No 00530/2013 of the register of judgements and other jointly-taken measures (REG.PROV.COLL.)

No 00148/2013 of the register of appeals (REG.RIC.)

R E P U B L I C O F I T A L Y

IN THE NAME OF THE PEOPLE OF ITALY

The Regional Administrative Court of Friuli Venezia Giulia

(Division One)

has pronounced the following

JUDGEMENT on the registered appeal No 148 of 2013, brought forward by Roberto

Giurastante, represented and defended by the lawyer Sandra Cisilino, with an

address for service at the offices of the Regional Administrative Court in Trieste,

piazza Unita' D'Italia 7;

ver sus The Region of Friuli Venezia Giulia, represented and defended by the lawyers

Ettore Volpe and Beatrice Croppo, with established residence in Trieste, piazza

Unita' D'Italia 1; the Italian Ministry of the Interior and the Italian Ministry of

Justice, represented and defended by law by the “Avvocatura Dello Stato” (Italian

Government Legal Service), with established residence in Trieste, piazza Dalmazia

3; the President of the Council of Ministers of the Italian Republic, the Regional

Council of the Autonomous Region of Friuli-Venezia Giuilia, the President of the

region of Friuli-Venezia Giulia;

with re gard to Renzo Tondo;

with the in t er vent i on of

Tiziana Severi, Claudio Beorchia, Daniel Marchi, Desiree Marcucci, Mauro Brioli,

Peter Giacomin, Luisa Bressan, Dario Sittaro, Daniela Elisa Pribac, Diego

Alejandro Prattico', Walter Husu, Luciana Proteanu, Mauro Pahor, Fabrizio

Bidussi, Daniela Pesco, Mario Sonni, Dario Zele, Bruno Vusio, Rossana Tassini,

Katia Stary, Lorenzo Sonni, Vittorio Stary, Fabio Bastico, Franco Zennaro, Danilo

Zugan, Alida Valli, Alberto Chermaz, Cesar Ketty, Luca Milkovitsch, Roberto

Dapas, Marco Alfieri, Giorgio Furlani, Gianfranco Biagi, Andrea Ventin,

Guendalina Usai, Andrea Stanese, Giuliano Furlani, Dario Cardillo, Lucia

Sinigaglia, Luciano Pulin, Martina Matarrese, Franca Gregorich, Andrea Brunetta,

Igor Krizmncich, Fabio Neri, Darko Jermanis, Nevio Bonifiacio, Alesandro

Bertocchi, Franco Zonta, Alessandro Gotti, Roberts Kosmazh, Danilo Martini,

Rita Leghissa, Gianfranco Zuzek, Marzia Pann, all appearing “ad adiuvandum” (i.e.

voluntarily) and represented and defended by the lawyer Sandra Cisilino, with

address for service at the offices of the Regional Administrative Court in Trieste,

piazza Unita' D'Italia 7;

f or the annulment

- of the Deliberation No 208 dated 13 February 2013 issued by the Regional

government to establish elections for the President of the Region and the

Regional Council along with administrative elections of certain

municipalities of the region, and of the Decree No 038 issued by the

President of the Autonomous Region of Friuli Venezia Giulia dated 4 March

2013 to summon electoral meetings for the election of the President of the

Region and the eleventh Regional Council;

in view of the appeal and its enclosures; in view of the summons of the region of Friuli Venezia Giulia and the Italian

Ministry of the Interior and the Italian Ministry of Justice; in view of the defence; in view of all the proceedings of the case; given the report of Umberto Zuballi, designated for the public hearing dated 9

October 2013 and having heard the defenders of the parties as specified in the

minutes;

Considering in law and in fact as follows.

FACT With the above-mentioned appeal, the appellant demands the annulment of the

Deliberation No 208, dated 13 February 2013, issued by the Regional Council, to

establish elections of the Regional Council of Friuli Venezia Giulia, and of the

Decree No 038 issued by the President of the Autonomous Region of Friuli

Venezia Giulia dated 4 March 2013 to summon electoral meetings for these

elections.

The appellant Giurastante maintains that the Province of Trieste is not part of the

Italian State but would in fact be part of the denominated Free Territory of

Trieste, as established in Article 21 of the Paris Peace Treaties of 1947 and its

related appendices. The Free Territory of Trieste can be identified on the map that the appellant has

annexed to the appeal (Annex No 1) and that mirrors, in substance, the map

annexed to the Paris Peace Treaties of 1947 which includes the territories currently

belonging to Italy, Slovenia and Croatia; moreover, the legend of the map, drawn

up by the appellant refers to zone A, allegedly “temporarily” administered by Italy,

and zone B “temporarily” administered in part by Slovenia and in part by Croatia. According to the appellant, the aforementioned Peace Treaty was never modified

or replaced by the Treaty of Osimo, a bilateral agreement signed in 1975 between

Italy and Yugoslavia, nor was it ever ratified by the signatories of the

aforementioned Paris Peace Treaties. In substance, and according to the appellant, Italy would only be the temporary

administrator of the part of the Free Territory that can be entrusted as per the

Memorandum of London in 1954 which he defines as a “bilateral agreement”

established between the administrative forces of the Free Territory who, according

to his arguments, should not have been able to substitute the United Nations. To support his claim, the appellant quotes a memorandum from the United States

Department of State dated November 1967 which, in his opinion, recognises the

legal existence of the aforementioned Free Territory.

The appellant then also cites in his favour item 6 on the agenda of the United

Nations Security Council on 22 August 1972, which addressed the issue of the

nomination of the governor for the Free Territory of Trieste. The appellant then presents Annex VI of the 1947 Paris Peace Treaties which lays

down the rules concerning the temporary and permanent statute of the Free

Territory of Trieste. After highlighting the fact that the Paris Peace Treaties were

ratified by Italy he cites, in favour of his argument, the Vienna Convention of 1969

and in particular Articles 26 and 27. According to the appellant, the Free Territory of Trieste exists legally and

therefore the Constitutional Law No 1 of 31 January 1963 which establishes the

Region of Friuli Venezia Giulia would in fact be unconstitutional inasmuch as it

includes, in contradiction with the aforementioned Peace Treaty, the regional

territory of the Province of Trieste. In accordance with the law, the appellant asserts the lack of Italian sovereignty

over zone A of the Free Territory of Trieste and the absolute nullity of all

proceedings instituted without said sovereignty. Such an absolute lack of

sovereignty would arise from the Peace Treaty and the Memorandum of London

which, in his opinion, only entrust Italy with the temporary administration of zone

A.

The second complaint infers the absolute lack of jurisdiction of Italian authorities

in zone A.

With regard to the aforementioned Consitutional Law No 1 of 1963, the latter

would be deemed absolutely null and void as well as unconstitutional for having

incorporated in the region the six municipalities of the Province of Trieste. In fact,

and still according to the appellant, the legal situation established by the Peace

Treaty and the Memorandum, which in all cases would have only entrusted Italy

with the temporary administration of zone A, would be unchanged to this day

resulting in injury to the rights of the citizens of the Free Territory of Trieste. In his fourth argument, the appellant states the illegitimacy of the Trieste Court of

Appeal in its capacity as a legal jurisdiction with an electoral office as said Court is

devoid of authority in the Free Territory of Trieste; in particular, he deems that the

State law No 1086 dated 9 October 1956 is “null” since it could not overrule the

Peace Treaty or the Italian Constitution in its Articles 10 and 117.

In his fifth and final grievance, the appellant contests the very legitimacy of the

current Regional Administrative Court in its capacity as an organ of the Italian

Republic exercising an authority in contradiction with the aforementioned Peace

Treaty and with the Memorandum of London of 1954. In conclusion, the appellant asks as a preliminary consideration that the Regional

Administrative Court declare its absolute lack of jurisdiction and subsequently that

the proceedings in relation to the Constitutional Law No 1 of 1963 be gradually

transferred to the Constitutional Court for the above-mentioned reasons. The appellant also asks to suspend the judgement and transfer the proceedings to

the Italian Government, devoid of sovereignty in zone A of the Free Territory of

Trieste, or to transfer said proceedings to the United Nations Security Council

who shall act as guarantor of the Free Territory of Trieste in order to establish and

nominate the organs of the Free Territory of Trieste.

Lastly, the appellant asks for the annulment of the contested proceedings

presented in the introductory paragraph which are considered absolutely null;

alternatively the appellant asks for the partial annulment of the proceedings that

establish elections in the zone belonging to the Free Territory of Trieste. The region of Friuli Venezia Giulia lodged an appeal on 13 July 2013 arguing that

the appellant’s appeal does not comply with Article 129 of the Italian

Administrative Procedure Act in its contestation of the act declaring the elections.

In all cases the appeal would be deemed belated considering the admission of lists

was concluded on 22 March 2013 while the appeal was deposited on 17 April

2013.

The region then points out the contradiction of the appeal which was brought

before an Italian judge despite highlighting the lack of sovereignty of the Italian

State in the matter. Regarding the question of sovereignty, the region recalls the

judgement No 53 of 1964 of the Constitutional Court and the judgement No 2677

of 2009 of the Regional Administrative Court of Lazio. The Legal Service of the State per Italian district (Avvocatura distrettuale dello

Stato), included with an appeal lodged on 17 May 2013 and defending itself by way

of the written submission lodged on 13 July 2031, also opposes the action raising

the objection that the State lacked the capacity to be sued; the judgement would

thus be inadmissible in that the appellant did not provide evidence of Italian

citizenship and of being registered on the electoral lists of Trieste.

The Italian Legal Service also contests the merits of the appeal, reaffirming the

passive sovereignty of Italy over the province of Trieste.

By a document lodged on 18 July 2013, a series of citizens residing in the Free

Territory appearing “ad adiuvandum” sustain that the present appeal would affect

their rights; said citizens fully stand by all theories asserted in the appeal which

they reproduce in substance. As a preliminary procedural matter said citizens contest to the delayed appearance

before the court of the region of Friuli Venezia Giulia which occurred after the

period prescribed by law.

In a joint brief lodged on 23 July 2013, the appellant and intervening parties

contest once again the delay with which the region appeared before the court.

Considering the nature of the government act announcing the elections, both the

appellant and intervening parties contest to the inadmissible nature of the region’s

counterclaim.

In this regard, both parties argue that Article 62 of the Vienna Convention cannot

be applicable to the case due to obligations imposed on Italy by the Peace Treaty. In a subsequent brief lodged on 24 July 2013, the region contests the objection of

delay brought forward by the opposing party owing to the fact that the terms

referred in Article 46 of the Italian Administrative Procedure Act do not provide a

prescriptive date but an indicative date. In this respect and recalling the judgement No 2677 of 2009 of the Regional

Administrative Court of Lazio, the judgement No 2780 of 2012 of the Italian

Council of State (Consiglio di Stato) as well as the public notice No 49/13 of 29

January 2013 made by the magistrate judge of the preliminary hearings of the

Court of Trieste, the region radically contests the motives of the appeal.

With the rejoinder and replication filed on 18 September 2013, both the appellant

and intervening parties cite in a joint brief a complaint and demand letter dated 18

June 2013 and notify that there would be no contradiction resorting to an judge of

the Italian State to contest the sovereignty of said Italian State.

The appellant and intervening parties call attention to the Vienna Convention on

the Law of Treaties and the Peace Treaty of 1947 which would have established

the Free Territory with immediate effect while the Memorandum of London of

1954 would only have entrust Italy with the authorisation to administer zone A.

The extension of Italian sovereignty would therefore be illegitimate and in

violation of the Peace Treaty. The Constitution Law No 1 of 1963 would itself also

be considered unconstitutional and would count among the violations of the

Treaty. The appellant and intervening parties then criticise (in item 10) the court rulings

issued to this day by various Italian courts considering them all, including the

sentence No 400 of 2013 pronounced by this Regional Administrative Court,

“untenable”. The parties then reaffirm the arguments that were already presented in the appeal

and observe that, based on Articles 61 and 62 of the Vienna Convention, the

clausula rebus sic stantisbus is not applicable to the case in question, be it with

regard to the boundaries or with regard to Italy’s violation of the Peace Treaty. The appellant and intervening parties then state that the authentic interpretation of

the Memorandum of London of 1954 included in a U.S. diplomatic document of

1974 which is annexed herein, would confirm the existence of the Free Territory.

Concerning the Treaty of Osimo of 1975, the latter would be a bilateral agreement

that would not concern the issue of sovereignty and could not modify the Peace

Treaty or the Memorandum of London. With regard to the United Nations Organisation, the latter would have confirmed

the existence of the Free Territory of Trieste in a letter dated 20 May 1983 which

would also have a value to authentic interpretation and which is featured in annex

to the present. Lastly, the appellant points out that the boundary between Slovenia and the Free

Territory of Trieste was defined following the international recognition of Slovenia

itself.

With the rejoinder and replication lodged on 18 September 2013, the region

contests the appellant’s objection with regard to the delayed appearance to court

of said region. The region then recalls, as already presented, the applicability of the clausula rebus

sic stantisbus and concludes that the appeal is inadmissible and unfounded.

