On May 7th, during the latest round about the lack of jurisdiction, justice Piero Leanza has rejected the latest exception risen, declaring that Trieste would be under the full sovereignty of Italy as stated by the Treaty of Osimo, ratified in 1977. From 1954 to 1977, Zone A of the Free Territory of Trieste would have remained only under the temporary civil administration of the Italian Government, as disposed with the Memorandum of London of October 5th, 1954.
A temporary administration which should have fully respected the dispositions of the Treaty of Peace of 1947, granting to the administrated citizens all their rights. Exactly as during the years of the A.M.G. (Allied Military Government) between 1947 and 1954. Same goes as for the International Port of Trieste, as it is regulated by dedicated Annex VIII of the Treaty of Peace and fully acknowledged by Resolution XVI of the Security Council of the United Nations.
It is an extra-national area, meaning it is outside the jurisdiction of any State, included Italy. A Free Port, that of Trieste, which owes its existence to the creation of the Free Territory, of which it is an indissoluble State corporation. Meaning, without the Free Territory the International Free Port of Trieste and its free zones would no longer exist.
The arguments all justices involved in the case used up to now are the offspring of that political, Italian jurisprudence made of paralegal complexes, which are unreliable and easy to deconstruct in front of any international Court in which the question concerning the juridical Status of the Free Port of Trieste or that of Trieste is risen: as long as the FPT exists, the FTT exists as well. And its citizens too.
But why does the Treaty of Osimo (in force since 1977) has no values as for the emendation of thee Free Territory of Trieste having not «ratified the final passage of the concerned territory under Italian sovereignty.»?
Time to read a short, analytic analysis of this matter.
First of all, we must take into account that the Treaty of Osimo ( Trattato di Osimo – TdO) under both domestic and international juridical profile «due to its different nature, could not cause a passage under the sovereignty of – respectively – Italy and Yugoslavia, as for Zone A and B of the Free Territory of Trieste, put under the trusteeship of the Italian and Yugoslavian government only.»
Respect to the international, establishing constitutive instruments of the FTT, the Treaty of Osimo of 1975 (from now on, TdO1975) actually is an inferior instrument, with a different nature and content, which is as well abnormal both as for its form and substance.
The TdP1947 actually is a a multilateral, normative which, along its executive instrument, the MoU1954 establishes, constitutes and rules the FTT assigning, due to the reasons and with the effects mentioned above, a special trusteeship mandate to the Governments, not the States, of its bordering countries.
This is the reason why the norms of the TdP1947 concerning the FTT cannot be modified without the explicit consent of all contractors and not even due to situations caused by whoever would have interest in emend these, and, when it comes to borders, not even due to an arbitrary, stable occupation (or under ‘usucaption’ as that does not exist under international law). References: the Convention of Vienna on the Law of Treaties, art. 61, comma 2 and art. 62, comma 1 e comma 2, points a) and b).
On the contrary, The TdO1975 is a bilateral treaty between two States which are neither entitled of the trusteeship over the FTT, as this has been given to their Governments, nor does it openly mention that and its main object the mutual acknowledgment of the border which runs from the area of Tarviso to Muggia.
This border lone does actually divide (from the area of Tarviso to river Timavo ) mainly the territories under the sovereignty of the two States involved, and only the shortest portion (from river Timavo to Muggia) the border of the FTT with Yugoslavia and that between the two zones of the FTT which are, on the contrary, under the international trusteeship of the Governments of these States.
Yet, the TdO1975 does no mention the FTT, does not contains statements concerning sovereignty over it and it precises (art. 7) that as the Treaty comes into force, the MoU1954 and its Annexes « shall cease to have effects in relations between the Italian Republic and the Socialist Federal Republic of Yugoslavia». So, remaining in force as for third parties: the administered FTT,its sovereign population, its international guarantors and even the International Community.
Also, the TdO1975 does not mention the fact that the Final Act of the OSCE Conference of Helsinki, undersigned more than three months before (8.1.1975) confirmed the rights of sovereignty, territorial integrity and inviolability of the borders of all States in Europe, meaning even these of the FTT under trustee administration of the Italian and Yugoslavian Governments.
