this paper is focused on.

Between these two extremes lie a number of more nuanced positions where the vertical and horizontal forms of interaction combine in different ways.

Moreover, it is interesting to note that the dynamics of cross-fertilization are variable.

Some courts prefer “talking” to “listening”. For instance, the Supreme Court of the Unit-ed States refers only rarely to the jurisprudence of other courts. The opposition seems to be based upon the concerns about the separation of powers and the associated view that courts should be deferential to the legislator²⁹. On the other hand, some courts work consciously to coordinate their approaches. At the European Union level, the Conference of European Constitutional Courts³⁰ and the Network of the Presidents of the Supreme Judicial Courts of the Member States of the European Union³¹ represent successful para-digms for cross-fertilization.

As for the methods of cross-fertilization, domestic judges can make use of foreign au-thorities through the regular exchanges of information worldwide. The exchange of information may be one way and virtual, for instance through the citation of the judg-ments of other courts. In the present era, the Internet, electronic databases and other forms of information technology allow adjudicators to conduct research into internation-al and foreign law and jurisprudence faster and easier. Apart from this passive reception of foreign decisions, the actual circulation of jurisprudence can be promoted through active face-to-face contacts, through visits or informal meetings between judges of high-er national courts, training courses, confhigh-erences and joint-seminars organized by minis-tries, universities and bar associations³². All in all, these activities favour a genuine dia-logue and foster the awareness that cross-fertilization is ongoing on a global level and create an incentive for courts to be both lender and borrower³³.

29 MULLER SAM/RICHARDS SIDNEY, Introduction: Globalisation and Highest Courts, in:MULLER SAM/RICHARDS SIDNEY (eds.), Highest Courts and Globalization, The Hague 2010, p. 8.

30 Set up in 1972, the Conference organizes regular conferences with a view to sharing experience as regards constitutional practice and jurisprudence and to maintaining regular contacts on the basis of the principle of judicial independence. See http://www.confcoconsteu.org/en/common/home.html (02.03.2012).

31 Founded in 2004, this association provides a forum for bringing Supreme Courts closer by encourag-ing discussion and the exchange of ideas. In 2006, the Network developed a portal of jurisprudence which allows its members to search in all the national case law databases. See: http://www.network-presidents.eu/spip. php?rubrique1 (27.02.2012).

32 SHANY YUVAL, The Competing Jurisdictions of International Courts and Tribunals, Oxford 2003, pp. 278 et seqq.

33 SLAUGHTER ANNE-MARIE, A New World Order, Princeton 2004, pp. 74 et seqq.

C. The Actual Affirmation of Cross-Fertilization

Desirable as it seems, it appears that – outside hierarchical systems – a binding procedur-al obligation requiring domestic judges to adopt a cross-fertilizing perspective has not yet emerged. Nevertheless, the urge for consistency and legitimacy is so powerful that in all legal systems judges cite previous decisions to justify their rulings³⁴. Accordingly, a de facto use of judicial decisions exists not only among the courts of legal systems that belong to the common law family (such as the United States and the United Kingdom) but also among the courts of mixed jurisdictions (such as Israel and South Africa) and of civil law countries (such as Italy and Switzerland). Indeed, the judges of civil law coun-tries routinely refer to previous domestic decisions – especially those set by supreme courts – and to foreign precedents. This means that the Justinian maxim non examples, sed legibus iudicandum est has not succeeded in preventing the development of the prec-edential influence of decisions in civil law systems³⁵.