On 8 October 2013, the appellant personally lodged a statement of case in which

he reiterated certain arguments present in the written submission dated 18

September 2013 recalling favourably certain judgements of the Council of State

and the Supreme Court of Cassation. Following the brief report of the judge rapporteur during the public hearing of 9

October 2013, the representative of the appellant and intervening parties reiterated

the arguments of the appeal, lamenting the fact that certain expressions contained

in the brief of the Italian Government Legal Service showed, in his opinion, a lack

of respect towards the appellant and the intervening parties.

The Italian Government Legal Service then intervened reiterating its defending

arguments and its objection of inadmissibility before asking that the Court

pronounce itself on the matter.

The representative of the region confirmed what was stated in the

pleadings.

He indicated that the case was delivered for decision.

LAW 1. The appeal in consideration demands the annulment of the deliberation No 208

dated 13 February 2013 of the Regional government to establish elections for the

Region Council of Friuli Venezia Giulia and of the Decree No 038 issued by the

President of the Autonomous Region of Friuli Venezia Giulia dated 4 March 2013

to summon electoral meetings for said elections.

As presented in the conclusions the appellant asks as a preliminary consideration

that the Regional Administrative Court declare its absolute lack of jurisdiction and

that the proceedings in relation to the Constitutional Law No 1 of 1963 be

gradually transferred to the Constitutional Court for the reasons presented in the

appeal and summarised hereinabove. The appellant then asks to suspend the judgement and transfer the proceedings to

the Italian Government, which in his opinion is devoid of sovereignty in zone A of

the Free Territory of Trieste, or to transfer said proceedings to the United Nations

Security Council who shall act as guarantor of the Free Territory of Trieste in

order to establish and nominate the organs of the Free Territory of Trieste.

Lastly, the appellant asks for the annulment of the contested proceedings

considered as absolutely null and alternatively, for their partial annulment in the

parts establishing elections in the zone belonging to the Free Territory of Trieste. ***** 2. The present appeal is considered ordinary and not an electoral appeal since, in

accordance with Article 129 of the Italian Administrative Procedure Act, are

considered electoral all appeals proposed against proceedings following the

announcement of electoral meetings whereas the counterclaim in question

contests the actual act of announcing electoral meetings in the Region of Friuli

Venezia Giulia. In consequence – and contrary to that stated by the Italian State

and the region in question – the appeal was admissible and was lodged in a timely

manner since the appellant did not have to provide evidence of voter registration

as the matter in question is considered ordinary. 2.1 Having been directly lodged by the petitioner and not through his defence

lawyer and failing to comply with the procedures laid down by law, the written

submission lodged on 8 October 2013 cannot be considered admissible.

In any case, save the jurisprudential references of various previous rulings already

known by the court, said written submission brings no additional information to

that which is presented in the appeal and in later written submissions. ***** 3. It is worth briefly examining the intervention “ad adiuvandum” of a number of

individuals who, as residents of the Province of Trieste and in their capacity as

self-declared citizens of the Free Territory of Trieste, declare themselves in favour

of a positive outcome for the appeal in order to reaffirm their rights. This Panel observes that, in substance, the position of the intervening parties, who

furthermore refer to the same defending lawyer as the applicant and proposed two

written submissions jointly drafted with the appellant, does not differ from the

position of the appellant himself. Consequently, the “ad adiuvandum” intervention made by the citizens listed

hereinabove is declared inadmissible; according to settled case-law, the ad

adiuvandum intervention in administrative proceedings – the objective of which is

to support the reasons of the appellant – is in fact admissible if and inasmuch as

the intervening Party benefits from an interest that depends on the interests that

stem from or are accessory to the main case and thus enable the intervening Party

to indirectly benefit from the appeal if the latter is granted. (Council of State,

Section IV, 8 June 2010, No 3589; Section V, 3 December 2009, No 7589;

Regional Administrative Court of Apulia, Lecce, Section II, 6 September 2012, No

1471; Regional Administrative Court Lombardy, Milan, Section I, judgement dated

4 February 2011, No 354). However, the “ad adiuvandum” intervention is inadmissible when presented by an

individual whose main interest is to legitimate the appeal as in such circumstance

the individual does not express mere de facto interest in the case, which is usually

the purpose of the presence of an intervening party, but rather a personal interest

in the appeal of the case itself which is immediately prejudiced by his legal position

and which can therefore be directly appealed in the prescribed expiration period.

(Regional Administrative Court of Molise, Campobasso, Section I, 9 March 2012,

No 92; Regional Administrative Court of Veneto, Section III, 8 March 2012, No

333; Regional Administrative Court of Lazio, Section II, 2 February 2010, No

1413). Seeing as the intervening parties declare to have the same interests as the appellant

in contesting the proceedings that were deposited in the period laid down by law,

the intervention in question, which was evidently presented after the time limits

for lodging an appeal had expired, must be declared inadmissible. ***** 4. The objection that was brought forward by the appellant and the intervening

party with regard to the delayed appearance to court of the region may be

disregarded as the period of time prescribed was indicative. According to an established case-law, in the absence of a response from the

legislator, the time period referred to by the party is of an indicative, and not

peremptory, nature so the appearance before the court of the administration in

question is admissible even if it should occur after the period of sixty days set out

by Article 46 of the Italian Administrative Procedure Act; the delayed appearance

of the administration can therefore not be ruled as invalid and its sole consequence

is that the administration intervenes at the time in which the proceedings take

place. In fact, the period of time for the party in question to appear before court

has a dilatory effect and serves as a security in the sense that, in the absence of the

respondent, no judgement can be made (among many, the Plenary Sitting of the

Council of State No 5 of 25 February 2013 and the Council of States Sec. VI, No

630 of 1 February 2013). ***** 5. Moreover, the objection of the lack of capacity to be sued and the consequent

request of exclusion that was brought forward by the Italian Government Legal

Service, will be ignored whether it be for an appeal for elections or whether the

appeal contests the very sovereignty of the Italian State in the Province of Trieste

as said State represents a necessary element of the present dispute. ***** 6. This said, the intrinsic and irresolvable contradiction of the entire appeal is

above all highlighted in that the appellant has resorted to the Regional

Administrative Court, a judicial body of the State of Italy (the appeal expressly

denies that said Court has any power, see reason stated in item 5) while demanding

that said entity declare its absolute lack of jurisdiction by virtue of the alleged lack

of sovereignty of the Italian State towards the appellant. What seems paradoxical is that the appellant asks the judge to annul two

administrative proceedings and then brings forward the issue of the absolute lack

of jurisdiction, an action usually brought forward by the counterparty to paralyse

the action taken by the judge. A further paradoxical point is to repeatedly ask the

Regional Administrative Court to pass a judgement, and to declare before and

regardless to its outcome that the juridical value of the judgement shall not be

recognised.

In substance, the Regional Administrative Court was asked to deny its own

existence which was nevertheless established in the moment in which said court

was formally asked to rule on the appeal; as our greatest poet said, “because of the

contradiction which consents not1” the request is juridically incongruous, not only

for legal reasons but also for logical reasons. ***** 7. With regard to the final claims of the appeal, conditional in nature, the Regional

Administrative Court was asked to suspend the judgement and as an alternative to

send the proceedings to the Italian Government or to the United Nations in order

to start the procedure of nominating a governor of the Free Territory of Trieste. The request is blatantly inadmissible, not covered by a rule of law and falls outside

the scope of powers of this or any other justice in the world.

As it is universally known, the judge must make a decision secundum legem on a

concrete case and cannot enter political questions of national or international

nature which fall outside the scope of his jurisdiction. The separation of powers, recognised internationally, represents a fundamental

principle of all modern democracies and is the fruit of centuries of legal evolution

which stemmed from Roman law, developed with medieval jurists and jurists of

the Renaissance, and eventually was the subject of renowned works of jurists of

the Most Serene Republic of Venice, of the Republic of France and of the

Austrian Empire, which are, by no coincidence, the juridical successors of the

Holy Roman Empire.

Enshrined in the separation of powers of the Constitution of the Republic, the

political sphere shall remain by all means separate from jurisdictional activities, as

it is subject to the law and to the law only, is therefore independent and shall act

within the strictest limits established by the rules.

                                                                                                                         1  TN  :  Dante’s  Inferno,  Canto  XXVII,  verse  120.  

This Court, conscious of the limits of jurisdictional activity, cannot, should not

and will not deal with issues that fall outside its scope of competency.

In this part, the appeal is considered inadmissible. ***** 8. This said, the Panel shall thoroughly examine the core issue of the present

appeal, firstly to respond to the demanding and stupefying legal theories of the

appellant party which require a careful and detailed analysis even if this must come

to the expense of conciseness and goes against the legitimate request that was

expressed by the Italian Government Legal Service in the hearing.

The entire legal structure of the appellant is based on one axiom: in the parts

concerning the boundary between Italy and Yugoslavia and the creation of the

Free Territory of Trieste, the Paris Peace Treaties of 1947 would still be in force as

any modification to it would require the intervention of all the signatory States and

none of the later international agreements brought said States together.

Consequently, the Memorandum of London of 1954, as cited in the appeal and

being but a "bilateral" agreement (as erroneously stated in page 2 of the appeal,

since the agreement actually involved four signatories) could not modify the Peace

Treaty nor consequently the status of the Free Territory in the same way the

Treaty of Osimo of 1975, a bilateral agreement allegedly never "ratified" by the

signatories of the Peace Treaty (as stated yet again in page 2 of the appeal), could

not.

In other words, according to the appellant’s legal argument, any modification to

the Peace Treaty of 1947 would require the agreement of absolutely all signatories.

All five objections (or better yet, the juridical consequences) listed in the appeal are

thus the logical sequence of this above-mentioend premise which are, in order: the

lack of sovereignty of the Italian State in zone A, the consequent absolute

invalidity of all proceedings depending on said sovereignty, the lack of absolute

jurisdiction of Italian authorities in zone A, the unconstitutional nature of the

Constitutional Law No 1 of 1963 and finally, the illegitimacy of the Trieste Court

of Appeal and of the Regional Administrative Court of Friuli Venezia Giulia.

8.1 Thus, as explained and demonstrated in detail hereunder, it is assumed that the

foundations upon which the entire appeal currently under consideration is based

on are devoid of any legal value.

May the truth prevail: on the one hand, according to principles recognised by

international law and embodied in the Vienna Convention, the Peace Treaty could

legitimately be modified – as was indeed the case – by various subsequent treaties

among which the Memorandum of London, the Helsinki Accords and the Treaty

of Osimo upon approval of just some of the signatories. On the other hand, and equally as decisive, any modification made by just part of

the signatories is expressly permitted by the Paris Peace Treaties themselves, in

particular in Article 46. 8.2 By way of summarizing and anticipating what shall be explained and

demonstrated hereunder with regard to the submissions of the appellant’s legal

arguments, it has so far been noted that the latter present some omissions: indeed,

the applicant has ignored the entire content of the Peace Treaty (Article 46), the

legal significance of the Memorandum of London (Articles 1, 2 and 3), the detailed

explanation of the Vienna Convention and within the latter Articles 30 and 41 as

well as the Helsinki Accords, has mistakenly interpreted the basic content and the

legal effects of the Treaty of Osimo, has neglected the juridical nature of authentic

interpretation and finally, has ignored the numerous subsequent international

treaties that indisputably set forth the boundary between Italy and what was then

Yugoslavia or between the current territories subject to Italian, Slovene and

Croatian sovereignty. 8.3 For convenience purposes, it is hereby stated that the issue of the

interpretation of the treaties shall be examined in item 9, the interpretation of the

1947 Peace Treaties shall be examined in item 10 (more specifically, Article 46 of

the Treaty shall be considered in items 10.5 and 10.6), the issue of the Free

Territory shall be considered in item 11, the Memorandum of London in items 12

and 13, and the subsequent legislations, namely the Helsinki Accords and the

Treaty of Osimo, shall be considered in item 14 and 15 respectively; finally, item

16 shall address Slovenia and Croatia’s treaties of accession to the European

Union. ***** 9. Before examining the international rules that have regulated the situation of

Trieste from 1947 until now, it appears necessary to briefly recall the interpretive

clauses of international treaties. There are in fact several generally recognised undisputed principals of international

law that are considered requirements in every treaty. These are recalled in Article

10 of the Constitution of the Italian Republic and have been applied in

international agreements for decades. 9.1 The Vienna Convention of 23 May 1969 on the law of international treaties,

ratified by Italy in its law No 112 dated 12 February 1974, which states in its

preamble that the principles of free consent and good faith as well as the pacta

sunt servada principle are universally recognised, is decisive in this matter. It shall also be stated that, even though it was signed in 1969 and Article 4 defines

it as non-retroactive, the Vienna Convention is considered throughout the world

as receptive of the long consolidated and generally recognised principles of

international law in particular regarding the aspects listed below that – as shall be

presented – fall under the interpretation of international rules regarding Italy’s

eastern border. Furthermore, most of the Convention is considered an interpretive rule and is thus

retroactive by nature; it shall be applied as such in this judgement and in relation to

the treaties preceding its approbation.

