Parliaments and "Just War". Fusion and Confusion between Moral, Legal and Political Levels in Relation to Military Interventions - di Marco ...
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ISSN 1826-3534
6 MARZO 2019
Parliaments and “Just War”. Fusion
and Confusion between Moral, Legal
and Political Levels in Relation to
Military Interventions
di Marco Podetta
Assegnista di ricerca in Diritto costituzionale
Università di BresciaParliaments and “Just War”. Fusion and Confusion
between Moral, Legal and Political Levels in Relation
to Military Interventions *
di Marco Podetta
Assegnista di ricerca in Diritto costituzionale
Università di Brescia
Table of contents: 1. The different connotation of the notion of “bellum iustum” from Cicero to Kelsen.
– 2. The merger of the legal and the ethical dimension of just war in modern constitutionalism and the
involvement of Parliaments in the taking of the military decision. – 3. The complicated justification of
“new” armed interventions. – 4. The importance of Parliaments’ political scrutiny for the legitimization
of military actions. – 5. The need to guarantee Parliaments’ political autonomy to give a real democratic
legitimacy to armed interventions.
1. The different connotation of the notion of “bellum iustum” from Cicero to Kelsen
The assessments regarding the possibility to consider an armed intervention as legitimate, linked to the
issue of the involvement of national Parliaments in the procedures for the adoption of the military
decision, entail – also from a philosophical point of view – the theory of the “just war”1.
The need to recover the doctrinal tradition of the just war in the contemporary era was particularly
emphasized by Hans Kelsen2, who, in theorizing the unity of law and the primacy of international law,
highlighted the need to identify a set of rules able to distinguish when the use of violence among States
is lawful or unlawful, precisely to confirm the legal nature of international law3.
In this approach, Kelsen evidently accepted the theory of just war in a precise legal perspective, in which
the military intervention assumes the characteristic of the sanction4. Some aspects of this approach are
* Peer reviewed. This work is an extended and revised version of a paper presented at the 4th Workshop, focused
on “Parliamentary Control of Military Engagements”, of the 10th World Congress of Constitutional Law (IACL-
AIDC) 2018 Seoul 18-22 June 2018 entitled “Violent Conflicts, Peace-Building and Constitutional Law”.
1 Some important essays about this topic are collected in T. BROOKS (ed.), Just War Theory, Leiden, 2013.
2 For a global reconstruction of Kelsen’s theoretical elaboration about just war, see F. RIGAUX, Hans Kelsen on
International Law, in European Journal of International Law, no. 9/1998, at 325 ff., in particular at 335 ff.
3 H. KELSEN, The Legal Process and International Order, London, 1935, at 13, specifically says that «Anyone who
rejects the theory of the just war denies, indeed, the legal nature of international law». F. RIGAUX, Hans Kelsen on
International Law, supra note 2, at 341, highlights that the just war doctrine «is the cornerstone of Kelsen’s
characterization of international law as a legal order».
4 Kelsen, however, is aware that the framing of the just war within the international legal system involves some
problems, due to the lack at that level of a common sanctioning apparatus exercising the coercive action, as well
as of a real jurisdictional body able to authorize the use of force, because of the fact that the international legal
2 federalismi.it - ISSN 1826-3534 |n. 5/2019evidently very current, especially where it takes into consideration the “external” dimension of the legitimization to the use of force by a State that operates as an organ of the international community5. However, Kelsen’s elaboration is only one of the many different possible conceptualizations through which the theory of the just war has been explained over the centuries. In fact, the notion of just war assumed different connotations in different eras and contexts, according to a not always linear trend6. As is known, the expression “just war”, or more precisely “bellum iustum”, understood as a parameter of relationship between different populations, was born within Roman law, and in particular in Cicero’s elaboration7. Of course, previously other cultures had already addressed the issue of war, but dealing with it mainly from a philosophical point of view (which perhaps referred to elements somehow connected to the moral level, then fully resumed and developed with reference to armed interventions in the Middle Ages). In particular, in ancient Greece Aristotle had identified three right reasons to practice war, built around the concept of dìkaios pòlemos8. In Roman culture the concept of just war is centered on the ius fetiale and identifies the armed intervention performed respecting the expected rituals. In other words, for the Romans the just war is the respect of a legal procedure established by law9 and in fact is independent from any moral evaluation. Therefore, the justice of the war for the Romans does not lie in the presence or not of a positive ethical evaluation, but in the respect of strict legal procedures10. This point of view changes radically in the Middle Ages, in particular starting from St. Augustine’s thinking11, later developed by St. Thomas Aquinas12. In these elaborations the justification of war leaves system is an imperfect legal system; see H. KELSEN, Das problem der Souveränität und die Theorie des Völkerrechts, Beitrag zu einer Reinen Rechstlehre, Tübingen, 1920 (It. trans., Milano, 1989, at 378 ff.). 5 See infra § 3. 6 The concise reconstruction of the evolution of the just war theory advanced in the next pages follows the approach proposed by A. CALORE, Introduzione, in ID. (ed.), Seminari di storia e diritto, III, “Guerra giusta”? La metamorfosi di un concetto antico, Milano, 2003, at XVI ff. 7 See in particular M. T. CICERO, De Officiis, 1, 36; De Re Publica, 3, 23. According to S. L. AGER, Roman perspectives on Greek Diplomacy, in C. EILERS (ed.), Diplomats and Diplomacy in the Roman World, Leiden, 2009, at 19, note 10, «Cicero is generally cited as the chief representative, but his remarks are in fact rather thin, and at times ambiguous». 8 ARISTOTLE, Politics, VII, 1333 b, 42-43 – 1334, 1-2. For some – not always equal – reconstructions about Aristotle’s contribution to the theory of just war, see in particular I. Z. BARON, Justifying the Obligation to Die. War, Ethics, and Political Obligation with Illustrations from Zionism, Lanham, 2009, at 34 ff., D. P. LACKEY, Moral Principles and Nuclear Weapons, Totowa, 1984, at 13 f., and R. J. REGAN, Just War. Principles and Cases, Washington D.C., 1996, at 14 ff. 9 That certainly in Roman law necessarily involved religious aspects and rituals. 10 A. CALORE, Introduzione, supra note 6, at XVII ff. 11 See in particular ST. AUGUSTINE, De Civitate Dei, 1,1 – 19,7; ID., Quaestiones in Heptateuchum, 6,10. 12 ST. THOMAS AQUINAS, Summa Theologiae, Secunda Secundae, 40. 3 federalismi.it - ISSN 1826-3534 |n. 5/2019
