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Paolo Turrini

University of Trento, Facoltà di Giurisprudenza, Associate Professor

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University of Oslo

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Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law

University of Melbourne

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National and Kapodistrian University of Athens

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Papers by Paolo Turrini

International Investment Law: The Anarchical Society Where Development and Sustainability Are Frenemies and Participation Plays Gooseberry

Birgit Peters, Eva Julia Lohse (eds.), Sustainability through Participation? Perspectives from National, European and International Law, 2023

Discussing in a short chapter how Sustainable Development (SD) relates to international investmen... more Discussing in a short chapter how Sustainable Development (SD) relates to
international investment law is an almost herculean task. This is due both to the inextricable yet non-linear link between the two, which have multiple
points of contact, and to the many doctrinal sources focusing on such a relationship, which can be studied from both a practical and legal perspective. The practical approach aims to understand the actual contribution of Foreign Direct Investment (FDI) and International Investment Agreements (IIA s) to SD (a role which is schematically outlined in Section 2). The legal approach questions how SD has been, and could be, factored into international investment law (a problem briefly addressed in Section 3). The first part of this chapter will show that, despite the fact that the economic literature does not unanimously confirm the positive role of FDI in fostering development and, also, of IIA s in promoting FDI, States are not demonstrating a true interest in properly redesigning this branch of law. The reform currently under consideration mainly deals with procedural questions, whereas the legal novelties of substantive nature scattered all over the investment regime tackle the issue of SD in an erratic manner. Something similar can be said with regard to public participation, which, also due to the legitimacy crisis that hit the investment system, has recently drawn the attention of scholars and international institutions
(Section 4). How participation and SD can be best combined, however, is
a problem that deserves greater consideration.

Recent State Practice on the Exploitation of Space Resources: Possibly Unlawful, Probably Useless, Certainly Detrimental

Rivista del Diritto della Navigazione, 2023

Legal doctrine has been discussing the issue of space resource exploitation since the dawn of the... more Legal doctrine has been discussing the issue of space resource exploitation since the dawn of the space era. However, for decades this scientific vitality was not matched, for obvious reasons, by the liveliness of State’s practice and opinio iuris. Things are now changing, though. The current «rediscovery» of space and the resumption of activities related thereto led many governments to take a stance on the legality of the appropriation of space resources. This makes a legal analysis of such developments pressing.
In this contribution such analysis is conducted from different standpoints. The topic is introduced by concisely illustrating the scientific debate on the appropriability of space resources, which revolves around the interpretation of Article II of the 1967 Outer Space Treaty. This is an ambiguous provision, admitting different readings. The main arguments of those who deem the commercial exploitation of space resources as lawful are briefly presented and then challenged, based on a joint interpretation of Article II and the relevant provisions of another treaty, the 1979 Moon Agreement. Here the idea is advocated for that the utilization of space resources is permissible for exploration only.
Thereafter, a review is carried out of the practice of some States that, in the last years, enacted legislation according private actors property rights over the space resources they extracted. In light of the preceding analysis, these mining activities are said to be possibly illicit; what is more, the very same laws of these States might be in breach of international law – even though, if duly supported by other countries, such laws could be conducive to a change of the normative framework.
This is the heart of the problem. We are witnessing a practice that tries to pave the way, by legal means, to the interests of a handful of Western States (thus raising a legitimacy issue before the international community), but that is unable to provide the legal certainty it strives for, for the reasons here explained. Therefore, it is a practice both useless and detrimental. This makes the negotiation of a treaty on space resources all the more urgent.

The Human Right to Water in Italy’s Foreign Policy and Domestic Law

Paolo Turrini, Antonio Massarutto, Marco Pertile, Alessandro de Carli (eds.), Water Law, Policy and Economics in Italy: Between National Autonomy and EU Law Constraints, 2021

The tenth anniversary since the adoption by the United Nations General Assembly of a resolution r... more The tenth anniversary since the adoption by the United Nations General Assembly of a resolution recognising the right to water is a good occasion for taking stock of Italy’s efforts in implementing this right. The human rights discourse in water matters has often resonated in civil society’s initiatives in the last decade, so that it cannot be excluded that these stances have influenced the relatively fast evolution of the Italian legislation in this field. Indeed, in the very last years some laws have been passed that require the competent regulatory authority – ARERA – to take into account the basic needs of users in formulating the pricing scheme for what is known as the integrated water service, as well as in putting forth the rules limiting disconnection from the service. The authority, however, has not been the only institutional actor to move in this direction: governmental bodies at any level have done so, from Municipalities to Regions, up to the national legislature. Even though this process has not been devoid of some conflictual aspects, which have also involved the judiciary, something that can be called a “right to water” is definitely taking shape in Italy – as the Country’s domestic legal system and foreign policy seem to witness.