9.2 It is herein stated that at least three rules of the aforementioned Vienna

Convention (Articles 30, 41 and 62), which shall be examined in detail and as one,

confirm in various ways the basic principle that the rules of a multilateral treaty

such as the Paris Peace Treaties can legitimately be modified by some of its

signatories and under certain conditions which are respected in the case in

question.

In fact, the three articles of the aforementioned Vienna Convention refer to three

different aspects. Article 62 and those that directly precede it refer to the implementation of treaties,

the situations that do not allow the implementation and fulfilment of said treaties,

and sets forth in substance the conditions in which the clausula rebus sic

stantisbus, itself a principle of effectiveness, can be applied.

Article 30 refers to the relation between consecutive treaties that deal with one

same issue, and sub-paragraph 4 expressly considers the possibilty that not all

parties of the previous treaty are parties of the subsequent treaty. Finally, Article 41 expressly relates to the agreements modifying multilateral

treaties in the cases where only some signatories are involved. Obviously, the conditions set forth in the Vienna Convention that allow for a non-

application of multilateral treaties are much stricter than an agreed modification of

the treaty involving some of the signatories. In fact, an objection to implement a

treaty that governs borders may only occur if these borders are subject to a new

treaty which involves some of the States that have already signed a multilateral

treaty that has been partly modified. 9.3 Two decisive legal arguments can be understood from a simple reading of the

three articles: the first is the existence in the field of international law of the so-

called clause of effectiveness, the second is the self-evident legal possibility to

modify a multilateral treaty by just some of its signatories.

This second aspect is in fact sufficient to refute the basic legal argument upon

which the appeal in question is based on and therefore to consider the full validity

of the Memorandum of London, the Helsinki Accords and the Treaty of Osimo. 9.4 All three aforementioned articles of the Vienna Convention were in fact

applied in the legal case in question, the first of which is Article 62 relating to the

clausula rebus sic stantisbus which was applied with the Memorandum of London

when it was established that the implementation the Paris Peace Treaties with

regard to the Free Territory was impossible. Consequently, in amendment of the

aforementioned Paris Peace Treaties, the need to set a new boundary between Italy

and Yugoslavia became apparent. Thus, Articles 30 and 41 of the Vienna

Convention where applied to modify the Peace Treaty through the Memorandum

of London and then through the Treaty of Osimo. 9.5 The principle of effectiveness, self-evident in international law and established

well before it was regulated in the Vienna Convention, means that the abstract

provision of a treaty must find its parallel in the real world or else, with time, it

loses effectiveness which results in its modification or in the non-application of

the treaty. This is in fact what happened with the parts of the Paris Peace Treaties

that concern the Free Territory which were first set aside and then explicitly

abrogated, in a progressive manner with the Memorandum of London and the

Treaty of Osimo. The principle of effectiveness, itself deriving from the more general principle of

legal certainty, carries out the same function in the area of international law,

mutatis mutandis, as the instauration of usucaption does in civil law and as a

period of prescription does in criminal law, that is to say that there is a need for

the de jure situation to adapt to the de facto situation modifying itself with the

course of time.

9.6 In the case in question, it must be reiterated that, while taking into account the

obligation of good faith, the principle called “rebus sic stantibus”, that is to say the

possibility to modify treaties when the changes to the situation are such that they

can no longer ensure the applicability of said treaties, must be applied in the

interpretation of the Paris Peace Treaties, the Memorandum of London, the Treaty

of Osimo and the subsequent international rules relating to the Eastern boundary

of Italy. In other words, the aforementioned principle of effectiveness has a particular

importance in the area of international law, as the treaty itself can lose its

applicability or be modified when the connection between an international

agreement and the concrete possibility to apply it appears to be no longer viable

for serious reasons. 9.7 Concerning the application of Article 62 of the Vienna Convention, the

appellant states (in pages 3 and 4 of the written submission dated 22 July 2013)

that the rebus sic stantibus rule would not be applicable to the present case as the

proposed changes, including the modifications to the boundary and the division of

the Free Territory, would have the effect of radically altering the scope of Italy’s

obligations with regard to the Peace Treaty and would illegitimately concern the

boundaries. The appellant’s argument, even if but suggestive in nature, has no foundation: in

fact the only change mentioned in the present argument deriving from the Peace

Treaty that concerns an aspect not related to the boundary between Italy and

Yugoslavia is the Free Port of Trieste which is protected both by the

Memorandum of London (Article 5) and the Treaty of Osimo (Article 7). As for the boundaries, leaving aside the fact that their modification on the basis of

Articles 30 and 41 of the Convention is in either case legally admitted since the

limit relating to the boundary concerns only Article 62 which deals with the non-

application of the treaties and not their modification, it was in the necessity,

interest and power of both Italy and Yugoslavia to define their boundaries and

thus to acquire the full sovereignty of a part of the never-established Free Territory

once it was made clear that the Free Territory could not be created, obviously

through no fault of the aforementioned countries, or in other words, once the

clausula rebus sic stantibus was applied. The interpretation given by the appellant of Article 62 would render it inapplicable

and void of any concrete significance as it is evident that it implies, by nature, a

certain modification of the original obligations that derive from a multilateral

international treaty and that represent, in this case, obligations imposed both on

Italy and Yugoslavia. Furthermore, the fact that the Free Territory was not

established does not depend on either of the two countries but derives from the

lack of agreement among the great powers of the UN Security Council. The scope of Article 62, in the same way as the scope of Article 30 and Article 41

of the Vienna Convention, is to allow and regulate the modification of obligations

that derive from the previous multilateral treaty with the agreement of the States

interested in the modification, which can include just some of the States that

signed the multilateral agreement to be modified. The logic behind the rule is

evident: there is no desire to set in stone every single aspect of a multilateral treaty,

and thus render the latter de facto immutable as each future modification would

require the presence of every single signatory and it must be borne in mind that

multilateral treaties are often signed by dozens of States. Therefore if the modification concerns the boundary between two sovereign States

that have found an agreement in this respect, and once the procedure set forth in

Articles 30, 41 and 62 of the aforementioned Vienna Convention is adopted and

followed (as was the case both for the Memorandum of London and the Treaty of

Osimo), there is no reason why the self-evident principle of effectiveness, which

exists internationally and is actually recognised by the appellant party even though

the latter denies its applicability to the present case, should not be applied to the

case in question. For thoroughness’ sake, is it observed that the issue equally involved Italy and

Yugoslavia which were subject to obligations and provisions that obviously

affected both countries alike. Finally, the scope of the Peace Treaty of 1947 was the very restoration and

conservation of peace and this aim was clearly pursued in the Memorandum of

London as well as in the Treaty of Osimo. 9.8 Two further noteworthy international customs apply to the present case;

according to the first custom, all border disputes should normally be resolved by

the States sharing the border in question unless it interferes with the interests of

third-party States; according to the second custom, a special international rule

prevails over a general international rule. 9.9 Regarding the issue of the binding effect of treaties, particularly pertinent in

the case of the Memorandum of London, Articles 11 and 12 of the

aforementioned Vienna Convention list the various ways in which States can

express their binding accession to an international agreement and thus affirm that

a State can adhere to a treaty in various ways including through the signature, the

exchange of instruments constituting a treaty, the ratification, the acceptance, the

approval or the accession or any other means if so agreed. 9.10 More specifically, the Vienna Convention asserts that a State’s consensus to

adhere to a treaty is expressed through the signature of its representative in three

cases: a) when the treaty provides that the signature shall have that effect; b) when

the negotiating States have agreed that the signature should have that effect; c)

when the intention of the State to give that effect to the signature appears from

the full powers of its representative or was expressed during the negotiations. It is worth stating that, even if it is not ratified by the Italian Parliament, an

international treaty such as the Memorandum of London had and has full value

both internationally and nationally, since Italy’s intention to give effect to the

signature derives from the powers entrusted in its representative, as it is expressed

in the course of the negotiations and as it can be seen from the conclusive

behaviour of the Italian State. 9.11 With regard to the relation between the Paris Peace Treaties, the

Memorandum of London and the Treaty of Osimo which is essential to the

outcome of the present case, the previously mentioned Article 41 of the Vienna

Convention on the possibility for only some of the signatories to modify

multilateral treaties shall be examined for its relevance and connection to the

present case. Said article – ignored in the appeal – states that two or more parties of a

multilateral treaty may conclude an agreement to modify the treaty only in their

mutual relations if such a modification is foreseen by the treaty or if the

modification in question is not forbidden by the treaty. 9.12 The rule establishes two conditions: that the modification not prejudice in

any way the other parties’ rights and obligations as stated in the treaty and that it

not concern one of the dispositions to which the States may not derogate from

without there being an incompatibility with the actual realisation of the subject or

of the scope of the treaty.

Finally, unless stated otherwise in the treaty, the parties in question must notify the

other parties of their intentions do conclude an agreement and of the

modifications that such an agreement would impose on the treaty. This is precisely what happened with the Memorandum of London and the Treaty

of Osimo. In fact, the modifications to the Peace Treaty contained in both these

treaties have the obvious aim of maintaining and consolidating peace, the same

aim as the Paris Peace Treaties which is therefore not denied but in fact

consolidated. 9.13 Also relevant to the case in question is Article 30, paragraph IV,

subparagraph a) of the aforementioned Vienna Convention (also left unmentioned

in the appeal) which states that, when the parties of a previous treaty are not all

part of the subsequent treaty, the rule presented in paragraph 3 must be applied to

the relation between the States involved in both treaties and also foresees that the

previous treaty only applies if it is not incompatible with its successor.

The disposition of Article 30 is clear and confirms the legal possibility to modify

an international treaty with only some of the original signatories; a possibility

which was not taken into account in the elaboration of the entire present appeal. 9.14 To conclude on this point, the Memorandum of London as well as the

Helsinki Accords and the Treaty of Osimo are all considered a partial modification

to the Paris Peace Treaties decided upon by a few signatories and permitted as not

expressly stipulated otherwise by that very Treaty. Said partial modification is in no

way prejudicing the other parties, confirms the initial aim of the Paris Peace

Treaties and finally was duly notified to the other signatory countries of the Peace

Treaty and thus is in the full respect of all three conditions set by the Vienna

Convention as well as international practices. ***** 10. That being stated, the Treaty of Peace between Italy and the victors of the

Second World War (amounting to a total of 20), which expressly deals with the

never-established Free Territory of Trieste, shall now be examined. The Treaty, signed in Paris on 10 February 1947, was ratified by Italy with the

authorisation granted by Law No 811 of 2 August 1947, approved by the

Constituent Assembly of Italy, implemented through the Legislative Decree of the

Provisional Head of State No 1430 on 29 November 1947 and finally ratified

through the Law No 3054 of 25 November 1952.

It must be borne in mind that this concerns a peace treaty established after Italy’s

defeat in the Second World War that was decided upon during a conference held

in Paris and attended by the Allies of World War II. Furthermore, it should be

duly recalled that, as indicated in the premises of the aforementioned Peace Treaty,

fascist Italy, Nazi Germany and a militarist Japan initiated the Second World War

and attacked their neighbouring countries which included Yugoslavia.

10.1 Even though peace treaties undoubtedly belong to the family of international

treaties they present certain particular characteristics. First and foremost, these

treaties are obviously imposed on the countries that have lost the war, among

which Italy, and that can normally not negotiate the clauses but are constrained to

accept them as a whole. Additionally, treaties such as the one in question are multiple Party treaties which –

as explained hereinabove – may be modified by some of the signatories and in the

parts that concern only some of the subjects involved according to the modalities

and conditions stipulated, as mentioned hereabove, by Articles 30, 41 and 62 of

the Vienna Convention. In other words, where it is not stated otherwise, some

signatory countries of the treaty may change certain dispositions as long as these

do not interfere with the interests of the other parties and as long as the latter are

notified of such modifications.

10.2 Historically speaking, peace treaties are usually modified, often by some of

the signatory parties once the defeated country has been readmitted with its full

rights in the international community or once it becomes allied to the victorious

countries; this was indeed the case on several occasion: Okinawa Island was

returned to Japan following a bilateral agreement with the United States, and the

Saar was returned to the Federal Republic of Germany. A similar situation occurred in 1954 between Italy and the Province of Trieste. 10.3 In Articles 21 and 22 and in the attachments VI, VII, VIII, IX and X, the

Paris Peace Treaties provided for the temporary creation of the Free Territory of

Trieste, a demilitarised and neutral state with its own governing body and its own

legislative and judicial powers operating under the responsibility of the United

Nations Security Council.