the world of the “legal” and comes to that of morality, which for St. Augustine 13 and St. Thomas Aquinas14 can only be the divine one. Therefore in this context the just war is seen in its theological perspective. The outlook changes again in 1600s, as emerges especially in Hugo Grocio’s thinking15, that moves away from the idea of the justice of the war linked to ethical and religious reasons16 to return to a formalist perspective, which therefore refers to Roman law to some extent, but focusing in particular on the rules to be followed within war rather than on those to move war17. From this point of view Grocio thus anticipated the modern trend aimed to specifically regulate the warlike behaviors by clearly separating those that can be kept from those to be avoided18. If in Grocio’s elaboration the attention for the just cause of the warlike behavior lost somehow importance, in the Nineteenth Century it substantially disappeared. With the framing of the “legal positivism”, the legal rule becomes the reference horizon and the category of the “just” is replaced by that of the “juridical”. In this context there are no commonly accepted rules that establish which war acts are just and which are not. In short, the war is always a lawful instrument19. The legal dimension of the war re-emerges at the turn of the 1900s, with the establishment of rules that do not concern the identification of the causes of just wars, but only the behaviors that the belligerents must keep. In this context the Hague Conventions of 1899 and 1907 modify the content of the Geneva Convention of 1864. It is still a matter of “law in war” and not of “war law”. The terrible devastation of the First World War, however, leads to a profound reflection, which is at the basis of the recovery of the theory of just war, especially carried out, as said at the beginning of this essay, by Kelsen. The aim is essentially to try to contain the use of the armed force as a means for the settlement 13 For an overall reconstruction of St. Augustine’s thought about just war, see J. M. MATTOX, St. Augustine and the Theory of Just War, London, 2006, in particular at 44 ff. 14 For a reconstruction of St. Thomas Aquinas contribution to the theory of just war, see E. M. MACIEROWSKY, Peace and War in St. Thomas Aquinas, in M. FARIDZADEH (ed.), Philosophies of Peace and Just War in Greek Philosophy and Religions of Abraham: Judaism, Cristianity and Islam, New York, 2004, at 49 ff. 15 For a comparison between St. Augustine’s and Grocio’s thought about just war, see J. D. TOOKE, The just war in Aquinas and Grotius, London, 1965. 16 See WIM SMIT, Beyond Paralysing Fear and Blind Violence. Terrorism, Counter-Terrorism and the Violation of Human and Civil Rights, in ID. (ed.), Just War and Terrorism. The End of the Just War Concept?, Leuven, 2005, at 113. 17 H. GROCIO, De jure belli ac pacis, 1623-1625. 18 In the same period, Thomas Hobbes, elaborating his «amoral philosophical theory» (T. HOBBES, Leviathan, chapter 13), considers wars as «the “natural” consequence of individual and societal acquisitive appetites», therefore, «In the absence of sovereign power, […] wars can only be called “good” or “bad” insofar as they are successful or unsuccessful in furthering societal interests», R. J. REGAN, Just War. Principles and Cases, supra note 8, at 3. 19 N. BOBBIO, Il problema della guerra e le vie della pace, Bologna, 1991, at 62 f. 4 federalismi.it - ISSN 1826-3534 |n. 5/2019
of international disputes20. The two cornerstones of this approach are, as anticipated, the centrality of the international dimension and of the law. This approach struggles to establish itself on the substantive level, especially because of the many unresolved issues left pending after the First World War, as shown by the fragility of the experience of the League of Nations at the international level and of the Weimar Republic at the State level. The times were not yet ripe. 2. The merger of the legal and the ethical dimension of just war in modern constitutionalism and the involvement of Parliaments in the taking of the military decision Unfortunately, the new horrors of the Second World War were necessary to give new impetus to these attempts to contain the use of force according to an international legal framework. The experience gained between the two wars, from this point of view, is fundamental; it was in fact recovered and reinforced in its weaknesses. The post-war democratic constitutionalism, starting from Kelsen’s teaching, actually accomplishes a Copernican revolution. The novelty is not to tend to only one of the two poles – to some extent in opposition to each other – that in the past had characterized the acceptance of the different meanings of the theory of the just war. The just war is no longer that of Roman law, which is aseptically made respecting the established legal rules, and not even that of the Middle Ages, which can always be carried out if it is morally justifiable. The application of the only “legal just” or of the only “ethical-moral just” have in fact produced terrible consequences in the past, legitimizing invasion wars and religious conflicts. In modern constitutionalism, the legal and the ethical dimensions21 merge and are considered simultaneously22. This is the only way to overcome the greatest paradox of previous settings. Indeed, in the different historical periods the concept of just war was not used to avoid war by highlighting when the war was unjust, but to legitimize the wanted armed interventions, by building justifications to affirm that they were just. After the Second World War the democratic Constitutions completely overturn this 20 F. RIGAUX, Hans Kelsen on International Law, supra note 2, at 335, stresses that, according to Kelsen, «The most typical delict under international law is the launching of an injust war, whereas a war fought with the intention of redressing an international wrong is considered just». 21 A particular point of view about the role played by morality in modern conflict is proposed by C. GUTHRIE – M. QUINLAN, Just War. The Just War Tradition: Ethics in Modern Warfare, London, 2007. 22 F. RIGAUX, Hans Kelsen on International Law, supra note 2, at 341, underlines that, according to Kelsen, «In any event, the bellum iustum doctrine, […] is not devoid of references to international morality». 5 federalismi.it - ISSN 1826-3534 |n. 5/2019
perspective and try to stem the warlike behaviors23. This change is mainly induced by the characteristics of modern war, especially in relation to the dangers of atomic war24. In the new democratic-constitutional legal orders, no longer closed on themselves but open to the outside, the legal rules cannot disregard an ethical evaluation of the military intervention, as well as the ethical evaluation of the armed action cannot disregard the legal rules. The “legally just” cannot be separated from the “ethically just” and the “ethically just” cannot be separated from the “legally just”. In order to do this, the new constitutional texts must necessarily start from the legal dimension, in which however the ethical evaluation that the war is always to be considered negative finds space. War thus has a space in the Constitutions first of all to establish the principle for which it must be avoided. In this perspective, the real achievement is the importance given to the international dimension, connected to the provision allowing the limitations of sovereignty by the States. Indeed, the modern Constitutions of democratic Countries contemplate, in different forms, the principle of the repudiation of war as an instrument of conquest and offense to other peoples. This principle is often related to the willingness to cooperate internationally with other States for the purpose of peacekeeping among nations, accepting – in some cases – the possibility of providing for limitations to the sovereignty25 of the State on terms of reciprocity in order to create bodies able to better pursue that end at a global level26. However, the war does not completely disappear from the constitutional texts. In fact, at the same time, the constitutional texts contain a discipline – usually very succinct and not detailed – concerning the formal procedures established for the declaration of the “war”27, which therefore refer essentially to the 23 See V. ONIDA, Guerra, diritto, costituzione, in il Mulino, no. 5/1999, at 958 ff. 24 N. BOBBIO, Il problema della guerra e le vie della pace, supra note 19, at 31 ff.; about Bobbio’s overall reflection about the theory of just war, see G. SCIROCCO, L’intellettuale nel labirinto. Norberto Bobbio e la “guerra giusta”, Milano, 2012. Also WIM SMIT, Beyond Paralysing Fear and Blind Violence. Terrorism, Counter-Terrorism and the Violation of Human and Civil Rights, supra note 16, at 113, underlines that «In the second half of the twentieth century the just war philosophy was dominated by the destructive power of nuclear weapons» and that «The sheer force of these weapons called into question the feasibility of both ius ad bellum and ius in bello». On this issue, see also D. P. LACKEY, Moral Principles and Nuclear Weapons, supra note 8, at 1 ff., and W. D. O’BRIEN, Just-War Doctrine in a Nuclear Context, in R. B. MILLER (ed.), War in the Twentieth Century. Sources in Theological Ethics, Westminster, 1992, at 315 ff. 25 With regard to the link between State sovereignty and belligerency, see G. ZAGREBELSKY, Il diritto mite, Torino, 1992, at 4 f. 26 As is known, this is in particular the exact content of the article 11 of the Italian Constitution. 27 In the Italian law these legal references are contained in the articles 78 and 87 of the Constitution, which establish that «The Houses deliberate the state of war and confer the necessary powers on the Government» and that «The President of the Republic […] shall make declarations of war which have been decided by the Chambers». 6 federalismi.it - ISSN 1826-3534 |n. 5/2019
sphere in which war (in the traditional sense) can still be considered legitimized by the modern Constitutions, i.e. essentially the defensive one28. Also in this case, the ethical justification of the armed intervention translated on the legal level, that is the aggression suffered, is strictly linked to the respect of the legal data, with the indication of the procedures to be followed to legitimize the use of force in the few spaces in which this is still allowed. This last aspect is decisive, above all because the involvement of Parliaments – which is the central issue of this essay – is based precisely on this ground. The constitutional procedures provided for in this area, as often incomplete and not detailed, may seem like mere formal obligations, but in reality they require in different forms the carrying out of a further control which the use of force must undergo, even in the restricted areas in which the use of force is allowed. In short, the Constitutions do not leave the Governments, to whom the supreme military command is traditionally attributed, completely free to act, but they require – in different ways according to the contexts – forms of authorization or control which in democratic systems must necessarily be carried out by the organs of the popular representation, namely the Parliaments29. This is particularly true in the legal systems with a parliamentary form of government, in which Parliament is the only state body endowed with popular legitimacy. The war is therefore restricted on several sides. Firstly, the modern constitutionalism rejects the war from an ethical point of view and translates this choice on the legal level, where peace becomes the founding principle of the legal system and the war is relegated to a few residual areas. Secondly, when war is admitted, there are legal rules that must necessarily be followed. Within this legal framework, both a control of compliance with the legal procedures laid down and a control of merit on the need and/or the opportunity (even from the ethical point of view) of the armed intervention must intervene. As highlighted, it is precisely in this last phase that the role of Parliaments comes into play. Thus the political decision of Parliaments ties in with the political decision of Governments to make war30. In some cases Parliaments are given a real veto power. 28 With respect to the Italian law, see the article 52 of the Constitution, which says that «The defence of the Fatherland is a sacred duty for every citizen». 29 About the Parliaments’ role in the military decision-making process according to the modern constitutional principles, with particular reference to the Italian law, see D. CABRAS, I poteri di indirizzo e di controllo del Parlamento sulle missioni internazionali dopo la legge 21 luglio 2016, n. 145, in Rivista AIC, no. 4/2017 (published also in il Filangieri, Quaderno 2017 – Missioni militari all’estero e principi costituzionali, Napoli, 2017, at 73 ff.), at 2 ff. 30 M. FRAU, La War Powers “Revolution” del Regno Unito, in Federalismi.it, no. 2/2017, at 1 f., highlights that «in tutte le principali esperienze costituzionali ai parlamenti sono sempre assicurate alcune funzioni fondamentali, ossia quelle di approvare o di autorizzare la dichiarazione di guerra, di legiferare sul mantenimento e sull’organizzazione delle forze armate, di finanziare le spese militari, di ottenere informazioni dal Governo sulla situazione di un conflitto». 7 federalismi.it - ISSN 1826-3534 |n. 5/2019
The constitutional guarantee organs provided for by the democratic Constitutions ensure the maintenance of this system on the internal front31. On the other hand, the international organisms set up at global level or at regional level for peacekeeping among States provide external guarantees, adding moreover another level of decision-making. Of course the final decision to make war is still today a political choice, but completely different than in the past. Not only because the adoption of this decision is subject to a series of legal guarantees, including the necessary assent of various bodies, but above all because the Constitutions have already taken and fixed the real basic political decision, namely the repudiation of war. Actually the repudiation of war falls within the “original” or “material Constitution” of the post-Second World War legal systems, that is, according to the meaning of this concept elaborated by Costantino Mortati32, within the set of interests and values around which the various political currents of society have founded the modern constitutional State33. 3. The complicated justification of “new” armed interventions Specified this background, the problem is to understand whether and how this scheme must be applied also with regard to military interventions different from the war in the classic sense34. Indeed, given this regulatory context, for several years now in many legal systems there has been a lively debate about the correct legal framework to be given to all those military interventions in which States are involved within international operations of peacemaking, peacekeeping, peacebuilding and peace enforcement35. 31 About the relation between the constitutional organs in the military decision-making process, with particular regard to the Italian law, see G. DE VERGOTTINI, Sicurezza internazionale: un correttivo presidenziale, in Percorsi costituzionali, nos. 2-3/2011, at 83 ff. 32 C. MORTATI, La Costituzione in senso materiale, Milano, 1940. 33 In the present reasoning it is also important to note that Mortati actually recognizes legal value to this political pact on which the constitutional State is based. 34 See F. FURLAN, Presidente della Repubblica e politiche di sicurezza internazionale tra diarchia e garanzia, (amended edition), Milano, 2013, at 268 ff. 35 See S. CHESTERMAN, Just War or Just Peace? Humanitarian Intervention and International Law, Oxford, 2001. About the increasingly difficulty in making a clear distinction between peacetime and wartine, see P. CARNEVALE, La costituzione va alla guerra?, Napoli, 2013. 8 federalismi.it - ISSN 1826-3534 |n. 5/2019