Cross-fertilization between domestic courts, and between domestic courts and interna-tional tribunals, has developed in various fields of law. In the field of environmental protection, the courts of several countries are engaging in a worldwide dialogue, with the Indian Supreme Court leading the way³⁶. In the area of migration, national courts dealing with asylum seekers have long began citing each other’s interpretation of the Convention Relating to the Status of Refugees³⁷. By way of example, in 1993 the Canadian Supreme Court cited a 1985 decision of the US Board of Immigration Tribunal, which was later cited by the High Court of Australia (1997), by the New Zealand Refugee Status Authori-ty (1998) and by the House of Lords (1999)³⁸. Domestic courts also engage in inter-judicial exchange with respect to human rights law. Recently, the views of the supreme

34 SANDHOLTZ WAYNE, Prohibiting Plunder. How Norms Change, New York 2007, p. 15.

35 SHAHABUDDEEN MOHAMED, Precedent in the World Court, New York 1996, p. 6.

36 In 1994 the Pakistani Supreme Court made references to Indian cases (Zia v WAPDA, PLD 1994 Sup.

Ct. 693); in 1996 Judge Rahman of the Bangladesh Appellate Division presented the Indian jurispru-dence as a model for emulation (Farooque v Gov’t of Bangladesh, 17 BLD[AD] 1[1997] App. Div.

[1996]); in 2000 the Sri Lanka Supreme Court referred to an Indian judgment with approval (Bu-lankulama v Sec’y, Ministry of Indus. Dev. [2000] LKSC 18). The Indian Supreme Court itself re-ferred to judgments of the courts of the Philippines, Colombia, and South Africa as well as to the ju-risprudence of the European Court of Human Rights (AP Pollution Control Bd. [II] v Nayudu [2000]

INSC 679, [2001] 2 SCC 62 [India Sup. Ct.]). BENVENISTI EYAL, Reclaiming Democracy: The Stra-tegic Uses of Foreign and International Law by National Courts, American Journal of International Law, 2008, p. 241 et seqq, p. 260.

37 28 July 1951, 189 UNTS 150.

38 Regina v Immigration Appeal Tribunal, ex parte Shah [1999] 2 A.C. 629, para. 643. BENVENISTI, Reclaiming Democracy (cit. n. 36), pp. 264 et seqq.

courts of Greece, Italy, Germany and United Kingdom clashed over the question of whether human rights protection should prevail over the principle of State immunity³⁹. Moreover, the Italian Court of Cassation has decided a case concerning the legal status of the unborn child by referring extensively to foreign authorities⁴⁰. In this case the Court of Cassation boldly highlighted the normative role of case law by stating that judges are increasingly conscious of operating in a legal system that – though different from a common law system where the stare decisis principle prevails – allows them to employ general clauses – such as bona fide, solidarity, the fundamental importance of human rights – to bring the law up-to-date.

The same practice is discernible in the field of cultural heritage. The first case that is worth mentioning is the renowned Menzel v List⁴¹. In this case, the Supreme Court of New York ordered the restitution of a painting by Chagal – which had been stolen by Nazi forces during the Second World War – by relying on the Regulations annexed to the 1907 Hague Convention⁴² and on foreign case law, such as the Nuremberg Tribunal judgments and the decision Mazzoni v Finanze dello Stato⁴³. The Barakat case is also relevant to the present discussion. This case concerned a collection of eighteen carved jars, bowls and cups allegedly unlawfully excavated in the Jiroft region of Iran. The English Court of Appeal held that the Iranian law of 1979 denied ownership rights in antiquities to finders but conferred both ownership and an immediate right to possession on the State⁴⁴. Crucially, the Court classified the claim as a “patrimonial claim, not a claim to enforce a public law or to assert sovereign rights”⁴⁵. Next, the Court distin-guished between recognition of a nation’s ownership rights and enforcement of a foreign nation’s laws, and held that if a State has acquired title to property situated within its jurisdiction by virtue of its legislation, there is no reason why such a title should not be

39 In Jones and others v Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others (14 June 2006 [2006] UKHL 26) the House of Lords discussed, inter alia, the de-cisions Ferrini v Germany (Italian Court of Cassation, No. 5044, 11 March 2004), Kalogeropoulou and others v Greece and Germany (European Court of Human Rights, Application No. 59021/00, 12 December 2002), and Houshang Bouzari and ors. v Iran (Ontario Superior Court of Justice [2002]

OJ No. 1624, 1 May 2002).

40 A.V. v P. D. and V.S., Court of Cassation (Third Civil Section), 11 May 2009, No. 10741.

41 267 N.Y.S.2d 804, 809 (Sup. Ct. N.Y. 1966), rev’d, 246 N.E.2d 742 (N.Y. 1969).