10.4 The correct legal interpretation of the Peace Treaty and in particular of

Article 21, concerning the aforementioned principle of effectiveness, leads to the

conclusion that the birth of the Free Territory and the resulting transfer of

sovereignty to the latter would be conditioned, at the least, by the first constituent

instrument of said Free Territory, in other words, by the nomination by the

Security Council of its government. This was done for evident practical reasons, as

the initial temporary statute and the subsequent permanent satute could only be

established with the nomination of a governor, but also for the determining reason

that the nomination of a governor through the Security Council would have shown

the common willingness of the victors to act upon the part of the Treaty which

established the Free Territory. As it is known, the nomination of the governor never occurred and therefore the

Free Territory never came in existence and there was no transfer of sovereignty to

the latter. Therefore, as it shall be examined in more detail hereunder, the part of the Peace

Treaty relating to the Free Territory was never carried out and was formally

abrogated in 1954 with the Memorandum of London which consequently fixed

the new boundary between Italy and Yugoslavia; this boundary was then

confirmed with more precision and incisiveness by the Treaty of Osimo in 1975.

In fact, the Peace Treaty of 1947 had clearly defined the boundary of the Free

Territory with Italy and what was then Yugoslavia; this included territories that

today form part of Slovenia and Croatia as well as those of Italy obviously. 10.5 It must be highlighted that the Peace Treaty of 1947 did not, by any means,

ban partial modifications by some of the signatories if these modifications

interested the latter exclusively. In other words, the agreement of all the signatories of the Peace Treaty was not

necessary for the elimination of the Free Territory and the resulting new definition

of the boundary between Italy and Yugoslavia. In fact, Article 46 of the aforementioned Peace Treaty (ignored by the appellant)

calls for a consensus between all the allied forces exclusively and only with regard

to any eventual modification that should be added to the military, naval and air

clauses, in other words referring only to Paragraph VI of the Treaty in question

and duly entitled “Naval, military and air clauses” following said Article 46. It follows therefore, with evident legal clarity and according to basic backwards

reasoning, that the other modifications which do not concern Paragraph IV of the

Treaty do not require, by any means, the consensus of all the signatory States of

the Paris Peace Treaties. As for the rest, it is unclear what interests Mexico, Australia and Ethiopia,

signatories of the Paris Peace Treaties, would have in the definition of the

boundary between Italy and Yugoslavia. It is finally worth stating that there are no other articles in the Treaty that are

equivalent to said Article 46.

10.6 Article 46 of the Peace Treaty foresees that such a particular procedure which

would involve all the signatory countries – even if this concerns only the

aforementioned paragraph IV of the Treaty and therefore not the issue of

boundary which is an issue of the Memorandum of London and then of the

Treaty of Osimo – may be omitted and substituted by an agreement between the

Security Council and Italy (once the latter is admitted as a Member of the UN). Thus, the Treaty of Peace with Italy established that the United Nations Security

Council legally substitute the Allies of the Second World War in assuming the role

that the latter previously collectively carried out including with regard to the

implementation of the Treaty of Peace with Italy.

It therefore follows that, from a logical and legal point of view, every

communication with the Security Council with regard to modifications to the

Peace Treaty is equivalent to notifying all the signatory countries of the Peace

Treaty itself. As shall be examined in greater detail hereunder, this was indeed the case for the

Memorandum of London, the Helsinki Accords and the Treaty of Osimo with

regard to the issue of boundaries and to thhe logical and legal antecedent of the

issue, that is the elimination, better yet, the realisation that the Free Territory was

never established. 10.7 For the purposes of confirming the legal possibility of modifying the Paris

Peace Treaties with only some of the signatories, Articles 86 and 87 of the latter

should be mentioned; the first establishes that, for a period of 18 months, the

ambassadors in Rome of the United Stated of America, the United Kingdom of

Great Britain and Northern Ireland and France shall represent the allied forces

when dealing with all issues relating to “the implementation and interpretation” of

the Treaty itself. The subsequent Article 87 specifies that every dispute that concerns the

interpretation or implementation of the Treaty and that is not subject to a

particular procedure (such as the dispute of Article 46) or “that is not settled

through direct diplomatic negotiations” shall be put before the four ambassadors

who shall serve as representatives of the allied forces even beyond the 18-month

period. Thus, this rule allows for the implementation of the agreements set forth in

the Peace Treaty and solely put before the four aforementioned powers. 10.8 To complete and confirm, it is observed that alongside the Treaty of peace

numerous bilateral agreements of implementation – as well as of partial exception

and partial modification – were established between Italy and only some of the

winning States to resolve, above all, financial and economic issues (among these

agreements are those established between Italy and the United Kingdom of Great

Britain and Northern Ireland in 1947; with China in 1947 again; with Yugoslavia in

1949, 1950 and 1954, with Greece in 1949 and in 1953; with France in 1950 and

1951; with Australia in 1952; with Mexico in 1953 and with Belgium in 1953). ***** 11. The Free Territory of Trieste was established as the necessary consequence of

the impossibility to define, with regard to the part concerning Trieste and the

adjacent Istrian zone, the border between Italy and Yugoslavia in a shared way

between the winning powers of the Second World War (among which Yugoslavia

itself) and as a consequence of fractures that were starting to form in Europe

between the two opposing political power blocks and that were illustrated by the

term “iron curtain” which was coined by a British politician at the time to indicate

the imaginary line which started in Szczecin and ended in Trieste separating these

two blocks. To resolve the issue, the idea of creating a pseudo-independent state, under direct

responsibility of the United Nations Security Council along the same lines as the

idea proposed by the UN for Jerusalem (which was itself also never established),

was proposed.

11.1 The idea was to create a state that had limited sovereignty and was governed

by external powers, guaranteed and controlled by the Security Council including

for issues relating to order and security (see Article 2 of Paragraph VI of the

Treaty), with a governor, in other words a head of state nominated by the Security

Council (and who could not be a citizen either of the Free Territory or of Italy or

of Yugoslavia, pursuant to Article 11 of Paragraph VI), and which was neutral (as

was the case for Austria in 1954, who was the only country in the world whose

constitution established its neutrality, which was itself a source of long-standing

legal disputes) and demilitarized. As described above, the governor was accountable to the Security Council (Article

17 paragraph VI), had the power to suspend administrative acts (Article 20

paragraph VI) and had specific powers (Article 22). 11.2 In substance, the so-called Free Territory was not absolutely free, it was a

state crippled from birth and under the care of external authorities, split in half,

deprived of the essential attributes of sovereignty (which include the possibility of

choosing freely the head of state, the autonomy of its foreign policy, the

management of public order and armed forces), very similar in its structure to ex-

colonies (such as, for example, Somalia) and entrusted to the United Nations until

it received its independence, but as this never happend, was permanently subject

to a sort of limited sovereignty with a head of state that was, by law, foreign. It is for the reasons stated hereinabove that a known legal theory denied the Free

Territory the status of State and considered it a secondary entity deriving from and

dependent on the United Nations. 11.3 As it is known, and as has been legally self-evident for decades (though

evidently not for the appellant and intervening parties), the Free Territory of

Trieste never came into legal existence due to the changing international political

situations and the resulting impossibility of nominating a governor, as was

foreseen in the Treaty, which would have necessarily lead to the applicability of the

new State’s temporary statute initially and then, of its permanent statute. The

change of the de facto situation was such that it allowed for the application of the

international principle “rebus sic stantibus” recalled hereabove. 11.4 Consequently, the territory that was part of the Free Territory of Trieste as

established by the Treaty was administered as of 1947 by the Yugoslav National

Army in zone B – zone which includes a part of the Istrian peninsula that today

belongs to Croatia and Slovenia, two sovereign States members of the European

Union – and by British and American forces in zone A, which includes the city of

Trieste and its surroundings. It was a double military occupation – non-belligerent and founded on a truce – in

which the military authorities, Yugoslav and Anglo-American respectively, had

every legislative and administrative power in a precarious situation that was

necessarily meant to be temporary and transitory. ***** 12. The Memorandum of London, signed on 5 October 1954 by the Italian,

Yugoslav, American and British plenipotentiaries, ascertained and set forth the end

– better yet, the impossibility of coming into existence – of the Free Territory of

Trieste and consequently defined the boundary between Italy and what was then

Yugoslavia for the part that was not provided for in the Peace Treaties, in other

words, fixing the boundary between the two countries based on the disappearance

and worthless nature of the Free Territory. 12.1 For completion purposes, it is observed that the new boundary of 1954 does

not exactly retrace the boundaries between zone A and zone B of the Free

Territory because the Memorandum presented a small correction of boundaries in

favour of Yugoslavia, and therefore to the disadvantage of Italy, in the zone of

Muggia (about 12,000 sqm with a population of just over 3,000 inhabitants). The

boundary adjustment, however small in nature, was furthermore expressly set as a

condition of the Memorandum in such a way that the other clauses of the treaty,

including the transfer of powers to zone A which occurred on 26 October 1954,

could only be put into effect once the definition of the new boundary was

established. 12.2 In fact, Article 1 of the Memorandum (ignored by the appellant in this

decisive aspect) states that, considering the fact that it was impossible to put into

effect the provisions of the Italian Peace Treaty relating to the Free Territory of

Trieste (in the official English text: “Owing to the fact that it has proved

impossible to put into effect the provisions of the Italian Peace Treaty relating to

the Free Territory of Trieste”), Italy, Yugoslavia, the United Kingdom of Great

Britain and Northern Ireland and the United States of America, as the countries

principally concerned, decided that the governments of the United Kingdom of

Great Britain and Northern Ireland and the United States of America would

terminate military occupation of zone A, would withdraw their military forces

from the area north of the new border between Italy and Yugoslavia and that the

two latter countries would succeed in the administration of zone A and zone B

respectively with the slight territorial adjustments in favour of Yugoslavia that were

mentioned and foreseen in the Memorandum. 12.3 The impossibility to give “effect” to the clauses on the Free Territory was in

fact proven by the many years of to-and-fro negotiations between the Western

democracies (the United Kingdom of Great Britain and Northern Ireland, France

and the United States of America) and the Soviet Union with regard to proposals

of nominations to the post of governor with both parties firmly refusing the

proposal of the counterparty (in one case, one issue was brought forward by both

parties alternatively at different times and still, it did not lead to a positive

outcome). As historians have proven, the situation was blocked and presented serious risks

of conflict, potentially armed.

12.4 In such a context and taking act upon the de facto situation, Article 1 of the

Memorandum declared, in substance, the duty and will of applying to previously

mentioned international principle “rebus sic stantibus”. Realising that it was

impossible to put into effect the Peace Treaty with regard to the Free Territory,

the inevitable consequences ensued and the division of said Free Territory was

established by decree and the new boundary between Italy and Yugoslavia with a

legitimate adjustment to the Peace Treaty (allowed for by the international

principles then shared and now instilled in Articles 30, 41 and 62 of the Vienna

Convention) was consequently defined. 12.5 The position held by the appellant concerning the Memorandum of London

is peculiar and contradictory; on the one hand the applicant states (in page 4 on

the introductory appeal) that the latter, like the Peace Treaty, in an “efficient and

operating” international instrument, on the other hand said applicant only takes

into consideration the part that entrusts the administration of zone B to

Yugoslavia and zone A to Italy, ignoring altogether the part pertaining to the

boundaries and above all ignoring the fundamental premise from which the entire

content of the Memorandum and the very reason of its stipulation, that is, the

realisation of the proved impossibility of achieving the Free Territory, stem. In the opinion of this Panel, it seems logically and legally incongruous to consider

an international treaty efficient in just one of its clauses (the interpretation of

which was, furthermore, limited) and not in the other dispositions and above all

not in its decisive and fundamental premise.