It is no coincidence that in the most recent normative texts, especially international and supranational, the concept of “war” is often replaced by others36, such as (armed or military) “mission” or “task”37, with the purpose to bring the latter to the area – in the broad sense – of humanitarian (international) law, giving them an autonomous legal connotation38. Moving from the difficulty to include this new kind of military operations into the traditional “language”39 used in the democratic Constitutions40, part of the legal literature has often focused its attention on the structural differences between those interventions and the classic war (for example about the type of weapons that can be used, the rules of engagement, etc.)41 with the aim of claiming the former. Such definitional operations have inevitably met problems, trying to fix on a legal level abstract “borders” that are difficult to identify on the substantive level. From a conceptual point of view, the difficulty derives in particular from the fact that war is the antithesis of law, so it is problematic to frame it on the legal level. Moreover these operations can in some cases trigger dangerous dynamics. Firstly, the difficulty of framing and regulating the war on the legal level can in fact induce a sort of “escape from the law” and the attempt to return seeking the justifying cause of armed interventions only in the moral level, even in its theological and religious version. On the basis of this perspective, for example, some US Scholars tried to legitimize the military intervention in Afghanistan after 11 September 200142 declaring that armed reaction43 «not only morally permitted, but morally necessary»44. Again in this 36 As underlined also by G. SITARAMAN, The Counterinsurgent’s Constitution. Law in the Age of Small Wars, Oxford, 2013, at The war/Peace Distinction, the first important step in this direction is contained in the Article 2 of the Charter of the United Nations, which «replaced the ancient category of war with the broader category of “the use of force”». 37 See, for example, the Section 2, dealing with “Provisions on the Common Security and Defence Policy”, of the Chapter 2 of the Title V of the Treaty on European Union. 38 With regard to the conceptual difference between “war” and “armed conflict”, see D. CABRAS, I poteri di indirizzo e di controllo del Parlamento sulle missioni internazionali dopo la legge 21 luglio 2016, n. 145, supra note 29, at 6, note 14. 39 About the “language of and in conflicts”, see the interesting essays published in S. WRIGHT (ed.), Language and Conflict. A Neglected Relationship, Clevedon, 1998. 40 With regard to the legal framework of military interventions abroad according to constitutional principles in the Italian law, see the interesting essays published in il Filangieri, Quaderno 2017 – Missioni militari all’estero e principi costituzionali, supra note 29. 41 See G. SITARAMAN, The Counterinsurgent’s Constitution. Law in the Age of Small Wars, supra note 36. 42 In this regard, see also A. CALORE, Introduzione, supra note 6, at XII. 43 With regard to the possible introduction of a clause referred to “terrorist state of emergency” in constitutional texts, see G. DI COSIMO, Costituzione ed emergenza terroristica, in M. MECCARELLI – P. PALCHETTI – C. SOTIS, Le regole dell’eccezione. Un dialogo interdisciplinare a partire dalla questione del terrorismo, Macerata, 2011, at 323 ff. More generally, about the application of the just war theory with respect to war against terrorism, see the works published in WIM SMIT (ed.), Just War and Terrorism. The End of the Just War Concept?, supra note 16. 44 A just war?, in D. BLANKENHORN – A. FILALI-ANSARY – H. I. MNEIMNEH – A. ROBERTS (eds.), The Islam Wes Debate. Documents from a Global Debate on Terrorism, U.S. Policy, and the Middle East, Lanham, 2005, at 26. 9 federalismi.it - ISSN 1826-3534 |n. 5/2019
perspective Michael Walzer proposed a return to the concept of just war in a moral sense, denouncing that «The lawyers have constructed a paper world, which fails at crucial points to correspond to the world the rest of us still live in»45. Secondly, this approach, focusing on very specific aspects, is too concerned with finding a “justification in the war” rather than a “justification of the war”. The task of the lawyer, however, is not only to fix in normative texts rigid definitions, establishing in general and theoretical terms the specific characteristics of hypothetical military interventions to be classified as peace interventions. Moreover, the risk is to confuse levels that are obviously, as mentioned, closely related, but which should not be confused: the legal one and the political one. On the contrary, the task of the lawyer is first of all to verify if and how military interventions can be considered legitimate, according to the constitutional principles46. Even when these interventions are considered admissible in relation to the aforementioned provision 47 permitting limitations of state sovereignty in order to guarantee peace among nations48, it is necessary to identify which bodies are called to intervene and the procedures to be followed so that the intervention of a Country in a military operation can be considered legitimate. In this sense, it is essential to understand which is the role of Parliaments in this particular decision-making process. 45 M. WALZER, Just and Unjust Wars. A Moral Argument with Historical Illustrations, New York, 2015 (1977), Preface. 46 About the correct legal framework to be given to emergency, see G. DE MINICO, Costituzione. Emergenza e terrorismo, Napoli, 2016. 47 See supra § 2. 48 With respect to the Italian doctrinal debate on this fundamental aspect, that cannot be deepened in this work, see in particular L. CARLASSARE, Costituzione italiana e partecipazione a operazioni militari, in N. RONZITTI (ed.), Nato, conflitto in Kosovo e Costituzione italiana, Milano, 2000, at 157 ff., A. CASSESE, Articolo 11, in G. BRANCA (ed.), Commentario della Costituzione. Artt. 1-12, Bologna-Roma, 1975, at 565 ff., A. D’ANDREA, Diritti Fondamentali, diritto alla pace, ripudio della guerra, in A. CALORE (ed.), Seminari di storia e diritto, III, “Guerra giusta”? La metamorfosi di un concetto antico, supra note 6, at 199 ff., C. DE FIORES, L’Italia ripudia la Guerra? La Costituzione di fronte al nuovo ordine globale, Roma, 2002, G. DE VERGOTTINI, Guerra e costituzione. Nuovi conflitti e sfide alla democrazia, Bologna, 2004, M. DOGLIANI – S. SICARDI (eds.), Diritti umani e uso della forza. Profili di diritto costituzionale interno e internazionale, Torino, 1999, G. FERRARI, Guerra (stato di), in Enciclopedia del diritto, XIX, Milano, 1970, at 816 ff., U. GIARDINA, in G. BRANCA (ed.), Commentario della Costituzione. Artt. 76-82, II, Bologna-Roma, 1979, at 94 ff., G. U. RESCIGNO, Riflessioni di un giurista sulla guerra e sulla pace, in Quaderni costituzionali, no. 2/1999, at 376 ff., F. RIGANO, La guerra. Profili di diritto costituzionale interno, in La Guerra. Profili di diritto internazionale e diritto interno, Napoli, 2002, at 19 ff., and A. RUGGERI, Le guerre, la teoria del potere costituente e il bilanciamento tra valori costituzionali, in U. LA TORRE – G. MOSCHELLA – F. PELLEGRINO – M. P. RIZZO – G. VERMIGLIO (eds.), Scritti in memoria di Elio Fanara, II, Milano, at 277 ff. 10 federalismi.it - ISSN 1826-3534 |n. 5/2019
