Solidarity in International Law: Challenges, Opportunities and The Role of Regional Organizations

371 Pages·2022·5.256 MB·English

by  Leonardo Pasquali

The principle of solidarity is particularly important now because it is in
juxtaposition to some current self-centered trends in politics: the crises
that have upset the world in recent years, such as migrations, hegem­
onic aspirations, pandemics, and wars, have made self-evident the inad­
equacy of such selfish politics. It therefore seems very useful to under­
stand the role that solidarity could play in contemporary scenarios. This
book thus collects various contributions on the principle of solidarity in
international law. Firstly, it reconstructs the foundations of solidarity in
law and investigates the origins of the principle. Subsequently, it tries to
ascertain if solidarity exists as a principle in international law and, if so,
what its scope is. The book then examines the eventual implementation
of the principle of solidarity in regional organizations law: the question
is whether solidarity is more effective and if it is actually better fulfilled
when relationships between states get stronger, such as in regional and
sub-regional organizations. Such implementation is notable in EU Law,
but the analysis also involves other regional and sub-regional organiza­
tions, namely the African Union, ECOWAS, the League of Arab States,
and MERCOSUR. This book takes into account not only some distinc­
tive areas of solidarity, such as migration law, or specific institutional
contexts where solidarity is a declared principle, objective or value,
for example, the European Union, but it also considers whether, and to
what extent, the manifestations of solidarity differ in disparate settings,
trying to discover the reasons behind such divergences.
The book will be of interest to researchers and academics in the areas
of International Law, International Organizations Law, European Law,
Human Rights Law, Business Law, and Constitutional Law.
Leonardo Pasquali is Associate Professor of International Law at the
University of Pisa, Italy. He is currently the Leader and Academic Co­
ordinator of the “Solidarity in EU Law” Jean Monnet Module. He is
a member of the Academic Board of the PhD Programme in Law and
a member of the PPGD (mestrado e doutorado) Programme in Law
at the Catholic University of Pernambuco (UNICAP), Brazil; addi­
tionally, he is a member of the Editorial Committee of European and
Latin-American academic journals. He has been member of numerous
national and international scientific projects in recent years. He has au­
thored almost 50 publications in English, French, Italian, and Spanish
in leading peer-reviewed journals and in edited collections on various
International Law and EU Law topics. He is the author of three books
and co-editor of one. He has been an invited speaker to a number of
conferences and workshops, both in Italy and abroad, in particular in
Europe and in South America, and he teaches/has taught International
Law, EU Law, International Humanitarian Law, International Judicial
Cooperation, and International Organizations Law. Leonardo Pasquali
is a Founding Partner at Studio Legale Pasquali.

Solidarity in International Law

Challenges, Opportunities

and The Role of Regional Organizations

Solidarity in International Law

Challenges, Opportunities

and The Role of Regional Organizations

Edited by

Leonardo Pasquali

G. Giappichelli Editore
First published 2023
by Routledge
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and by Routledge
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Routledge is an imprint of the Taylor & Francis Group, an informa business
and by G. Giappichelli Editore
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© 2023 Leonardo Pasquali
The right of Leonardo Pasquali to be identified as author of this work has been asserted by him in accord­
ance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by
any electronic, mechanical, or other means, now known or hereafter invented, including photocopying
and recording, or in any information storage or retrieval system, without permission in writing from the
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used only for identification and explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
ISBN: 978-1-032-12705-7 (hbk-Routledge)
ISBN: 978-1-003-22595-9 (ebk-Routledge)
ISBN: 978-1-032-12733-0 (pbk-Routledge)
ISBN: 978-88-921-2192-8 (hbk-Giappichelli)
Typeset in Simoncini Garamond
by G. Giappichelli Editore, Turin, Italy
The manuscript has been subjected to a peer review process prior to publication.
Università di Pisa contributed to the funding of this publication.
The project “Solidarity in EU Law” (SoEULaw) is funded by the European Commission under the
Programme Erasmus+ Action – Jean Monnet Module - Call for Proposals 2019 - EACEA-03-2018 Ap­
plication No: 611582-EPP-1-2019-1-IT-EPPJMO-MODULE.
The European Commission support for the production of the publication does not constitute an en­
dorsement of the contents which reflects the views only of the authors, and the Commission cannot be
held responsible for any use which may be made of the information contained therein.
CONTENTS