It is in fact legally erroneous to state that the Memorandum overlooked the Free

Territory and limited itself to assigning the temporary responsibility of zone A and

zone B to Italy and Yugoslavia respectively, when the legal premise from which

the Memorandum itself originates from and which establishes its raison d’être

(Article 1) is the inexistence and elimination of the Free Territory itself; only such

a context can explain and justify the definition of the new boundary between Italy

and Yugoslavia (boundary being the unambiguous term repeated in Articles 2 and

3) and Italy’s obligation to implement only some of the dispositions to the Free

Port (Article 5) whether it be “in general accordance”, which would have no logic

nor use if the so-called Free Territory would have been maintained, or whether it

be to postpone such a fulfilment (concerning the issue of the Free Port, see in

particular judgement No 400 of 2013 issued by this Regional Administrative

Court). 12.6 Likewise, it seems illogical to consider – as is explained in the appeal – the

Memorandum to be “valid and efficient”, though mistakenly defined as a bilateral

agreement, but not the Treaty of Osimo signed by Italy and Yugoslavia, nor the

Helsinki Accords signed by nearly all the European States along with the United

States of America and Canada and communicated to the United Nations. On

closer reading, the applicant’s criticisms of the Memorandum and of its legal value

contradict the subsequent Treaty of Osimo and indirectly reinforce the latter’s

value as shall be explained hereunder. 12.7 To conclude on this point, the real legal significance of the treaty entitled

Memorandum of London, misinterpreted by the appellant whose reasoning

renders it devoid of sense, must be reaffirmed. In fact, there would have been no sense in defining a border with some

adjustments that would condition the entire treaty if the Free Territory could still

have been established; there would have been no sense in defining a boundary

destined to be irrelevant as soon as the Free Territory would come into existence;

there would have been no sense in ratifying the validity of some of the rules

relating to the Free Port if, with the existence of a Free Territory, all the rules

relating to the port would have been operative; there would have been no sense in

defining the creation of the Free Territory as impossible if, on the contrary, such a

creation, even if postponed, was considered possible; the well-known declarations

of the United States of America, the United Kingdom of Great Britain and

Northern Ireland and France which coincided with the implementation of the

Memorandum of London would have made no sense and finally, the very

stipulation of the Memorandum of London, which came after long and laborious

negotiations, would not have made any sense if it was agreed to regulate only

temporarily the administration of the two zones pending the creation of the Free

Territory. ***** 13. At this point, it should be reaffirmed that, even if the issue has been evident

for decades, the Memorandum itself is intended to act in all aspects as an

international treaty and is thus able to modify the Peace Treaty for the reasons

mentioned above and reiterated hereunder. 13.1 First and foremost, the Memorandum concerns the boundary between Italy

and Yugoslavia, it is therefore an issue that mainly applies to only two of the

countries involved though it modifies the Peace Treaty, so the participation of the

United States of America and the United Kingdom of Great Britain and Northern

Ireland in the negotiations and signature of the Memorandum is solely due to the

fact that zone A of the Free Territory of Trieste was jointly governed and fell

under the military administration of these two countries. As seen in the case of international treaties, which obviously includes the

mentioned Peace Treaty, Articles 30, 41 and 62 of the above-mentioned Vienna

Convention (which adopts universally recognised international procedures and

customs) expressly allow for adjustments to be made by just some of the

signatories if the treaty itself does not prohibit it and if it does not prejudice in any

way the other signatories of the treaty who should furthermore be notified, as was

indeed the case, of the adjustments in question. 13.2 In other words, it is evident that the Memorandum of London mainly

concerned the boundary between Italy and Yugoslavia that had to be defined in

light of the new, ascertained fact (‘fact’ being a proved and unquestionable reality

in legal English) that the creation of the Free Territory proved impossible; the

issue of the boundary essentially only interested the other signatory countries in

aspects concerning the Free Port which were in any case exempt from the

Memorandum and the United Kingdom of Great Britain and Northern Ireland

and the United States of America only had interests in the issues that were military

in nature as they had jointly occupied zone A. Consequently, the Memorandum of London was especially in charge of, and

defended, the only part of the Peace Treaty relating to the management of the Free

Territory which concerned third-party countries, in other words, countries other

than Italy and Yugoslavia, and which concerned the issue of the Free Port which,

by its nature, was of interest to other countries of Central Europe.

Article 5 of the Memorandum is thus in general accordance with certain parts of

paragraph VIII (Articles 1 to 20) which concern the Free Port of Trieste and are

therefore binding for the Italian State. 13.3 It is therefore worth reaffirming that on the basis of the previously-

mentioned principle of effectiveness and of the “rebus sic stantibus” clause

relating to the influence on treaties of the change in the de facto situation, as

expressly considered in item 1 of the Memorandum and upon realising that the

creation of the Free Territory of Trieste was impossible, the two neighbouring

countries in question were undoubtedly permitted to modify the Peace Treaty,

notifying thereby the other countries and following the strict application of the

principles set forth in the previously-mentioned Articles 30, 41 and 62 of the

Vienna Convention and in Article 46 of the Peace Treaty itself, as has already been

illustrated in item 10.5. In other words, there was no need for an agreement between all the signatories of

the Peace Treaty concerning the elimination of the Free Territory and the resulting

new definition of the boundary between Italy and Yugoslavia. 13.4 With regard to the Memorandum of London, the text of the agreement was

acknowledged by the Soviet Union and France with a special note; furthermore,

based on item 9 of the Memorandum itself, the text was addressed to the

President of the United Nations Security Council on behalf of the four signatories

for the purpose of informing its members.

In fact, the letter from the Observer of Italy to the United Nations and the

permanent representatives of the United Kingdom of Great Britain and Northern

Ireland, the United States of America and Yugoslavia was sent to the Security

Council on 5 October 1954 (UN Doc. S/3301), in other words, on the same day

as the signature of the Memorandum.

No country expressed any objections of any kind or any request to discuss the

issue; as a matter of fact, many signatory countries of the Treaty of Paris expressed

their satisfaction with the agreement that was reached. 13.5 Thus the Memorandum of London was officially known by all members of

the United Nations, including absolutely all the signatory countries of the Paris

Peace Treaties. Notifying all the members of the United Nations also results from the application

of Articles 11, 12, 54 and 102 of the Charter of the United Nations which affirm

that the Security Council must inform all the members of the United Nations who

may ask to intervene or raise objections when said Security Council is assigned

with a relevant issue (the fact that the Free Territory was not created though the

nomination of its governor was inscribed on the agenda of the Security Council

was indeed a relevant issue). As has already been stated, no country raised any

kind of objection with regard to the Memorandum of London. 13.6 Finally, it has been documented that the government of Yugoslavia sent, in

any case and for the purpose of completeness, an official note to all signatory

countries of the Paris Peace Treaties informing the latter of the content of the

Memorandum which obviously raised no objection of any kind from anyone. In

his appeal, the appellant omits this relevant fact.

13.7 Following the Memorandum, the Governments of the United States of

America, the United Kingdom of Great Britain and Northern Ireland and France

all individually transmitted a note identical in content and dated 5 October 1954 in

which they declared that they would not support claims, whether they were Italian

or Yugoslav, with regards to territories that were subject to third-party sovereignty

or administration; this interpretation of the Memorandum set the stable and

permanent boundary and by extension the sovereignty of the two neighbouring

countries as well as the already unquestionable division of the never-established

Free Territory. Concerning the Soviet Union, in a special note dated 12 October 1954, the latter

took cognizance of the adjustments to the Peace Treaty that were expressed in the

Memorandum and which derived from the agreement between Italy and

Yugoslavia and did not contest anything but rather highlighted the contribution

this brought to the improvement of international relations. 13.8 The fundamental dispositions of the Memorandum were immediately

implemented by the contracting parties and was so stated in an official letter dated

17 January 1955 signed by the Observer of Italy to the United Nations and the

permanent representatives of the United Kingdom of Great Britain and Northern

Ireland, the United States of America and Yugoslavia to the attention of the

President of the United Nations Security Council (UN Doc S/3351).

The Italian government’s action was approved by the Senate of the Republic on 8

October 1954; the text of the Memorandum was transmitted to the presidency of

both houses of parliament. 13.9 To conclude on this point, based on evident principles generally recognised

by international law and on the treaty’s own rules (Articles 46, 86 and 87), the

Peace Treaty could be modified on the basis of a change of the de facto situation

and of the principle of effectiveness instilled in Article 62 of the Vienna

Convention of 1969, and additionally of changes brought forward by just some of

the signatories in accordance with Articles 30 and 41 of said Convention in aspects

that concern the boundary between two signatory countries and therefore that do

not fall under the special procedure set forth in Article 46 of said treaty. As previously explained, the treaty entitled Memorandum of London was

immediately applicable and operative both internally and internationally, was

recognised by the Soviet Union and France and was communicated to the United

Nations and to all the signatories of the Peace Treaty.

13.10 For purposes of intellectual honesty and in respect of history, this Panel

observes that the Memorandum of London was the subject of various ambiguities

on the part of Italy but also on the part of Yugoslavia. First and foremost, the use of the term “Memorandum” even if it is “of

understanding” is for the least curious as it is in fact a true and genuine

international treaty.

The Italian Parliament, having been informed of the content of the Memorandum

in a letter sent by the Government and having approved said content in the

Senate, never officially ratified it. This constitutes a violation to the Italian

constitutional system but does not nullify in the slightest the full international and

national value of the Memorandum.

13.11 In fact, the signature of the Memorandum of London by the

plenipotentiaries – which included Italy – was intended to be binding for the latter,

thus in light of the above-mentioned known principles which were then instilled in

the Vienna Convention (Articles 11 and 12), the Treaty was immediately

considered binding by the contracting States. Furthermore, through normative and administrative acts (including among others

various budget allocations), the Italian Government and Parliament ensured the

full and immediate implementation of the Memorandum of London, starting with

the transfer of instructions from the British commander of the Allied Military

Government to the Italian military representative, and then with the nomination

by the Italian Government of the Commissioner of the Government who was

endowed with administrative (in part still in force) and normative powers (the

latter were relinquished in 1963 through the Constitutional Law No 1 of 1963 and

attributed to sovereignty as they were different in nature to the powers of an

occupying military government). It is worth clarifying that the transfer of sovereignty over zone A occurred from

the Allied Military Government to the Italian Government where the

Commissioner of the Government was only an organ, albeit extraordinary, of the

Italian Government itself. As for the Federal Republic of Yugoslavia, the Federal Assembly ratified the

Memorandum of London on 25 October 1954, formally extending in December

of that year the Yugoslav constitution and legislation, and thus its full sovereignty,

to zone B. It should be added that, although Yugoslavia was not a Western

democracy, no Yugoslav jurist ever had any doubts about Yugoslavia’s full

sovereignty over zone B after 1954.

To conclude on the present matter, the clear legal parallels between the fates of

zone A and zone B must be highlighted. 13.12 As for the ambiguities that were hinted to, the Italian translation of the

official text of the Memorandum which was written in English contained several

inaccuracies, better yet, genuine and real errors. In fact, there are several meanings

to the English term “boundary” that repeated in the official text of the

Memorandum in Articles 2 and 3, and the term in question was translated in

Yugoslavia’s official language as “granica” or similar terms which in English would

translate to border or boundary. However, the translated and disclosed Italian text, which had no official value,

repeatedly used the term “line of demarcation” which is altogether imprecise and

misleading. The reason behind this was evident internal politics which aimed to make

segments of the Italian public opinion that were not experts and that were most

sensitive to the issue that was painfully and directly brought upon the country by

war-related events, believe that Italy could still claim zone B of the Free Territory,

even though such action was legally inadmissible.

There is another imprecision surrounding the term “administration” entrusted by

the Memorandum to Yugoslavia for zone B and to Italy for zone A. From a

systematic-logical interpretation and linked to the definition of the new boundary,

it referred to a “permanent administration” and was intended to express the

notion of sovereignty; in substance the imprecision stemmed from the “minus

dixit quam voluit” law (less was said than what was meant) as it often occurs in the

legal sphere. 13.13 It is furthermore worth reaffirming that Italy carried out the full

implementation of the Memorandum of London through concrete actions and

numerous acts of legal value, in particular with regards to the State’s boundary and

the extension of its full sovereignty over zone A. Historically speaking, certain ambiguities have also been established on the part of

Yugoslavia who, at times, claimed the possibilities of further boundary

modifications in its favour to replicate some of the improvident statements made

by Italy even though these were not made by the country’s government.

13.14 In substance, after the Memorandum and in light of its timely

implementation, Italy and Yugoslavia extended their sovereignty over zone A and

zone B respectively in an unquestionable, rapid (Yugoslavia was nearly

instantaneous in its actions) and peaceful manner and have thus sporadically,

abusively and unrealistically left an open window to possibilities of claiming the

territory assigned to the counterparty. 13.15 This Panel does not consider it by any means necessary to enter in a

grounded yet dated legal dispute concerning whether or not Italian sovereignty in

zone A between 1947 and 1954 was in fact permanent. At the time, there were two theories that addressed the issue, one supposed the

permanent sovereignty of Italy for the entire period while the other believed said

sovereignty was transferred to the Allied Military Government. Neither theories

seriously stated that the sovereignty could pertain to the inexistent Free Territory

for which the creation, as illustrated above, was implicitly but nonetheless clearly

conditioned by the nomination of a governor and which never occurred. In either case, to solve the present issue, it is sufficient to affirm that, as of the

Memorandum of London, Italian and Yugoslav sovereignty over zone A and zone

B respectively, which was accorded due to the fact that the Free Territory did not

come into existence, was evident as was the rest that was definitively set forth in

the Helsinki Accords and in the Treaty of Osimo. *****

14. Italy confirmed the fixed boundary in 1954 with numerous national and

international acts and in particular through the Constitutional Law No 1 of 1963

which established the Autonomous Region of Friuli Venezia Giulia, with Special

Statute and with Trieste as capital, obviously belonging to one Nation indivisible

and united as expressly stated in the preamble of that very law.