42 Regulations Respecting the Laws and Customs of War on Land, annex to Hague Convention (IV) Respecting the Laws and Customs of War on Land (18 October 1907), 1 Bevans 631.

43 Tribunale di Venezia, 8 January 1927, Foro It., 1927, I, pp. 961 et seqq. This case concerned the application of the Peace Treaty of Saint-Germain between Italy and Austria and the Regulations an-nexed to the 1907 Hague Convention (cit. n. 42).

44 Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd. [2007] EWCA Civ. 1374.

45 Idem, para. 148 et seqq.

recognized by a foreign court. As a result, the Court of Appeal affirmed that English courts should recognize Iran’s national ownership law and allowed Iran to sue to recover the contested collection⁴⁶. The appellate court reached this conclusion by relying on the case United States v Schultz⁴⁷ and by departing from the established case law that had long been cited by English courts to exclude the extraterritoriality of foreign laws⁴⁸. The third case was decided in 2008, when the Italian Consiglio di Stato closed the litiga-tion over the “Venus of Cyrene” – a headless marble sculpture removed from the ancient Greek settlement of Cyrene, in the Eastern part of Libya, following the Italian invasion of 1911 – by reshaping the foundation of the obligation to return objects removed as a result of war and colonization⁴⁹. The Court affirmed that Italy was under an obligation to return the sculpture to Libya by virtue of a general and autonomous customary principle.

According to the Court, this principle was the corollary of the interplay between the principle prohibiting the threat or use of force (enshrined in article 2.4 of the Charter of the United Nations) and the principle of self-determination of peoples (enshrined in articles 1.2 and 55 of the Charter of the United Nations). The Consiglio di Stato held that these principles belong to customary law by referring to the International Court of Jus-tice’s Advisory Opinions on Namibia⁵⁰ and Western Sahara⁵¹.

The fourth instance of cross-fertilization is provided by the litigation stemming from the 1997 suicide bombing at a pedestrian mall on Ben Yehuda Street in Jerusalem, which

46 Idem, para. 163.

47 178 F. Supp. 2d 445 (S.D.N.Y. 2002), aff’d, 333 F 3d 393 (2d Cir. 2003). The Schultz decision and the cases leading up to it (e.g., United States v An Antique Platter of Gold [184 F.3d 131, 2d Cir.

1999], Government of Peru v Johnson [720 F.Supp. 810, C.D. Cal. 1989], and United States v McClain [545 F.2d 988, 5th Cir. 1977]) indicate that US courts are traditionally willing to recognize the ownership title of source countries and to facilitate the repatriation of items that can be shown to have been stolen or taken in contravention of the laws vesting property in the State, even where the requesting State never had possession.

48 See, above all, Attorney General of New Zealand v Ortiz (1982) 3 QB 432, rev’d, (1984) A.C. 1, add’d, (1983) 2 All E.R. 93. In this case, Lord Denning, from the Court of Appeal, asserted (obiter) that, by virtue of international law, no court would enforce foreign laws so as to allow a foreign State to exercise its sovereignty beyond the limits of its authority. He further explained that the category

“other public laws” had to be understood to include the legislation prohibiting the export of works of art. Barakat case (cit. n. 44), para. 104 et seqq, para. 112 et seqq.

49 Associazione nazionale Italia Nostra Onlus v Ministero per i beni e le attività culturali et al., Consi-glio di Stato, No. 3154, 23 June 2008.

50 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, 21 June 1971, ICJ Reports, 1971, p. 16.

51 16 October 1975, ICJ Reports, 1975, p. 6.

courts of Greece, Italy, Germany and United Kingdom clashed over the question of whether human rights protection should prevail over the principle of State immunity³⁹. Moreover, the Italian Court of Cassation has decided a case concerning the legal status of the unborn child by referring extensively to foreign authorities⁴⁰. In this case the Court of Cassation boldly highlighted the normative role of case law by stating that judges are increasingly conscious of operating in a legal system that – though different from a common law system where the stare decisis principle prevails – allows them to employ general clauses – such as bona fide, solidarity, the fundamental importance of human rights – to bring the law up-to-date.

