Assistance may be refused:
(a) if the request concerns an offence which the requested Party considers a political offence, an offence connected with a political offence, or a fiscal offence;
(b) if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, ordure public or other essential interests of its country.
1. Any Contracting Party may, by a declaration addressed to the Secretary General of the Council of Europe, when signing this Convention or depositing its instrument of ratification or accession; reserve the right to make the execution of letters rogatory for search or seizure of property dependent on one or more of the following conditions:
(a) that the offence motivating the letters rogatory is punishable under both the law of the requesting Party and the law of the requested Party;
(b) that the offence motivating the letters rogatory is an extraditable offence in the requested country;
(c) that execution of the letters rogatory is consistent with the law of the requested Party.
2. Where a Contracting Party makes a declaration in accordance with paragraph 1 of this article, any other Party may apply reciprocity.
(i) There is no dispute. I do not agree for the reasons set out above.
(ii) Italy is not the proper respondent in this case. Panama contends that the detention of the M/V "Norstar" was based on an order given by Italy, not by Spain.
(iii) Panama failed to appropriately pursue the settlement of the dispute by negotiation in accordance with article 283, paragraph 1, of the Convention.
In construing an ongoing Act the interpreter is to presume that Parliament intended the act to be applied at any future time in such a way as to give effect to the true intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred since the Act's passing, in law social conditions, technology the meaning of words and other matters. An enactment of former days is thus to be read today in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation year in and year out; it also comprises processing by executive officials (Bennion on Statutory Interpretation, 5th edition 2008, p. 887 ).
The question is: if a State applies an article incorrectly, would this create a link to article 300 of the Convention? Article 300 reads:
States parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognised in this Convention in a manner that would not constitute an abuse of right.
In my opinion, article 300 is applicable because Italy infringed the right of the M/V "Norstar" by the incorrect application of article 33, paragraph 1 (a), of the Convention, thereby infringing the right of the M/V "Norstar" set out in article 87 of the Convention.
1. In the exclusive economic zone, all States, whether coastal or landlocked, enjoy, subject to the provisions of this Convention, the freedoms referred to in article 87 of navigation and... other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships. and compatible with the other provisions of this Convention.
In any system of law, a situation may very well arise where the court considering a case before it realizes that there is no law covering exactly that point, neither parliamentary statute nor judicial precedent. In such instances the judge will deduce a rule that will be relevant, by analogy to existing rules or directly from the general principles that guide the legal system, whether they are referred to as emanating from justice, equity or considerations of public policy (Malcolm N., Shaw International Law, Fourth edition, p. 77).
The jurisprudence of the ICJ on issues of estoppel and limitation of time for filing an action for damages is not very clear or conclusive.
1. The Court, whose function is to decide in accordance with international Law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Subject: Republic of Panama/Republic of Italy, Proceedings before the International Tribunal for the Law of the Sea based in Hamburg, for the compensation of the damages caused by the ongoing detention of the M/V Norstar as a result of a precautionary order requested by the Italian & W/5, G. (Savona), carried out in the port of Palma de Mallorca (Balearic Islands, Spain) for having supplied gasoil to mega yachts in international waters off the Ligurian Sea.
I take note that to date your Ministry has still not answered to our application dated 15/8/2001.
Therefore, you are herewith informed that, on the expiry of 21 days from the date of this letter, we will institute proceedings before the competent Court of Hamburg without any further notice.
(a) 25 September 1998: the M/V "Norstar" was seized as a corpus delicti;
(b) 15 August 1999: Mr Carreyó, by letter, asked the Italian Government to lift the seizure of the M/V "Norstar" "within a reasonable time";
(c) On 7 and 6 June 2002, in letters bearing those dates, Mr Carreyó reiterated his requests for the seizure to be lifted;
(d) 13 March 2003: the learned judge at first instance in the criminal court acquitted all the accused of the charges made against them and ordered the release of the M/V "Norstar" ;
(e) 18 March 2003: the Public Prosecutor appealed against the acquittal of the accused only, not against the release of the M/V "Norstar" ;
(f) 25 October 2005: the appeal was dismissed;
(g) 17 April 2010: Mr Carreyó wrote to the Italian Minister of Foreign Affairs, reiterating the facts and seeking compensation for the damages caused by the illegal arrest of the M/V "Norstar".
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