The territory of the region, and thus implicitly yet unquestionably, that of the

Italian State was defined as including the province of Udine (the province of

Pordenone being established only several years after), the province of Gorizia and

the six communes of the province of Trieste, listed on a nominative basis (Trieste,

Muggia, San Dorligo della Valle, Sgonico, Monrupino and Duino-Aurisina). 14.1 The fact that the mention of the Province of Trieste was expressly missing is

significant, this way the Italian State wanted to reiterate in its Constitutional Law

that the boundary with Yugoslavia was that which was established in the

Memorandum of 1954. In fact, the term “Province of Trieste” could have given rise to misinterpretations

or fuelled dangerous revanchism if we take into account the erroneous Italian

translation of the Memorandum with regard to the term “boundary”. 14.2. Concerning the Constitutional Law No 1 of 1963, the argument of the

appellant party seems legally unfounded: the applicant sustains the idea that said

constitutional law would be unconstitutional as it would violate the Peace Treaty. Apart from the fact that it seems incongruous and inadmissible to object to a

constitutional law (which, in the hierarchy of powers, comes before a law ratifying

an international treaty), there is no reason why Italy should be limited to having to

abide to the Peace Treaty of 1947 and not to the following treaties which

legitimately modified said Peace Treaty, and started with the Memorandum of

London of 1954 which the appellant party considers in his appeal to be “valid and

efficient”. In reality, and as has already been made evident, the creation of the Autonomous

Region of Friuli Venezia Giulia, with Special Statute, simply confirmed and

reinforced in various ways Italy’s sovereignty over zone A of the territory of

Trieste which was already set forth in the above-mentioned Memorandum of

London, reaffirmed the fact that the Free Territory was not created and recognised

at the same time Yugoslavia’s sovereignty over zone B. Furthermore, from the moment that said Memorandum established clear and

unquestionable parallels between the situation of the former zone A under Italian

sovereignty and the former zone B under Yugoslav sovereignty, there is no reason

why there could not and should not be parallel between Yugoslav legal acts which

peacefully extended Yugoslav sovereignty to zone B in the months following the

Memorandum and similar Italian legal acts, among which the Constitutional Law

No 1 of 1963, which had the same effect on zone A. 14.3 The boundary between Italy and Yugoslavia was confirmed in the founding

treaty of the European Community in 1957 which recognised that the territory of

the Community was the sum of each member State and thus included the Italian

territory with the boundary that was fixed in 1954 and which therefore became the

community’s outer border. 14.4 The Helsinki Accords – which were also completely ignored by the appellant

despite their unquestionable value with regard to the definitions of the European

borders – signed on 1 August 1975 by all the European countries (with the

exception of Andorra and Albania) as well as the United States of America and

Canada as a result of the Conference for Security and Co-operation in Europe,

definitively fixed the borders between the European States and therefore also

between Italy and Yugoslavia.

The Helsinki Accords did so in particular under the Declaration on principles in

item I – respect of the sovereignty of other States, item II - refraining from use of

force against territorial integrity, and above all in items III - inviolability of

frontiers (in which it is stated that “the participating States regard as inviolable all

one another's frontiers as well as the frontiers of all States in Europe”) and IV -

respecting the territorial integrity of every participating State.

As was expressly foreseen in its end notes, the Helsinki Accords were presented to

the United Nations to be circulated to all the members of the Organization, and

thus also to non-European States who did not sign the Accords as well as to the

signatories of the Paris Peace Treaties of 1947 other than Canada and the United

States of America. 14.5 It follows that, like its predecessor the Memorandum of London, the Helsinki

Accords were legally able to modify the Peace Treaty based on the principles of

the Vienna Convention of 1969 that have already been mentioned repeatedly.

***** 15. Any possible remaining doubt surrounding the boundary between Italy and

Yugoslavia was definitively resolved with the Treaty of Osimo signed on 10

November 1975 (not surprisingly, only a few weeks after the Helsinki Accords

which, in a sense, were considered implemented) which confirms and fixes the

boundary of 1954 with various clarifications concerning the maritime boundary

which, until then, had remained vague. It is worth including herein the Treaty of Osimo, in its original French version,

and pointing out that, already in its title, the Treaty refers to the delimitation for

the part not indicated as such in the Peace Treaty of 10 February 1947 and

encloses a description and a map of said delimitation. Thus the elimination (better

yet, the non-existence) of the Free Territory and its division between Italy and

Yugoslavia following the frontier line already defined in the Memorandum of

London which, as stated in Article 7 ceased to have effect, is later reaffirmed. ===== “Traité pour la délimitation de la frontière pour la partie non indiquée comme telle

dans le Traité de paix du 10 février 1947.” TRAITÉ ENTRE LA RÉPUBLIQUE ITALIENNE ET LA RÉPUBLIQUE

SOCIALISTE FEDERATIVE DE YOUGOSLAVIE

Les parties contractantes : Convaincues que la coopération pacifique et les relations de bon voisinage entre

les deux Pays et leurs peuples correspondent aux intérêts essentiels des deux Etats,

Considérant que les accords qu'elles ont conclus jusqu'à présent ont créé des

conditions favorables au développement ultérieur et à l'intensification des relations

réciproques, Convaincues que l'égalité entre Etats, la renonciation à l'emploi de la force, et le

respect conséquent de la souveraineté, de l'intégrité territoriale et de l'inviolabilité

des frontières, le règlement pacifique des différends, la noningérence dans les

affaires intérieures des autres Etats, le respect des droits fondamentaux et des

libertés, associés à l'application de bonne foi de toute obligation internationale,

représentent la base de la sauvegarde de la paix et de la sécurité internationale et du

développement des relations amicales et de la coopération entre les Etats,

Confirmant leur loyauté envers le principe de la protection la plus ample possible

des citoyens appartenant aux groupes ethniques (minorités), découlant de leurs

Constitutions et de leurs droits internes, que chacune des deux Parties réalise d'une

manière autonome, en s'inspirant également des principes de la Charte des Nations

Unies, de la Déclaration Universelle des Droits de l'Homme, de la Convention sur

l'élimination de toute forme de discrimination raciale et des Pactes Universels des

Droits de l'Homme,

Animées du désir de manifester par le présent Traité l'intention commune

d'intensifier, dans l'intérêt des deux Pays, les rapports existant de bon voisinage et

de coopération pacifique, Convaincues également que cela contribuera au renforcement de la paix et de la

sécurité en Europe,

Sont convenues de ce qui suit : Article 1. La frontière entre la République Italienne et la République Socialiste

Fédérative de Yougoslavie, pour la partie qui n'est pas indiquée comme telle dans

le Traité de Paix avec l'Italie du 10 février 1947, est décrite par le texte à l'Annexe I

et tracée sur la carte à l'Annexe II du présent Traité. En cas de divergence entre la description de la frontière et la carte, le texte fera foi.

Article 2. La frontière entre les deux Etats dans le Golfe de Trieste est décrite par

le texte à l'Annexe III et tracée sur la carte à l'Annexe IV du présent Traité. En cas de divergence entre la description de la frontière et la carte, le texte fera

foi. …omissis… Article 7. A la date de l'entrée en vigueur du présent Traité, le Mémorandum

d'Accord de Londres du 5 octobre 1954' et ses annexes cessent d'avoir effet dans

les relations entre la République Italienne et la République Socialiste Fédérative de

Yougoslavie. Chaque Partie en donnera communication au Gouvernement du Royaume-Uni de

Grande Bretagne et d'Irlande du Nord, au Gouvernement des Etats-Unis

d'Amérique, et au Conseil de Sécurité des Nations Unies, dans un délai de trente

jours à partir de l'entrée en vigueur du présent Traité.

…omissis… Article 9. Le présent Traité sera ratifié aussitôt que faire se pourra et entrera en

vigueur à la date de l'échange des instruments de ratification simultanément avec

l'Accord signé en date d'aujourd'hui concernant le développement de la

coopération économique entre les deux Pays.” ===== 15.1 It is worth reiterating that the Treaty of Osimo, which has partially been

reproduced hereabove, consequently redefines the boundary between Italy and

Yugoslavia following a partial modification of the definition as it stands in the

Peace Treaty of 1947 but confirming, in substance, with the exception of minute

details and as a simple comparison between the attached descriptions and maps

shall prove, the boundary fixed in 1954. Furthermore, the already approved and legally evident non-establishment of the

Free Territory is once again confirmed. In fact, the definitive disappearance of the

Free Territory is enough the explain the need to define the boundary between Italy

and Yugoslavia as it reads in the Treaty of Osimo and as it was not established in

the Peace Treaty.

15.2 Obviously, all the ambiguities of the Memorandum of London of 1954

(above all in the Italian version and interpretation) were definitively resolved and

in fact, one of the reasons the new treaty was drawn up undoubtedly stemmed

from the parties’ desire to eliminate any possible remaining doubt concerning the

boundaries, as well as from their desire to ratify the permanent validity of the

boundaries as fixed in the Memorandum itself. 15.3 In fact, the Treaty of Osimo was duly ratified by the parliaments of both

signatory countries, was presented to the United Nations and to its Security

Council in a special letter dated 2 May 1977 (and thus made official to all signatory

members of the Paris Peace Treaties), and was registered with the United Nations;

consequently, Yugoslavia and Italy jointly asked the Security Council to remove

the issue of the nomination of the governor of the Free Territory of Trieste (and it

was so done) from the agenda (where it had been for decades); this action

confirmed once again and definitively so, the disappearance and inexistence of the

Free Territory. 15.4 Concerning the Treaty of Osimo, the appellant supports in his appeal the idea

that said Treaty could not modify the Paris Peace Treaties with regard to the Free

Territory as it was only signed by Italy and Yugoslavia, and adds that the

suppression of the Memorandum of London according to Article 7, having effect

only between the parties, would not undermine the validity of the Free Territory.

The argument of the appellant is thus, in all evidence, devoid of any legal grounds.

In fact, as has already been stated, the Paris Peace Treaties could legitimately be

modified by an agreement made between two signatory countries, such as Italy

and Yugoslavia, concerning their own boundary; this already occurred with the

Memorandum in 1954 and, a fortiori, with the Treaty of Osimo. The latter expressly deals with the boundary between Italy and Yugoslavia for the

part not indicated as such in 1947 and thus the elimination of the Free Territory,

better yet, the realisation of the non-establishment of the Free Territory, is an

obvious and unavoidable logical and legal prerequisite for this. The only part of the Peace Treaty concerning the Free Territory but not the issue

of the boundary between Italy and Yugoslavia, and which therefore concerned

countries other than Italy and Yugoslavia was the regime of the Free Port of

Trieste which was actually expressly protected by the Memorandum of London of

1954, in Article 5 and implicitly by the Treaty of Osimo, which in its Article 7

annulled the Memorandum of London with regard to the bilateral relations

between Italy and Yugoslavia in a way that maintained Article 5 of the

Memorandum on the Free Port. 15.5 Stating – as the appellant sustains – that the Treaty of Osimo would not have

taken into account the existence of the Free Territory suggests denying the

evidence, which is apparent from a simple reading of the Treaty itself, that the

delimitation of the boundary between Italy and Yugoslavia foreseen in the

previously mentioned Treaty of Osimo includes and implies the disappearance of

the Free Territory.

15.6 This Panel must also observe that the Paris Peace Treaties’ main scope was –

as its name implies – the restoration of peace after a terrible war. Within such a

context, the subsequent and above-mentioned treaties, the Memorandum of

London, the Helsinki Accords and the Treaty of Osimo modify the Paris Peace

Treaties and definitively fix the boundary between Italy and Yugoslavia and set

forth the disappearance of the Free Territory, even the mere possibility of its

existence. As historians of law know all too well, in this part of Europe that lies at the

crossroads between the Slavic, Germanic and Latin worlds, putting in question

boundaries and leaving ambiguities in the issue of borders does nothing more than

sow the seeds of future conflict.

In this sense, the three cited treaties that modify the aforementioned Paris Peace

Treaties are lawfully considered as peace treaties and treaties for the peace. 15.7 In other words, after the Memorandum of London, the Helsinki Accords and

the Treaty of Osimo, the boundary between Italy and Yugoslavia (today Slovenia)

was considered legally evident and unquestionable just like the never-established

Free Territory is no longer a subject of legal interest but a matter for historians to

analyse.

***** 16. Even after the Treaty of Osimo, numerous international acts ratified, better

yet, confirmed, the boundary between Italy and Yugoslavia and, after the latter's

breakup, between Italy and Slovenia; among the many, the treaties on Cross-

Border Cooperation, the Central European Initiative and the treaties addressing

issues pertaining to the military and to public security can be recalled.