The same practice is discernible in the field of cultural heritage. The first case that is worth mentioning is the renowned Menzel v List⁴¹. In this case, the Supreme Court of New York ordered the restitution of a painting by Chagal – which had been stolen by Nazi forces during the Second World War – by relying on the Regulations annexed to the 1907 Hague Convention⁴² and on foreign case law, such as the Nuremberg Tribunal judgments and the decision Mazzoni v Finanze dello Stato⁴³. The Barakat case is also relevant to the present discussion. This case concerned a collection of eighteen carved jars, bowls and cups allegedly unlawfully excavated in the Jiroft region of Iran. The English Court of Appeal held that the Iranian law of 1979 denied ownership rights in antiquities to finders but conferred both ownership and an immediate right to possession on the State⁴⁴. Crucially, the Court classified the claim as a “patrimonial claim, not a claim to enforce a public law or to assert sovereign rights”⁴⁵. Next, the Court distin-guished between recognition of a nation’s ownership rights and enforcement of a foreign nation’s laws, and held that if a State has acquired title to property situated within its jurisdiction by virtue of its legislation, there is no reason why such a title should not be

39 In Jones and others v Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others (14 June 2006 [2006] UKHL 26) the House of Lords discussed, inter alia, the de-cisions Ferrini v Germany (Italian Court of Cassation, No. 5044, 11 March 2004), Kalogeropoulou and others v Greece and Germany (European Court of Human Rights, Application No. 59021/00, 12 December 2002), and Houshang Bouzari and ors. v Iran (Ontario Superior Court of Justice [2002]

OJ No. 1624, 1 May 2002).

40 A.V. v P. D. and V.S., Court of Cassation (Third Civil Section), 11 May 2009, No. 10741.

41 267 N.Y.S.2d 804, 809 (Sup. Ct. N.Y. 1966), rev’d, 246 N.E.2d 742 (N.Y. 1969).

42 Regulations Respecting the Laws and Customs of War on Land, annex to Hague Convention (IV) Respecting the Laws and Customs of War on Land (18 October 1907), 1 Bevans 631.

43 Tribunale di Venezia, 8 January 1927, Foro It., 1927, I, pp. 961 et seqq. This case concerned the application of the Peace Treaty of Saint-Germain between Italy and Austria and the Regulations an-nexed to the 1907 Hague Convention (cit. n. 42).

44 Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd. [2007] EWCA Civ. 1374.

45 Idem, para. 148 et seqq.

recognized by a foreign court. As a result, the Court of Appeal affirmed that English courts should recognize Iran’s national ownership law and allowed Iran to sue to recover the contested collection⁴⁶. The appellate court reached this conclusion by relying on the case United States v Schultz⁴⁷ and by departing from the established case law that had long been cited by English courts to exclude the extraterritoriality of foreign laws⁴⁸. The third case was decided in 2008, when the Italian Consiglio di Stato closed the litiga-tion over the “Venus of Cyrene” – a headless marble sculpture removed from the ancient Greek settlement of Cyrene, in the Eastern part of Libya, following the Italian invasion of 1911 – by reshaping the foundation of the obligation to return objects removed as a result of war and colonization⁴⁹. The Court affirmed that Italy was under an obligation to return the sculpture to Libya by virtue of a general and autonomous customary principle.

According to the Court, this principle was the corollary of the interplay between the principle prohibiting the threat or use of force (enshrined in article 2.4 of the Charter of the United Nations) and the principle of self-determination of peoples (enshrined in articles 1.2 and 55 of the Charter of the United Nations). The Consiglio di Stato held that these principles belong to customary law by referring to the International Court of Jus-tice’s Advisory Opinions on Namibia⁵⁰ and Western Sahara⁵¹.

The fourth instance of cross-fertilization is provided by the litigation stemming from the

The fourth instance of cross-fertilization is provided by the litigation stemming from the