From this point of view, constitutional texts can appear incomplete, because they contain references that seem inadequate49 to being used directly for these new categories50. Within this context the Governments, to whom the supreme military command is traditionally attributed, have played the leading role51, often to the detriment of the prerogatives, on the one hand, of national Parliaments, on the other, (in particular) of the UN and its Security Council52. Despite some unavoidable differences, this tendency has affected the Western democracies overall, irrespective of their form of government, with particular regard to the majoritarian democracies. As has been quite properly stated, in all three main models of government (the British parliamentary system, the American presidential system and the French semi-presidential system) the Executives have increased little by little their military powers in the second half of the Twentieth Century; in fact, the progressive increase of the Governments’ powers in the decision-making process about military engagements has been an unstoppable global phenomenon53. From this perspective, the role played by the British Prime Minister can be compared with the one of the American “Commander in chief” and the French “Chef des armées”54. Precisely in relation to these behaviours held by Governments, some clarifications must be made first of all in order to identify which is the level of “legality” and secondarily to distinguish it from the level of “legitimacy”. With reference to the level of legality, regardless of the nominal differences invented by the supporters of these types of interventions, the legal framework provided by the combination of the principles contained in the democratic Constitutions after the Second World War55 with the rules of the Charter of 49 About the inadequacy of the notion of “declaration of war” with respect to these new types of armed interventions, see D. CABRAS, I poteri di indirizzo e di controllo del Parlamento sulle missioni internazionali dopo la legge 21 luglio 2016, n. 145, supra note 29, at 11. 50 A systematisation of the different kinds of emergency is proposed by A. VEDASCHI, À la guerre comme à la guerre. La disciplina della guerra nel diritto costituzionale comparato, Torino, 2007, at 263 ff. 51 In this context, G. DI COSIMO, Costituzione ed emergenza terroristica, supra note 43, criticizes the idea of giving more powers to the Governments in case of states of emergency through the introduction of a new specific constitutional clause. 52 See G. MOTZO, Costituzione e guerra giusta alla periferia dell'impero, in Quaderni costituzionali, no. 2/1999, at 373 ff. G. DE VERGOTTINI, La Costituzione e l’intervento NATO nella ex-Jugoslavia, in Quaderni costituzionali, no. 1/1999, at 125, ID., Il crescente uso della forza: riflessi istituzionali, in Rivista AIC, no. 2/2012, at 6, underlines the role played by the United States, the world military hegemon Country, in this context. 53 M. FRAU, La War Powers “Revolution” del Regno Unito, supra note 30, at 3. 54 M. FRAU, La War Powers “Revolution” del Regno Unito, supra note 30, at 3 f., who also emphasized that the Prime Minister of the United Kingdom has substantially played the part of “commander of his armies and his fleets” typically attributed to the Fifteenth Century English Monarchs by Frederic William Maitland. 55 Even if, as is known, it must be considered that the principle of repudiation of war, as highlighted by some Authors, could imply the exclusion of the possibility of carrying out any armed intervention at the legal level, admitting at most only the defensive war; with regard to the Italian constitutional literature, see in particular L. 11 federalismi.it - ISSN 1826-3534 |n. 5/2019
the United Nations, as well as of other international regional charters (such as the North Atlantic Treaty) or supranational sources (as in the EU), is quite clear and can allow only two types of armed intervention56. First of all, it allows those decided or authorized by the UN Security Council and carried out under the full responsibility of the UN on the basis of the provisions of Chapter VII of the Charter of the United Nations, which comprises «Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression». Secondly, those concerning the «inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security»57. The armed interventions conducted outside these rules must – for sure – be considered illegitimate58. The armed interventions carried out according to these rules, instead, respect the level of legality59, but not necessarily that of legitimacy60. The latter is also linked to the concept of legitimation, to be compared with the constitutional principles, which in modern democratic Countries establish the repudiation of war as an instrument of aggression and as a means for settling international disputes. 4. The importance of Parliaments’ political scrutiny for the legitimization of military actions The role played by Parliaments61, cornerstones of democracy62, is fundamental in this dual perspective63. Actually, in recent years, some procedural rules and principles have been introduced into different legal systems in order to oblige – or at least induce – Governments to involve Parliaments (the only real representative bodies)64 in taking decisions regarding participation in military interventions65. CARLASSARE, Costituzione italiana e partecipazione a operazioni militari, supra note 48, at 157 ff., and G. U. RESCIGNO, Riflessioni di un giurista sulla guerra e sulla pace, in Quaderni costituzionali, no. 2/1999, at 376 ff. 56 The reference point is in particular the Chapter VII of the Charter of the United Nations; see A. D’ANDREA, Diritti Fondamentali, diritto alla pace, ripudio della guerra, supra note 48, at 205 ff. 57 Article 51 of the Charter of the United Nations. 58 In the same way, according to Kelsen, «war is a delict i[f] not supported by general international law», see F. RIGAUX, Hans Kelsen on International Law, supra note 2, at 341. 59 According to the view that does not exclude the possibility of carrying out any armed intervention at the legal level, see supra note 55. 60 About the legitimate use of force in the legal order, see V. ONIDA, Guerra, diritto, costituzione, supra note 23, at 960 f. 61 See A. VEDASCHI, À la guerre comme à la guerre. La disciplina della guerra nel diritto costituzionale comparato, supra note 50. 62 See R. BLACKBURN – A. CARMINATI – L. SPADACINI (eds.), Parliament as the Cornerstone of Democracy, London, 2018. 63 That’s why the parliamentary control function must be continued and able to anticipate the possible Government’s determinations (also) in the international community, see D. CABRAS, I poteri di indirizzo e di controllo del Parlamento sulle missioni internazionali dopo la legge 21 luglio 2016, n. 145, supra note 29, at 29. 64 In this perspective the jurisprudence of the German Bundesverfassungsgericht is actually particularly significant, see infra. 65 M. FRAU, La War Powers “Revolution” del Regno Unito, supra note 30, at 1 ff. 12 federalismi.it - ISSN 1826-3534 |n. 5/2019