Between a “Go Back!” and a Hard (to Find) Place (of Safety): On the Rules and Standards of Disembarkation of People Rescued at Sea

Italian Yearbook of International Law, 2019

The State with the shore closest to the place of the maritime accident. The State where the human... more The State with the shore closest to the place of the maritime accident. The State where the humanitarian NGO scouring the seas to save the lives of migrants is registered. The flag State of the rescue vessel run by the NGO. The State of nationality of the shipowner or the charterer. These are all options that, in recent times, have surfaced in the comments of politicians and public officials, sometimes insistently, when speaking about the due place of disembarkation of people rescued at sea - the well-known place of safety. It can be doubted, however, that all these stances are sincere manifestations of legal convictions, as, for instance, it is hard to believe that a government can deem as lawful the pushing back of migrants to a State where their physical and psychological integrity is at risk, in spite of the principle of non-refoulement, just because such a country took on the coordination of the rescue mission. Therefore, it is likely that the confusion that reigns on this matter serves political purposes, to a great extent. This notwithstanding, the current situation may also be the result of a certain reticence of the existing international norms on the place of disembarkation of rescuees. This contribution aims at dispelling some misconceptions on the issue and advances the argument that, in general, the shipmaster retains a great deal of liberty in deciding where to make landfall.

Note: Many thanks to Brill for authorizing the free publication of this article.

The Sky’s Not the Limit: Legal Bonds and Boundaries in Claiming Sovereignty over Celestial Bodies

Tommaso Natoli, Alice Riccardi (eds.), Borders, Legal Spaces and Territories in Contemporary International Law: Within and Beyond, 2019

That the claiming of sovereignty on celestial bodies is a topical issue, one that might get newsp... more That the claiming of sovereignty on celestial bodies is a topical issue, one that might get newspapers' headlines in the near future, is pretty evident. Public entities as well as private actors are studying, if not explicitly scheduling, missions destined to land on the Red Planet and colonize it. What about the law regulating such conduct? In the last decade or so, we have witnessed a revival of legal studies on space affairs, and those relating to the legality of the extraction of planetary resources have in particular flourished. However, the possibility of asserting sovereignty over those bodies, or part thereof, did not partake in such revival. This contribution takes the issue seriously, as it aims to understand which rules apply when we reach the final frontier. The same old answer: 'the Outer Space Treaty applies' is not satisfactory, for a number of reasons that relate to its uncertain legal status and even its somewhat uncertain content. These factors might prevent the scramble for Mars from being legally hindered. Irrespective of the treaty's status, someone might try to establish a colony on a celestial body. This contribution analyzes the conditions under which the space homesteaders would be entitled to lay a valid sovereign claim on it; conversely, it answers the question whether the Earthlings would be bound to a duty of non-recognition of the new entity. A problem remains open: is there a possibility that international law at the (final) frontier might turn into the frontier of international law?

Just Dipping a Toe in the Water? On the Reconciliation of the European Institutions with Article 9 of the Water Framework Directive

Georgetown Environmental Law Review, 2018

In 2000, a provision requiring the full recovery of the costs of water services—Article 9 of the ... more In 2000, a provision requiring the full recovery of the costs of water services—Article 9 of the Water Framework Directive—was hailed by many as a notable innovation in the environmental policy of the European Union (“EU”) and a major advance in water management. Almost twenty years later however, it is apparent that Article 9 has not triggered a real change in the behavior of Member States. This article investigates the causes of Article 9’s underwhelming impact, finding them in the many legal problems affecting the provision (in particular, the existence of a variety of goals underlying the principle of full cost recovery), as well as in the approaches taken by the two institutions mainly responsible for its implementation: the European Commission and the European Court of Justice. The Commission takes the execution of Article 9 seriously, but its commitment to its State aid policy has undermined Article 9’s impact. At the same time, the court has thus far advanced a rather stripped-back interpretation of the provision. A careful analysis of these issues may help the EU reconcile Article 9’s goals with those of other important continental policies—and, at the same time, further a better understanding of central questions in environmental law and policy. The intertwining of multiple, uncoordinated actors, multiple policies with only partially different objectives, multiple competing objectives within the same policy, and multiple means to the same end, makes Article 9 of the Water Framework Directive a wonderful case study for those interested in both EU and environmental law.

Publication on Academia courtesy of the Georgetown Environmental Law Review.

Virtual water: a global economic solution to a local environmental and political problem?

Synopsis: today, the literature on virtual water is immense, its greatest part being devoted to c... more Synopsis: today, the literature on virtual water is immense, its greatest part being devoted to calculate the virtual water content of goods and even services. Sharp theoretical studies exist, of course, though they are just a fragment of the writings on the subject, and their criticisms seem not to have had a serious impact in the field. The present chapter builds upon this critical theory in order to briefly reconstruct the rationale underlying the idea of virtual water as well as to highlight some ambiguities and unresolved problems that lie at its heart. This is done also through the lens of law, a discipline usually left at the margin of the debate on virtual water.