This is why the juridical result of the – obviously political – construction of the TdO1975 is a Treaty in force only between the two State contractors, which through it rive up on mutual border and territorial claims on both the territories under mutual sovereignty and these under the administration of their Governments, without mentioning nor emending (not even as for domestic right) the norms of the TdP1947 which have established and constituted the FTT, nor the Trusteeship mandate of the MoU to their Governments which, as said, remains in force as for all other international subjects, including the sovereign population of the FTT.
So, the TdO1975 could not have produced juridical effects not as for the existence of the FTT, nor as for the dispositions of the Tdp1947 and of the MoU1954 concerning this State.
This is why the purpose and structural limits within the TdO1975 have then produced what exclusively is a bilateral agreement, which could not determinate the partition of the FTT under the sovereignty the Republic of Italy and Socialist Federal Republic of Yugoslavia, not under that of its successor states, ans it has lost its efficacy after the dissolution of the second contractor and the international acknowledgment of its two, territorial successor States (Slovenia and Croatia).
Along the Federal, Yugoclavian Government, even its trusteeship administration mandate over Zone B of the FTT expired and, as such, was not involved in the succession of States with Slovenia e la Croatia, so it should have been confirmed and split between their Governments, or given to to others.
This political and diplomtic impasse, from which Italy tried to take advantage, has been solved through the international acknowledgment, in 1991 and 1992, of independent Slovenia and Croatia within the borders including former Zone B, ty all the Signatory States of the TdP1947 and MoU1954, along with all the Country members of the United Nations, guarantors of the FTT.
The totality of the acknowledgments, ex art. 30, n.3 of the Convention of Vienna on the Right on Treaties, has produced the only legitimate and actual emendation of the norms of the TdP1947 concerning the FTT, which has reduced its extension to the only and main Zona A, still under the administration of the Italian Government under the original mandate given and accepted with the MoU1954 in execution of the TdP1947.
So, interpreting the TdO1975 as the juridical foundation of the Italian sovereignty of the Italian State over the FTT is a mere thesis of political doctrine, which, other then being wrong, is ab origine in contrast with the Italian legislation as for the other instruments of execution and ratification of the TdP1947 remain unchanged and in force under Constitutional guarantee.
Because of this, the affirmations that the bilateral Italian-Yugoslav Treaty of Osimo of 1975, also TdO1975 «does not result as having ever been modified, nor opposed to, by any State or international organization (including the United Nations)» results irrelevant and a sources of misunderstandings and errors, along the statement that there would have been a “tacit consent” as for the supposed passage of the FTT under the sovereignty of Italy (and Yugoslavia).
Even ignoring the absolute irrelevance of the application of the “tacit consent” concept as for international right, as well to this very case, the international silence as for the TdO1975 does in fact proof the very contrary, as the reason why there has not been opposition to it from other States and international organizations – first of all, from the United Nations – is that the bilateral treaty in question had been arranged – for the purposes and in the means above mentioned – in order not to modify the juridical status of the FTT.
The United Nations did in facts take notice on a political level of the contraction of that bilateral Treaty, but not on a juridical side: they did remove the appointment of the Governor of the FTT from the agenda of the Security Council, but they can as well restore that under request of any State.
The absence of international oppositions to the Treaty of Osimo are then to be considered a confirmation, not a deny, of the permanence of the juridical status of the FTT as established and ruled by the TdP1947 and the MoU1954.
Now, after the many decisions of the political Italian justice meant to justify the abuses committed by both the Government and State of Italy against the citizens of the FTT, the intervention of the international guarantors of the Treaty of Peace in force, meaning of the international legality Italy is breaking, is a necessity.
And all the citizens of the FTT which do not identify themselves with the – by now widely proofed – illegal decisions of the authorities of the State which is occupying their own, must address these guarantors. As victims of political persecution, performed by the occupying Country which has taken away their very citizenship. And the guarantors are the very signers of the Treaty of Peace.
What about right of political asylum?
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