From this point of view, it is interesting to note, on the one hand, the tendency to involve Parliaments in the war decisions even in legal systems where there is not a written Fundamental Law66, as well as in legal systems with a presidential form of government67, on the other, the different forms in which the progressive establishment of this instance took place. In the United Kingdom, in the absence of a written Constitution, the participation of the Parliament in the military decision-making process68 has developed in terms of practice69, until in 2011 «the Government acknowledged that a convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that convention except when there was an emergency and such action would not be appropriate»70. Probably also because of the historical close ties between the British legal system and the American one71, after a long period in which the interpretation and application of the war powers of the US President as Commander in Chief established in the American Constitution led to the clear dominance of the Executive72, more recently even in the US presidential form of governmet the Parliament gets more involved in the military decision and claims its role on this ground73. With regard to the European continental legal systems, the German example is extremely significant, because in this case the (implicit constitutional) principle of the necessary involvement of Parliament in conflict decisions was explicitly claimed through the jurisprudence of the Bundesverfassungsgericht, starting 66 See M. FRAU – E. TIRA, The interpretation of the Commander in Chief clause in the American Constitution in comparison with the recent transformation of the prerogative power to deploy troops in the unwritten British Constitution, in Nomos, no. 1/2018, at 7 ff. 67 About «The Possible Influence of the Evolution of UK Constitutional War Powers on the Interpretation of War Powers in the US Constitution», see M. FRAU – E. TIRA, The interpretation of the Commander in Chief clause in the American Constitution in comparison with the recent transformation of the prerogative power to deploy troops in the unwritten British Constitution, supra note 66, at 1 ff., in particular at 29 ff. 68 See in particular HOUSE OF COMMONS, POLITICAL AND CONSTITUTIONAL REFORM COMMITTEE, Parliament’s role in conflict decision, 17 May 2011, ID., Parliament’s role in conflict decision: an update, 6 September 2013, and ID., Parliament’s role in conflict decision: a way forward, 27 March 2014. 69 Practice not always linear, see infra § 5. 70 The Cabinet manual: a guide to laws, conventions and rules on the operation of government, 1st edition, October 2011, § 5.38, in www.gov.uk. 71 See M. FRAU – E. TIRA, The interpretation of the Commander in Chief clause in the American Constitution in comparison with the recent transformation of the prerogative power to deploy troops in the unwritten British Constitution, supra note 66, at 1 ff. 72 Though in the United States «the matter of the constitutional war powers is still controversial» and «the strict interpretation of the War Powers Clause established in favor of the Congress prevails», as underlined by M. FRAU – E. TIRA, The interpretation of the Commander in Chief clause in the American Constitution in comparison with the recent transformation of the prerogative power to deploy troops in the unwritten British Constitution, supra note 66, at 2. 73 See infra § 5. 13 federalismi.it - ISSN 1826-3534 |n. 5/2019
from a 1994 judgement74. Only at later stage the German legislator has laid down the rule of the necessary prior parliamentary authorization for the deployment of armed forces abroad75, before the German Federal Constitutional Court in 2008 returned on the subject by further improving this principle76. In other cases the national legislator itself took action to strengthen the Parliament’s role towards the Government with regard to the employment of armed forces, even if not always in the same way and with the same legal sources. In France the legislator decided in 2008 to include in this regard some new procedural requirements in the text of a consitutional reform, which, among many other things, added three new paragraphs to the Article 35 of the Fundamental Law77. From this perspective, according to the new rules, the Government shall in particular promptly inform Parliament of its decision to have the armed forces intervene abroad and, most importantly, where the said intervention shall exceed four months, shall submit the extension to Parliament for authorization78. The Italian legislator, instead, decided to intervene in this matter with an ordinary law in 199779, establishing in particular that the Government’s decisions on defense and security are subject to examination by the Supreme Defense Council and to approval by the Parliament before their implementation by the Minister of Defence. These legal provisions, however, weren’t clear about the nature and the bindingness of the parliamentary approval; for this reason, a few years later, the Italian Chamber of Deputies’s Defense Commission approved a resolution to clarify this aspects and bind the Executive to involve Parliament (and the other constitutional bodies) in the right way to give a real legitimacy to military interventions abroad80. This was an important step, because – beyond the real 74 See BVERFGE 90, 286 (1994); about the relevance of this judgement, see A. CARIOLA, Le trasformazioni della guerra nello Stato costituzionale di diritto. La decisione della Corte di Karlsruhe sull’intervento armato tedesco all’estero, in La comunità internazionale, 1999, at 619 ff. 75 See the “Gesetz über die parlamentarische Beteiligung bei der Entscheidung über den Einsatz bewaffneter Streitkräfte im Ausland” (BGBL I 2005 S 775). 76 See BVERFGE 121, 135 (2008). 77 See the Loi constitutionnelle no. 2008-724; about the “spirit” of this constitutional reform, see S. CECCANTI, Revisione francese. La rivincita di Vedel e Duverge, in forum di Quaderni costituzionali, 2008, at 1 ff. 78 Here is the full text of the amended Article 35 of the French Constitution: «1. A declaration of war shall be authorized by Parliament. 2. The Government shall inform Parliament of its decision to have the armed forces intervene abroad, at the latest three days after the beginning of said intervention. It shall detail the objectives of the said intervention. This information may give rise to a debate, which shall not be followed by a vote. 3. Where the said intervention shall exceed four months, the Government shall submit the extension to Parliament for authorization. It may ask the National Assembly to make the final decision. 4. If Parliament is not sitting at the end of the four-month period, it shall express its decision at the opening of the following session». 79 Law 18 February 1997, no. 25. 80 Resolution no. 7-01007 Ruffino, adopted on 16th December 2001. 14 federalismi.it - ISSN 1826-3534 |n. 5/2019