16.1 It is particularly worth signaling Slovenia's accession to the European Union,

which confirmed the inviolability of the existing boundary with Italy, and the

subsequent agreements concerning Slovenia's accession to the Euro Zone and in

the Schengen area. 16.2 Finally, it is worth mentioning the recent treaty concerning Croatia's

accession to the European Union as the country in question has its own

sovereignty over a considerable part of what was previously zone B; the treaty

took effect on 1 July 2013 and sets forth, once again, the disappearance, better yet,

the fact that the Free Territory was never created, and contextually defines the

boundary between Slovenia and Croatia. 16.3 For thoroughness purposes, the Panel, must take-charge of a legal text which

the appellant refers to – which was not mentioned in the application originating

proceedings and which was only presented in a written submission dated 18

September 2013 (final page) – according to which the recognition by the

international community and Italy of the two countries born from the breakup of

Yugoslavia, as well as Slovenia and Croatia's accession to the European Union

would have ratified the sovereignty of these two countries over zone B whereas in

the meantime, Italy's sovereignty over zone A was by no means claimed. 16.4 Firstly, it is worth affirming that the appellant's new argument, presented for

the first time in the written submission dated 18 September 2013, is clearly

contradictory with the content of the application originating proceedings, with a

mutate libel contained in the written submission which was not served and which

is therefore inadmissible. In fact, as it is known, objections presented in written

submissions that are not served to the counterparty because they are new and not

connected with the arguments expressed in the application originating

proceedings, consequently violating the time limits and the principal of hearing,

are inadmissible as the only purpose of the defending written submission is to

merely explain the previous grounds for appeal with no possibility to broaden the

scope of the main issue (unanimous case-law, refer to Council of State Section IV

of 26 March 2013 No 1715 and Regional Administrative Court of Puglia - Lecce

18 September 2013 No 1936). 16.5 This being said, the legal argument in question is paradoxical and erroneous;

when a country is recognised by another country, the recognition of the borders

and thus of the sovereignty are always mutual. The same reasoning is valid for the accession treaties to the European Union of

Slovenia and then of Croatia which do not limit themselves to recognizing the

borders and the sovereignty of the two adhering countries but also imply a mutual

recognition of the respective borders, territories and sovereignty of the adhering

States as well as those of the States that are already part of the European Union

and which include among others, Italy, a founding member of the European

Community. 16.6 It is then worth noting a factual element that was ignored by the appellant: a

few months before it was recognized by Italy, Slovenia officially informed Italy

that as a successor of Yugoslavia, Slovenia recognised that the Treaty of Osimo

validly and efficiently defined the boundary between Italy and Yugoslavia and

therefore with its successor Slovenia following the disappearance and division of

the former Free Territory. With particular satisfaction, Italy officially took note of

Slovenia's note. 16.7 It is also worth affirming, though this seems evident and obvious, that Italy's

recognition of the Slovene State clearly implies the recognition of its boundary

with Italy and clearly not with an inexistent entity like the Free Territory or a res

nullius. Borders are such because they delimit the territories of two fully sovereign

countries that are located within these boundaries.

16.8 The appellant's attempt to break the evident legal parallels that exist between

the fates of zone A and zone B not only contradicts the Peace Treaty, the

Memorandum of London, the Helsinki Accords and the Treaty of Osimo but it

also seems to radically contradict the very premises and content of the application

originating proceedings, which states – erroneously so – the existence of the Free

Territory within the borders set by the Peace Treaty and its annexes, as well as

with items 2 and 3 of the conclusions of the application originating proceedings

itself. The legend prepared by the appellant of the map annexed to the appeal (document

No 1) expressly states that the Italian administration over zone A, but also the

Slovene and Croatian administration over zone B, is temporary.

As for the rest, the appellant states that the Memorandum of London would only

be valid for the purpose of temporarily and provisionally entrusting Italy with the

administration of zone A and Yugoslavia with the administration of zone B

without prejudice to the existence of the Free Territory, putting the two

administrations and the legal fates of the two zones on the same level and

considering them jointly as the Free Territory; this clearly contradicts the attempt

to sustain Italy's lack of sovereignty over zone A and, at the same time, Slovenia

and Croatia's supervening sovereignty over zone B. 16.9 Furthermore, the appellant continuously insists throughout the entire appeal

that the Peace Treaties of 1947 would require the agreement of all its signatories

for any modification and in particular for modifications that concern the Free

Territory; additionally, in the written submission dated 18 September 2013 the

same appellant claims, and thus contradicts himself, that the dispositions of the

Peace Treaties concerning the Free Territory were modified, with regard to the

sovereignty over zone B, by the accession treaties of Slovenia and Croatia to the

European Union – treaties which obviously were by no means signed by all the

signatories of the Paris Peace Treaties or even recognised by Italy or other

countries of said Peace Treaties, even if such recognition would clearly not be

considered a treaty or an equivalent thereof.

As the emerging contradiction is as clear as daylight, it is worth mentioning the

Latin brocard “ex ore tup te iudico” (out of your own mouth will I judge you).

16.10 To conclude on this point: once the premise of the appeal asserts that the

Free Territory legally exists within its boundaries that were established in 1947,

one can conclude that this existence is supported throughout the whole appeal. If

modifications and suppressions are not possible, such is the case for every

subsequent treaty and a fortiori for any given diplomatic recognition under penalty

of denying the principal premise and destroying the logic of the entire legal

reasoning.

In other terms, if it is true that the Peace Treaty cannot be modified without the

unanimous approval of all its signatory members then Slovenia and Croatia

wrongly acquired sovereignty over zone B on the basis of a treaty signed by only

some of said signatory countries; if however it is true that such sovereignty is valid

then it is false to say that a unanimous approval to modify the Paris Peace Treaties

is necessary. According to the rules of Aristotelian logic, tertium non datur (no

third possibility is given). ***** 17. In his appeal, the appellant deduces the existence of the Free Territory (pages 2

and 3 of the appeal) based on a memorandum from the United States Department

of State dated November 1967. However the appellant’s theory is legally inconsistent.

In fact, it is hard to see what legal significance the internal act of a State other than

the sovereign States of Italy and what was then Jugoslavia but is now Slovenia and

Croatia, may have. Furthermore, the document, which is completely irrelevant,

dates back to 1967 before the drafting of the Helsinki Accords and of the Treaty

of Osimo.

17.1 Thus it does not appear that the United States of America, or for that matter

any State in the world, or any international organisation – UN included – has ever,

on any occasion and in any location questioned the boundary between Italy and

Yugoslavia nor the current boundaries between Italy and Slovenia and between

Slovenia and Croatia and even less so the sovereignty of these States within these

very boundaries. The tacit will of the signatory States of the Paris Peace Treaties, which was in place

for decades, can only be interpreted as their full agreement with the modifications,

of which they all had legal knowledge of, that were made to the Paris Peace

Treaties by the Memorandum of London and the Treaty of Osimo.

17.2 Finally, though mentioned in the appeal, no rebuttal is necessary concerning

the obvious inconsistency surrounding the references of information contained in

several American web sites. In fact it seems curious that while the appellant does

not consider numerous international treaties relevant and considers the entire

Italian legislation operating in the Province of Trieste to be “null”, he gives legal

importance to internal statements that have no official character and are issued by

countries, such as the United States of America, that are not directly involved in

the issue. ***** 18. Another argument presented in the appeal (in page 3) is the nomination of the

governor of the Free Territory of Trieste under item 6 of the agenda of the United

Nations Security Council of 22 August 1972. Aside from the fact that it is unclear how it may be of greater formal significance

than what is stated in the Memorandum of London, established prior to the

mentioned date, and in the Treaty of Osimo and the Helsinki Accords (both

emerging at a later date) which were all communicated to the Security Council and

presented to the United Nations, the argument seems excessive. In reality, the nomination of the governor of the so-called Free Territory remained

on the agenda for many years after 1947 until it was definitively expunged from

the agenda of the Security Council meetings in 1977 at the joint request of Italy

and Yugoslavia following the ratification of the Treaty of Osimo in 1975. If the appellant’s reasoning were founded as well as convicing, though obviously in

contradiction to his theories, it would present the undisputable fact that the

nomination of the governor was never placed on the Security Council’s agenda

after 1977.

The argument therefore does not only seem legally weak, it also goes against the

appellant’s theory. 18.1 In the written submission dated 18 September 2013, the appellant recalls and

presents a note written in 1974 by the United States Department of State

addressed to the American embassies in Rome and Belgrade and the American

consulates in Trieste and Zagreb instructing the representatives of the United

States of America to abide to the declaration of 5 October 1954 issued in parallel

to the signature of the Memorandum of London, previously mentioned in item

13.7, and which stated that the United States of America would never have

supported any claims made by Italy or Yugoslavia over each other’s territories.

This was followed by the instruction according to which the United States of

America should not take a position concerning the existence or any issue

surrounding Trieste and finally the note claims the potential legal stability of the

Free Territory. Now, such internal American instructions have no legal value and certainly cannot

constitute an authentic interpretation of the Peace Treaties and even less so of the

Memorandum of London as the appellant asserts. In fact, as is known, authentic

interpretations must take the same form and the same source as the act they

interpret to have any legal value. The need to identify the source in order to give

an authentic interpretation has always been repeated by a known, fixed law (among

the many, see decision No 159 of 27 June 2012 of the Italian Constitutional

Court). In the case in question, an internal act produced by only one of the signatory

States of an international treaty cannot have any value of authentic interpretation

of the treaty in question. To give any legal importance to a diplomatic note means ignoring the often

instrumental role of diplomatic negotiations and of contacts between parties in the

preparatory phase of negotiations. In fact, the note dated April 1974 was produced as the negotiations between

Yugoslavia and Italy, which led to the 1975 Treaty of Osimo which defines the

boundary between Italy and Yugoslavia in amendment to the Peace Treaties,

began. It was evidently in the United States’ interest to push the parties to

conclude the treaty respecting the boundary fixed by the Memorandum in 1954

while the supposed stability of the Free Territory only constituted a skilful

incentive to draw up an agreement to premanently ratify its disappearance.

The appellant then overlooks an important element which explains the content of

the text and its diplomatic stretches and trickeries: the subject of the note is

“Trieste – zone B dispute”, in other words “Trieste – dispute over zone B”, which

proves that, at the time, it was the Italian claims over Koper that were being

discussed and not the fate of zone A. Furthermore, the note recalled in the appeal unquestionably shows the legal value

of the Treaty of Osimo that originated from the ongoing negotiations at the time

and that, as already proven, definitively ratified both the disappearance of the Free

Territory and the full sovereignty of Italy and Yugoslavia over the two zones of

said Free Territory.

18.2 Still concerning the written submission dated 18 September 2013, the

appellant mentions and presents a note dated 20 May 1983, drafted by the United

Nations and addressed to Mr Marchesich, a nationalist representative from Trieste,

who had asked for exaplanations concerning the removal of the nomination of the

governor and of the issue of the Free Territory itself from the agenda of the

Security Council. The answer states that the removal took place at the joint request of the two

permanent representatives of Italy and Yugoslavia to the United Nations in 1977.

In his answer, the official also adds that the reexamination of the issue would

require the inititative of a Member State of the UN.

For the reasons already stated in item 18.1, this letter obviously does not have any

legal value and even less so any value to authentic interpretation. Furthermore, the note undermines the appellant’s appeal as it shows that, after the

ratification of the Treaty of Osimo, the issue of the Free Territory and the

nomination of its governor was no longer topical as Italy and Yugoslavia agreed on

dividing the territory between each other.

Reading the last sentence of the letter which reaffirms, as already set forth by the

known rules of the United Nations Security Council, that an issue may only be put

on the agenda at the request of a Member State and no other does not, in any way,

mean that the issue of the Free Territory was and still is open to discussion and

even less so, that the Treaty of Osimo has no legal value. Interpreting this

sentence differently would betray its meaning and be a figment of imagination. ***** 19. Case law has nearly unanimously confirmed the theories presented in the

present judgement.

Standing out among the past rulings that state that the Free Territory did not come

into existence are the Italian Court of Cassation en banc civil appeal sentence No

659 of 15 March 1951; the Italian Council of State sentence No 579 Section V of 7

Octobre 1953; the Italian Court of Cassation sentence No 3288 Section I of 9

Octobre 1953. 19.1 Appearing after the Memorandum of London, and still concerning the

inexistence of the Free Territory are Italian Court of Cassation en banc criminal

case dated 24 November 1956 and the Italian Court of Cassation, I Civil Division,

sentence No 2290 of 7 October 1967. 19.2 For the purpose of accuracy, it should be recalled that some isolated and past

rulings, among which the Italian Council of State sentence No 24 of 1961, have a

limited interpretation of the Memorandum of London and make reference to its

erroneous Italian translation instead of referencing the original English text;

furthermore, these rulings were issued in a context in which, as previously

mentioned, Italy sometimes expressed its desire to claim zone B. Moreover, the

above-mentioned judgment would seemingly only be of use to the appellant’s

theories according to a reasoning that gives value to Italy’s non-ratification of the

Memorandum, as it confirms, in an indirect manner, the full forcefulness and

validity of the subsequent Treaty of Osimo which was duly ratified and which set

forth the disappearance and definitive division of the Free Territory.

19.3 For the purposes of importance and authority, the sentence No 53 of the

Italian Consitutional Court of 23 July 1964 which states that as of the

Memorandum of London there are no more doubts concerning Italy’s sovereignty

over zone A, which is furthermore confirmed in the Constitutional Law No 1 of

1963, should be recalled. 19.4 After 1975 and following the signature of the Treaty of Osimo, all judicial

rulings, particularly those that are most recent and complete, have confirmed

Italy’s absolute sovereignty over zone A. At this point, recalling the sentence No 2677 of 2009 of the Regional

Administrative Court of Lazio which concerns the legal regime of the Free Port of

Trieste is sufficient to establish that the Memorandum of London of 1954

reinstated Italian sovereignty in the region of Trieste.