page
1. Introduction. Solidarity: traditional international law vs. modern
international law and universal international law vs. law of
regional organizations
Leonardo Pasquali
1.1. The concept of solidarity 1
1.2. International law and solidarity in the historical evolution
of the international community 7
1.3. Research question and methodology 10
1.4. Plan of the book 16
2. Historical background of solidarity in European law
Aldo Petrucci
2.1. Preliminary remarks 23
2.2. What is Roman law and why do we refer to it as the
historical background to EU law? 24
2.3. What is the position of Roman law in relation to
individualism or solidarity? 27
2.4. Some final reflections 33
3. Solidarity between law and religion
Pierluigi Consorti
3.1. Introduction 35
3.2. Solidarity, sociology, religion and law 36
3.3. Solidarity and religion in EU law: the vertical approach 40
3.4. Solidarity and religion in EU law: the horizontal approach 43
3.5. Conclusion 44
viii Contents
page
4. Solidarity and constitutional law in Italy and other European
countries
Elisabetta Catelani, Pietro Milazzo
4.1. Premises 47

4.2. The evolution of solidarity in Italy in the twentieth century:

from value to principle 49

4.3. Solidarity and the Constitutional Court 51

4.4. Solidarity in the current emergency: the evolution of a

principle 53

4.5. The principle of solidarity among the European Consti­
tutions 55

4.6. Solidarity in the Constitutions and in the Preambles 57

4.7. Implicit and “immanent” solidarity (with focus on rights

connected to the welfare state) 61

4.8. Solidarity and the political local authorities 64

4.9. Conclusions 66

5. Federalism, the principle of solidarity and the third stage in the
division of competences
Marcelo Labanca Corrêa de Araújo
5.1. Introduction 69

5.2. Federalism and unity in diversity 71

5.3. Division of competences I: from dual to cooperative

federalism 75

5.4. Division of competences II: from cooperation to solidarity 79

5.5. Uncooperative federalism: when the duty of solidarity implies

the obligation not to cooperate 87

5.6. Conclusion 88

6. A realistic solidarity: Immanuel Kant’s legacy for modern Europe
Giorgio Ridolfi
6.1. Introduction 91

6.2. Freedom, equality and people’s sovereignty in Kant’s writings 92

6.3. Political reality and ethical ideals 96

6.4. From unsocial sociability to solidarity 99

6.5. A cosmopolitan way to solidarity 102

6.6. Conclusions 104
Contents ix
page
7. The dynamics between interest and solidarity as the functional
basis of current international law
Gerardo Martino
7.1. Whither solidarity in international law? From mutual
benefit to the development of solidarity-based relations 107
7.2. Functional solidarity 111
7.3. Onusian solidarity 111
7.4. Economic solidarity 113
7.5. Regional solidarity 115
7.5.1. Solidarity in the European integration process 116
7.5.2. The functional value of solidarity for the launch of
the European integration process 117
7.5.3. European solidarity through positive integration 118
8. Solidarity and international investment law: reconciliation within
the institutional framework?
Francisco Pascual-Vives
8.1. Introduction 124
8.2. Solidarity and contemporary international law 124
8.2.1. An international system organized in different
normative frameworks: a general overview 124
8.2.2. The functions of public international law: the
progressive affirmation of the principle of solidarity
through the development of peremptory norms 126
8.3. The complex and emerging interaction between the
principle of solidarity and international investment law 127
8.3.1. Formulas promoting solidarity within the institu­
tional framework: the role of international organi­
zations 127
8.3.1.1. The United Nations: human rights
violations and transnational corporations 128
8.3.1.2. The European Union: from an atomized
to a centralized legislation 131
8.3.2. Formulas promoting solidarity within the bilateral
framework: human rights litigation 136
8.3.2.1. Business and human rights arbitration 136
8.3.2.2. Extraterritoriality, limiting the forum non
conveniens doctrine and the challenges
arising from parallel proceedings 139
8.4. Final remarks 143