Participatory Rights and the Notion of Interest in Environmental Decision-making: a Theoretical Sketch and Some International Legal Considerations

Synopsis: notwithstanding the ever-growing importance of public participation in both the politic... more Synopsis: notwithstanding the ever-growing importance of public participation in both the political discourse and legal practice, the notion of "interest" on which participation is often hinged has not been – the author maintains – duly investigated. This study aims to offer a theoretical contribution to this issue, by analysing how interest, understood as a legal device allowing for participation in environmental decision-making, works and how it can be broken up into different components. Additional considerations are present that intend to address the way international law approaches the relationship between interest and participation.

Water, from One State to Another - The Wavering Legal Status of Water and its Export in Bulk under International Trade Law

It is well known that water is one of the most precious resources of the planet, serving a number... more It is well known that water is one of the most precious resources of the planet, serving a number of fundamental purposes that range from addressing basic human needs (drinking water and sanitation), to supporting economic growth (agricultural and industrial uses), to preserving the environment (along with all the attached ecosystem services). It is equally known that water is not fairly distributed among countries, so that some of them may be defined as waterscarce and others as water-abundant. Many scholars from different academic backgrounds maintain that the former may overcome this problem by purchasing water from the latter, an option the legal contours of which are still surprisingly blurred. This article aims at shedding light on this issue and, in particular, it contributes to the existing legal literature in two respects. On the one hand, and more directly, it purports to bring forward the stalemated debate on the international legal framework applicable to bulk water transfers in order to understand which rules apply and to what extent. It is thus made clear that the multifaceted nature of water creates a complex legal entanglement with international trade law that rules out any plain answer. On the other hand, the article profits from the encounter between this highly technical field of law and an all-but-conventional good such as water in order to unearth some hidden deficiencies of the trade law system relating to oft-used concepts, especially the notions of ‘resource’, ‘product’, ‘like product’ and ‘service’. This promotes a better understanding of its functioning.

Who Decides? A Formalistic Approach to the Role of States and Non-State Actors in Interpretive Decision-Making

International Investment Law: The Anarchical Society Where Development and Sustainability Are Frenemies and Participation Plays Gooseberry

Birgit Peters, Eva Julia Lohse (eds.), Sustainability through Participation? Perspectives from National, European and International Law, 2023

Discussing in a short chapter how Sustainable Development (SD) relates to international investmen... more Discussing in a short chapter how Sustainable Development (SD) relates to
international investment law is an almost herculean task. This is due both to the inextricable yet non-linear link between the two, which have multiple
points of contact, and to the many doctrinal sources focusing on such a relationship, which can be studied from both a practical and legal perspective. The practical approach aims to understand the actual contribution of Foreign Direct Investment (FDI) and International Investment Agreements (IIA s) to SD (a role which is schematically outlined in Section 2). The legal approach questions how SD has been, and could be, factored into international investment law (a problem briefly addressed in Section 3). The first part of this chapter will show that, despite the fact that the economic literature does not unanimously confirm the positive role of FDI in fostering development and, also, of IIA s in promoting FDI, States are not demonstrating a true interest in properly redesigning this branch of law. The reform currently under consideration mainly deals with procedural questions, whereas the legal novelties of substantive nature scattered all over the investment regime tackle the issue of SD in an erratic manner. Something similar can be said with regard to public participation, which, also due to the legitimacy crisis that hit the investment system, has recently drawn the attention of scholars and international institutions
(Section 4). How participation and SD can be best combined, however, is
a problem that deserves greater consideration.

Recent State Practice on the Exploitation of Space Resources: Possibly Unlawful, Probably Useless, Certainly Detrimental

Rivista del Diritto della Navigazione, 2023

Legal doctrine has been discussing the issue of space resource exploitation since the dawn of the... more Legal doctrine has been discussing the issue of space resource exploitation since the dawn of the space era. However, for decades this scientific vitality was not matched, for obvious reasons, by the liveliness of State’s practice and opinio iuris. Things are now changing, though. The current «rediscovery» of space and the resumption of activities related thereto led many governments to take a stance on the legality of the appropriation of space resources. This makes a legal analysis of such developments pressing.
In this contribution such analysis is conducted from different standpoints. The topic is introduced by concisely illustrating the scientific debate on the appropriability of space resources, which revolves around the interpretation of Article II of the 1967 Outer Space Treaty. This is an ambiguous provision, admitting different readings. The main arguments of those who deem the commercial exploitation of space resources as lawful are briefly presented and then challenged, based on a joint interpretation of Article II and the relevant provisions of another treaty, the 1979 Moon Agreement. Here the idea is advocated for that the utilization of space resources is permissible for exploration only.
Thereafter, a review is carried out of the practice of some States that, in the last years, enacted legislation according private actors property rights over the space resources they extracted. In light of the preceding analysis, these mining activities are said to be possibly illicit; what is more, the very same laws of these States might be in breach of international law – even though, if duly supported by other countries, such laws could be conducive to a change of the normative framework.
This is the heart of the problem. We are witnessing a practice that tries to pave the way, by legal means, to the interests of a handful of Western States (thus raising a legitimacy issue before the international community), but that is unable to provide the legal certainty it strives for, for the reasons here explained. Therefore, it is a practice both useless and detrimental. This makes the negotiation of a treaty on space resources all the more urgent.