binding power of this instrument81 and not always linear application practices82 – the relationships between Italian Government and Parliament about military actions were inspired by these “instructions” laid down in the so-called Ruffino resolution83, until in 2016 a new global reform about the participation to international missions, which provides the strengthening of the Parliament’s role, was approved84. The Parliaments’ involvement can be greeted favourably under the perspective of strengthening democracy in the adoption of military decisions and of reinforcing the legitimacy of the latter. It must however be stressed that a larger formal involvement of national Parliaments cannot represent the solution to each problem. Even with respect to various military interventions strongly contested – perhaps rightly – in the past, indeed, very often the observers have focused only on their alleged illegitimacy from a legal point of view85, without deepening the political responsibilities of the representative institutions that have often decided to overlook the behavior of the Governments. On the other hand, in other cases there was no in-depth debate within the Parliaments of the States involved about the participation in armed interventions particularly problematic under different profiles which, however, had been authorized according to the legal procedural rules laid down86. But, as said, the mere respect of the procedural legality does not exempt States – and therefore their institutions – from doing evaluations on the legitimacy and legitimation of a specific intervention. The modern democratic Constitutions require something more, that is the fulfilment by the States of internal assessments about the respect of the constitutional provisions, even where, for example, the competent international organizations seem to have authorized an intervention according to the laid down procedures87. 81 Claimed in particulrar by P. CARNEVALE, Il ruolo del Parlamento e l’assetto dei rapporti fra Camere e Governo nella gestione dei conflitti armati. Riflessioni alla luce della prassi seguita in occasione delle crisi internazionali del Golfo persico, Kosovo e Afghanistan, in ID., La costituzione va alla guerra?, supra note 35, at 48 ff. 82 See D. CABRAS, I poteri di indirizzo e di controllo del Parlamento sulle missioni internazionali dopo la legge 21 luglio 2016, n. 145, supra note 29, at 25; about the reasons of the checkered application of these rules, see G. DE VERGOTTINI, Guerra e costituzione. Nuovi conflitti e sfide alla democrazia, supra note 48, at 321, and R. DICKMANN, L’approvazione parlamentare dell’impiego dello strumento militare. L’esperienza delle operazioni internazionali di pace, in Rivista trimestrale di diritto pubblico, 2001, at 61 ff. 83 See R. SOMMA, La partecipazione italiana a missioni internazionali: disciplina vigente e prospettive di riforma, in Federalismi.it, no. 7/2011, at 9. 84 For an overall reconstruction of the content of this law, see D. CABRAS, I poteri di indirizzo e di controllo del Parlamento sulle missioni internazionali dopo la legge 21 luglio 2016, n. 145, supra note 29, at 1 ff., and G. DI MUCCIO, L’autorizzazione parlamentare delle missioni internazionali dell’Italia nella legge 21 luglio 2016, n. 145, in Federalismi.it, no. 7/2017, at 2 ff. 85 Not only in case of complete failure to comply with the procedural rules laid down, but also for the established practices that are outside the law while pretending to be lawful, as in the case of the “implicit” or “subsequent” authorizations by the UN Security Council. 86 Or at least apparently according to those rules. 87 The assessments on the legitimacy of an intervention with respect to the constitutional precepts are different from the assessments on the opportunities of an intervention and should not be confused with these. 15 federalismi.it - ISSN 1826-3534 |n. 5/2019
This is necessary also because of the well-known problem of the insufficient democratic legitimation of the Security Council itself88, called to act as an international arbitrator for the possible authorization of these military interventions. Out of the procedural legality there is no legitimacy, but it is not automatic that there is always legitimacy in procedural legality. As mentioned, in the modern democratic constitutionalism the legitimacy of the armed intervention requires the co-existence of the “legally just”, deriving from the respect of the procedural rules provided for by both the internal and the international legal system, and of the “ethically just”, in its turn brought back into the legal level by the provisions within the modern Constitutions establishing the fundamental principle of the repudiation of war and admitting the armed intervention only as a last resort. The political control on the simultaneous existence of these requirements must be carried out in the first place by the Parliaments89, which too often in the past bowed instead to the Governments’ decisions. In these cases, even if the legal procedures seem to have been respected, a political responsibility can be identified90, certainly of the Governments, but also of the Parliaments that have sometimes been their “accomplices”. It could be objected that often the Government brings into play the Parliament when the armed intervention has already begun and therefore it is difficult for the representative body to oppose the fact accompli91, or that in some other cases the Parliaments are not completely involved92. Even if these considerations are partially true, they are not sufficient to justify the parliamentary inertia any way. 5. The need to guarantee Parliaments’ political autonomy to give a real democratic legitimacy to armed interventions Some good examples should be followed in which the Parliaments have shown to have a role in taking the military decision. What is most interesting is that some of these examples also concern legal systems 88 See I. HURD, After Anarchy. Legitimacy and Power in the United Nations Security Council, Princeton, 2007. 89 See D. CABRAS, I poteri di indirizzo e di controllo del Parlamento sulle missioni internazionali dopo la legge 21 luglio 2016, n. 145, supra note 29, at 3. 90 About the active role played also by the President of the Republic in Italy in the context of military decisions, see G. DE VERGOTTINI, Politica estera e interventi del Presidente della Repubblica, in Quaderni costituzionali, no. 3/1984, at 493 ff., and ID., Sicurezza internazionale: un correttivo presidenziale, supra note 31, at 83 ff., who claims that the President has improperly interfered with Government’s and Parliament’s attributions, namely because he may only have a diffused responsibility. 91 See D. CABRAS, I poteri di indirizzo e di controllo del Parlamento sulle missioni internazionali dopo la legge 21 luglio 2016, n. 145, supra note 29, at 19. 92 See G. DI MUCCIO, L’autorizzazione parlamentare delle missioni internazionali dell’Italia nella legge 21 luglio 2016, n. 145, supra note 84, at 22. 16 federalismi.it - ISSN 1826-3534 |n. 5/2019