This ruling is entirely confirmed by the Italian Council of State through the

sentence No 2780 of 2012 which recalls, with regard to Italian sovereignty, both

the Memorandum of London and the Treaty of Osimo. 19.5 Throughout 2013 there have been several rulings, including some preemptive

ones, issued by the Provincial Tax Court of Trieste and that went in the same

direction; among these, it is sufficient to mention the judgement No 269/02/13,

Section II, of the Provincial Tax Court of Trieste delivered on 29 August 2013. Finally, with regard to the proceedings No 1888/13 the Civil Court of Trieste

pronounced the judgement of 3 July 2013, reaffirming Italy’s full sovereignty over

the province of Trieste as of 1954 and stating arguments similar to those

contained in the present judgement. 19.6 In the written submission deposited on 18 September 2013, the appellant

criticises all recent judgments on the subject, whether in an administrative court or

in a court of law, including the judgement No 400 of the Regional Administrative

Court of Friuli Venezia Giulia dated 2013 which the appellant defines as

“untenable”; in addition to the responsibility that such a statement entails, the

petitioner does not succeed in dissimulating the fact that all these judgements have

been to his disadvantage.

***** 20. This Panel must also highlight the fact that various glaring legal inconsistencies

arise in the arguments of the appellant’s appeal: indeed, the appellant makes only

partial references to sources of law and ignores entire, decisive parts. In fact, as explained above, the appellant demonstrates his knowledge of the parts

of the Peace Treaty of 1947 that concern the Free Territory, even if the intrinsic

nature of a paracolonial state under external care is by not means understood, but

does not even refer to Article 46 of this very treaty which allows for a legitimate

modification by some of the signatory states as did indeed occur with the

Memorandum of London, the Helsinki Accords and the Treaty of Osimo. With regard to the Memorandum of London, the appellant defines it as a bilateral

agreement (page 2 of the appeal) whereas the signatories were actually four and

furthermore he only mentions the part that refers to the administration of zone A

and zone B respectively entrusted to Italy and Yugoslavia but ignores the assumed

and logically founded part of Article 1, which asserts the impossibile of creating

the Free Territory, and Articles 2 and 3 which consequently define the new

boundary between Italy and Yugoslavia. 20.1 As for the Treaty of Osimo, the applicant fails to mention in any way the

definition of the boundary between Italy and Yugoslavia “for the part not

indicated as such in the Peace Treaty”, therefore for the parts that derive from the

disappearance of the Free Territory; by doing so, the appellant ignores the heart of

the treaty itself which is mentioned in the treaty’s introductory paragraphs and title

and which constitutes the legal essence and the very raison d’être of the treaty. Concerning the Vienna Convention of 1969, the appellant cited Articles 61 and 62

(though erroneously interpreting them) but makes absolutely no mention of the

equally as important Articles 30 and 41 and in doing so, ignores the decisive fact

that the convention in question explicitly permits a modification of multilateral

agreements to be made by only some of the signatories.

The legal inconsistency of the appellant is yet further evident as the appeal fails to

mention both the Treaty of 1957 instituting the European Community and the

essential Helsinki Accords. 20.2 Furthermore, apart from Article 10 (which, strangely, would only apply to the

Paris Peace Treaties and not to the Memorandum of London, the Helsinki

Accords or the Treaty of Osimo), references to the Italian Constitution, including

the parts that set forth the territorial integrity, unity and indivisibility (Article 5),

that concern the defense of peace (Article 11) as well as Article 52 are missing

from the appeal. In other words, the appellant has focused on the details without taking into

consideration the big picture.

***** 21. Additionnally, the appellant makes an obvious mistake of point of view in the

arguments that are illustrated in the appeal and that are proven to be legally

unfounded.

Indeed, upon close reading, the appellant considers the Peace Treaty of 1947 to be

unmodifiable without the agreement, which would be unfeasible, of all the

victorious countries as if this condition was cristalised and set in stone, yet at the

same time he ignores or considers irrelevant – and not only from a legal point of

view – the events that occurred in the subsequent decades.

The appellant basically adds to the issue in discussion the question of the territorial

integrity and sovereignty of three allied States that are part of the European Union:

Italy, Slovenia and Croatia.

21.1 In this respect, it should be stated that the democratic consititutions of

Slovenia and Croatia, like the Italian Constitution, consider the State’s territorial

integrity to be a fundamental principle and besides, nobody in these two countries,

at any occasion, ever legally contested the sovereignty of these two countries over

what was previously zone B. 21.2 For the mere sake of thoroughness, this Panel intends to examine item 11.2

of the written submission deposited by the appellant on 18 September 2013 in

which the appellant mentions a lack of the will of the people concerning Italian

sovereignty over zone A that could not be substituted by street riots or elections of

another purpose. This court fully agrees with the appellant with regard to the lack of legal

significance of the street demonstrations of 1953 as well as those of 2013 which

were, among others, numerous in nature and of diverging orientations. 21.3 As for the people’s will, it should be affirmed that the Italian Constitution and

the other current European constitutions do not allow for any legal possibility of

secession, therefore however expressed, the will of the people is not relevant in

this issue. Outside the European context, only two federal countries accept the secession of

a member state: Malasia and Ethiopia.

***** 22. Considering the legal issue from a broad perspective and considering the

proven groundlessness of the legal arguments presented by the appellant and

intervening parties, several key points must be made: the territory of Trieste is

unquestionably under Italian sovereignty, Koper (Capodistria in Italian) is

unquestionably under Slovene sovereignty and Novigrad (Cittanova in Italian) is

unquestionably under Croatian sovereignty.

A factual and signficant information should be added to the legislative and official

information examined and presented hereabove, namely the undisputed and

uncontested excercise of Italy's sovereignty over zone A as of 1954 which, based

on the previously mentioned principle of effectiveness that is recognised by

international law, offers in itself a valid legal basis to the sovereignty of a State.

Similarly, Yugoslavia fully excercised its sovereignty over zone B for decades in the

same way that the two States that made up Yugoslavia, Slovenia and Croatia, do so

today. It is actually a common report, documented and easily verifiable: in this case, res

ipsa loquitur.

22.1 The fact that the borders within the European Community may be crossed,

which is certainly preferred in a situation of peace, implies and supposes that these

borders are permanent and internationally recognised. With the adoption of the Euro and with the implementation of the Schengen

agreements in particular, it is now possible to travel from Muggia to Cascais

without a passport, without crossing controled borders and using the same

currency. This would not be possible if – as the appellant would so want it –

borders where reinstated along the Timavo and Mirna rivers and the Karst Plateau. 22.2 The creation of a peaceful and prosperous transnational and transborder

community in this area of Central Europe, which represents a crossroad of

cultures, is obviously a serious desire that should be pursued, that is legally set

forth in various international agreements and that would certainly have been

compromised and undermined from the very first day if a semi-colonial state with

limited sovereignty like the former Free Territory, which by its nature and

structure heralded tensions and infinite disputes, established by the Paris Peace

Treaties of 1947 had been instated. ***** 23. Considering the intrinsic and decidedly subversive nature of the appellant’s

appeal (sustained with conviction and intelectual honesty by the applicant), this

Panel is compelled to examine certain matters of principle. As is known in Western liberal democracies such as Italy, which both the appellant

and the intervening parties are free citizens of, freedom of opinion and expression

is, among other types of freedom, granted. Consequently, even unfounded,

historically fictitious legal arguments, like those presented in the present appeal,

may be freely and peacefully expressed.

23.1 Additionally, like any type of freedom, even the freedom of opinion and

expression must always be synonymous of responsability as it must be exercised

within the limits of the law and can never go beyond the limits of respect for

diverging opinions, citizens and institutions. It is this very respect that the

appellant and intervening parties had also requested for themselves during the

public hearing. As a mere example, it would therefore not be very respectful to

state publicly or through the press that a judgement that is not appreciated (but

obviously still criticisable and arguable) is in fact a “legal monster”. Furthermore, in no democratic country is it accepted to use freedom of expression

to incite to the commission of offences, including offences that are fiscal in nature,

and unlawful behaviour (see Articles 414 and 415 of the Criminal Code) or to

directly commit offences such as, for example, the offence of taking advantage of

the people’s credulity (Article 661 of the Criminal Code). 23.2 In all cases, without prejudice to the fundamental rights, a democratic and

sovereign State is certainly not a powerless entity, therefore it has the right and the

duty to react according to the law but also to the full-extent of the law any time the

fundamental principles upon which it is founded are questioned or any time the

very safety of the State is in danger.

A State’s fundamental principles obviously include its sovereignty and territorial

intergrity which are reaffirmed in every court.

In other words, a sovereign and democratic State, precisely because it is sovereign

and democratic, must use the law to impede he who does not recognise the State’s

law and who places himself outside the law. Besides being applicable for Italy, this

is also applicable for the two democratic, neighbouring and allied countries,

Slovenia and Croatia, whose sovereignty and territorial integrity would be

undermined if a ghost state like the Free Territory were to be reinstated as the

appellant so advocates. ***** 24. This Panel, charged with the issue of the Free Territory, must put the attempt

to evoke the ghost of a pseudo-state, which was never established and considered

unacceptable from an international and national legal point of view for decades, in

a historical and legal context as does the appellant himself in the introductory

appeal, in page 4 of the written submission deposited on 23 July 2013 and finally in

the written submission deposited on 18 September 2013. 24.1 The Administrative Court of Friuli Venezia Giulia, aware that it operates in

an area that has considerably suffered from the past due to disputes surrounding

boundaries or cruel wars that occured against the tragic backdrop of dictatorships,

murders, retaliations, persecutions of minorities, foibe killings, bans on speaking

the mother tongue, ethnic cleansing, crematoriums, mutilations, destructions of

cultural sites, blood-stained Alpine cottages, mass exodus, forced changes of last

names, shootings, profanations of tombs and churches, internment camps and

concentration camps, burned villages, violences against women and church clergy,

refugee camps, exiles, crowd shootings and other numerous heinous crimes, feels

that it has the duty to state that, in the law of the Italian democracy, the utmost

respectful attention and the due legal arguments are presented to whoever would

want to open, potentially unconsciously and with intial good intentions, Pandora’s

box of territorial disputes that have long been settled according to the desire of

peace expressed by all the populations of this zone. 24.2 This certainly does not mean that the past and the injustices that were

suffered and committed should be forgotten but it means that they should be

transcended with a spirit of tolerance and harmony that reflects, as a famous

Italian author who knows well this bordering region as well as the supreme value

of the law once said, the true and profound nature of the people of Centreal

Europe.

***** 25. To summarise succinctly and conclusively, the so-called Free Territory of

Trieste has never existed and does not presently exist.

Its abstract conception, which came into being through the Paris Peace Treaties of

1947 but was never established, was expressly and legitimately revoked by other

international treaties including the Memorandum of London of 1954, the Helsinki

Accords of 1975 and the Treaty of Osimo of 1975, and with provisions that were

confirmed by numerous other international agreements. 25.1 Calling into question decades later the territorial integrity and sovereignty of

three allied countries, Italy, Slovenia and Croatia, is legally unfounded and

anachronistic as well as dangerous for the conservation of peace which is itself the

main legal value set forth by the Constitution of the Italian Republic and by the

constitutions of the other countries member of the European Union which include

those of Slovenia, Croatia and Austria, by the European treaties and finally by the

Charter of the United Nations. 25.2 For all the reliable reasons indicated above, the present appeal, filed by an

Italian citizen and supported by an ad adiuvandum intervention (considered

inadmissibile as indicated in item 3) of other Italian citizens, is hereby partly

rejected and partly declared inadmissible. Following the well-established principle, the legal costs shall be borne by the

unsuccessful party and the intervening parties and shall be as determined in the

operative part of the judgment.

On these grounds

The Regional Administrative Court of Friuli Venezia Giulia (Division One) has

ruled that the appeal presented in the introductory paragraphs is partly

inacceptable and partly inadmissible, as set out in the grounds. The court orders the appellant and the intervening parties to reimburse the Italian

State and the Region of Friuli Venezia Giulia the legal costs and fees amounting to

a total of 9,000 (nine thousand) euros to be divided equally between the

respondents at 4,500 (four thousand five hundred) euros each. The fees fixed at 5,000 (five thousand) euros shall be borne by the appellant.

The remaining 4,000 (four thousand) euros shall be at the expense of the

intervening party, to be jointly paid. The sums indicated are subject to ancillary charges where applicable by law.

The court orders that the present judgement be carried out by the administrative

authority.

As decided upon in chambers in Trieste on 9 October 2013 with the intervention

of judges:

Umberto Zuballi, Presiding Judge

Enzo Di Sciascio, Judge (Consigliere)

Oria Settesoldi, Judge (Consigliere)

THE PRESIDENT AND REPORTING JUDGE

DEPOSITED WITH THE REGISTRAR

ON 28/10/2013

THE REGISTRAR

(Article 89, Section 3 of the Italian Code of Procedure)