with a presidential form of government, where typically the representative Assemblies are less involved in the government decision-making. A first example is the decision by US President Barack Obama to request a parliamentary vote in order to give the go-ahead for the military intervention in Syria in August 201393. The case of the amendment to the US National Defense Authorization Act for Fiscal Year 2019, unanimously approved by the US Congress in May 2018, is even more significant. With this vote the House of Representatives claimed its authority over the use of military force and underlined, in the ambiguity of the American regulation on the matter, the ban on President Donald Trump to declare war against Iran without the Congress approval94. Regardless of whether this vote is considered binding, this case is a very important example of taking responsibility by the Parliament on the matter. It is therefore evident that the Parliaments’ role in the taking of the military decision is crucial and that they can affect it when they are endowed with an autonomous recognized legitimation, that is to say when the dynamics of the form of government (whatever it is) are sound. What said is even more fundamental in the legal systems with parliamentary forms of government, because in these cases the Parliament is the only body with an autonomous direct popular legitimation, and therefore able to give democratic legitimacy to an armed operation. Paradoxically, however, the risk of a debasement of the Parliaments’ role in the decision-making process about military engagements seems to be higher right in the States that have a parliamentary form of government95. Indeed, parliamentary majorities are not always able to oppose the Government as the British Parliament did in August 2013 when it rejected the British Government’s motion aimed at supporting an intervention in Syria96. 93 In particular, President Obama sent to the Speaker of the House of Representatives and to the President of the Senate a request of «Authorization for Use of United States Armed Forces in connection with the conflict in Syria», but the procedure was later suspended because of the definition of a political settlement of that dispute at the international level, see M. FRAU – E. TIRA, The interpretation of the Commander in Chief clause in the American Constitution in comparison with the recent transformation of the prerogative power to deploy troops in the unwritten British Constitution, supra note 66, at 15. 94 It’s a bipartisan amendment introduced by Rep. Keith Ellison (D-MN) and cosponsored by Reps. Barbara Lee (D-CA), Ro Khanna (D-CA), Jan Schakowsky (D-IL), Jim McGovern (D-MA) and Walter Jones (R-NC) passed in the US House as part of the National Defense Authorization Act for Fiscal Year 2019. This amendment added at the end of subtitle C of title XII the Sec. 12 “Sense of Congress on the Lack Of Authorization for the Use of the Armed Forces against Iran”, which states that «It is the sense of Congress that the use of the Armed Forces against Iran is not authorized by this Act or any other Act». 95 Especially in cases where there are the so-called monocolore Governments, see M. FRAU, La War Powers “Revolution” del Regno Unito, supra note 30, at 4. 96 See M. FRAU – E. TIRA, The interpretation of the Commander in Chief clause in the American Constitution in comparison with the recent transformation of the prerogative power to deploy troops in the unwritten British Constitution, supra note 66, at 22 f. 17 federalismi.it - ISSN 1826-3534 |n. 5/2019
Of course, even where there are strong Parliaments, problems may arise with reference to the exclusion of the representative bodies from the decision-making process, as occurred for example in the recent case of the intervention in Syria, in which the British Government’s decision not to require a prior parliamentary authorization has even questioned the existence of the constitutional convention by which that authorization would instead be mandatory97. This risk, however, arises especially where there are changes in the normal relationship between Government and Parliament, such that on a substantial level the Government no longer depends on “its” majority, but the parliamentary majority depends on “its” Government. This alteration of the normal functioning of the parliamentary form of government, which concerns some legal systems98 such as Italy99, was induced by the will to centralize and speed up the decision- making process (especially with reference to legislative procedures)100, which resulted in the approval of instruments and in the establishment of practice strengthening in various ways the Executive to the detriment of the Parliament101. In that occasion, Prime Minister David Cameron declared that the Government would certainly have respected the will of the Parliament, see Prime Minister’s Office, Prime Minister’s phone call with President Obama, 30 August 2013, www.gov.uk. 97 In this occasion, Prime Minister Theresa May, unlike what happened in the previous case of 2013, decided to proceed without the prior Parliament’s approval. Shortly after the news of the missile attack, the opposition leader Jeremy Corbyn issued a significant statement to the press complaining that the Prime Minister should have obtained Parliament’s prior approval. An urgent parliamentary debate on the military action in question followed, see House of Commons, Official Report, Military Action Overseas: Parliamentary Approval, Application for emergency debate (Standing Order No. 24), 16 April 2018, Vol. 639; for an analysis of this issue, see M. FRAU – E. TIRA, The interpretation of the Commander in Chief clause in the American Constitution in comparison with the recent transformation of the prerogative power to deploy troops in the unwritten British Constitution, supra note 66, at 24 ff. 98 For an in-depth analysis of the issue of the weakening of Parliaments in the Southern European area, see C. LEISTON BANDEIRA (ed.), Southern European Parliaments in Democracy, London – New York, 2005. 99 See in particular A. D’ANDREA (ed.), Il Governo sopra tutto, Gussago, 2009. 100 With regard to the constitutional reform (also) of the legislative process recently proposed in Italy (infra note 101), see S. STAIANO, Le leggi monocamerali (o più esattamente bicamerali asimmetriche), in Rivista AIC, no. 1/2016, at 1 ff. 101 To use the same Italian example, not counting many others relevant factors on the legal and on the practical level, the approval in 2005 of a “majority assuring” electoral law (Law 21 December 2005, no. 270) to forcefully produce always and in any case (at least in one of the two elective Chambers) a “winner” of the parliamentary elections, has inevitably weakened the representative body by debasing the parliamentary dialectic (see A. D’ANDREA, L’insostenibile ragionevolezza della nuova legge elettorale, in Quaderni costituzionali, no. 1/2006, at 109 ff.). When the Italian Constitutional Court declared the illegitimacy of that electoral law (Italian Constitutional Court, Judgment no. 1/2014; see L. SPADACINI, I limiti alla discrezionalità del legislatore in materia elettorale desumibili dalla sentenza della Corte costituzionale n. 1 del 2014, in forum di Quaderni costituzionali, 2014, at 1 ff.), another one similar to the former was approved (Law 6 May 2015, no. 52; see L. TRUCCO, Il sistema elettorale “Italicum” alla prova della sentenza della Corte costituzionale n. 1 del 2014 (note a prima lettura), in Consulta OnLine, 2014, at 1 ff., and ID., Il sistema elettorale “Italicum-bis” alla prova della sentenza della Corte costituzionale n. 1 del 2014 (atto secondo), in Consulta OnLine, 2015, at 285 ff.); at the same time, the Government proposed to reform the State’s institutional set-up, trying overall to weaken the Parliament’s role (see A. APOSTOLI – M. GORLANI – S. TROILO (eds.), La Costituzione in movimento. La Riforma costituzionale tra speranze e timori, Torino, 2016). The Italian Constitutional Court declared 18 federalismi.it - ISSN 1826-3534 |n. 5/2019
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