The Human Right to Water in Italy’s Foreign Policy and Domestic Law

Paolo Turrini, Antonio Massarutto, Marco Pertile, Alessandro de Carli (eds.), Water Law, Policy and Economics in Italy: Between National Autonomy and EU Law Constraints, 2021

The tenth anniversary since the adoption by the United Nations General Assembly of a resolution r... more The tenth anniversary since the adoption by the United Nations General Assembly of a resolution recognising the right to water is a good occasion for taking stock of Italy’s efforts in implementing this right. The human rights discourse in water matters has often resonated in civil society’s initiatives in the last decade, so that it cannot be excluded that these stances have influenced the relatively fast evolution of the Italian legislation in this field. Indeed, in the very last years some laws have been passed that require the competent regulatory authority – ARERA – to take into account the basic needs of users in formulating the pricing scheme for what is known as the integrated water service, as well as in putting forth the rules limiting disconnection from the service. The authority, however, has not been the only institutional actor to move in this direction: governmental bodies at any level have done so, from Municipalities to Regions, up to the national legislature. Even though this process has not been devoid of some conflictual aspects, which have also involved the judiciary, something that can be called a “right to water” is definitely taking shape in Italy – as the Country’s domestic legal system and foreign policy seem to witness.

Between a “Go Back!” and a Hard (to Find) Place (of Safety): On the Rules and Standards of Disembarkation of People Rescued at Sea

Italian Yearbook of International Law, 2019

The State with the shore closest to the place of the maritime accident. The State where the human... more The State with the shore closest to the place of the maritime accident. The State where the humanitarian NGO scouring the seas to save the lives of migrants is registered. The flag State of the rescue vessel run by the NGO. The State of nationality of the shipowner or the charterer. These are all options that, in recent times, have surfaced in the comments of politicians and public officials, sometimes insistently, when speaking about the due place of disembarkation of people rescued at sea - the well-known place of safety. It can be doubted, however, that all these stances are sincere manifestations of legal convictions, as, for instance, it is hard to believe that a government can deem as lawful the pushing back of migrants to a State where their physical and psychological integrity is at risk, in spite of the principle of non-refoulement, just because such a country took on the coordination of the rescue mission. Therefore, it is likely that the confusion that reigns on this matter serves political purposes, to a great extent. This notwithstanding, the current situation may also be the result of a certain reticence of the existing international norms on the place of disembarkation of rescuees. This contribution aims at dispelling some misconceptions on the issue and advances the argument that, in general, the shipmaster retains a great deal of liberty in deciding where to make landfall.

Note: Many thanks to Brill for authorizing the free publication of this article.

The Sky’s Not the Limit: Legal Bonds and Boundaries in Claiming Sovereignty over Celestial Bodies

Tommaso Natoli, Alice Riccardi (eds.), Borders, Legal Spaces and Territories in Contemporary International Law: Within and Beyond, 2019

That the claiming of sovereignty on celestial bodies is a topical issue, one that might get newsp... more That the claiming of sovereignty on celestial bodies is a topical issue, one that might get newspapers' headlines in the near future, is pretty evident. Public entities as well as private actors are studying, if not explicitly scheduling, missions destined to land on the Red Planet and colonize it. What about the law regulating such conduct? In the last decade or so, we have witnessed a revival of legal studies on space affairs, and those relating to the legality of the extraction of planetary resources have in particular flourished. However, the possibility of asserting sovereignty over those bodies, or part thereof, did not partake in such revival. This contribution takes the issue seriously, as it aims to understand which rules apply when we reach the final frontier. The same old answer: 'the Outer Space Treaty applies' is not satisfactory, for a number of reasons that relate to its uncertain legal status and even its somewhat uncertain content. These factors might prevent the scramble for Mars from being legally hindered. Irrespective of the treaty's status, someone might try to establish a colony on a celestial body. This contribution analyzes the conditions under which the space homesteaders would be entitled to lay a valid sovereign claim on it; conversely, it answers the question whether the Earthlings would be bound to a duty of non-recognition of the new entity. A problem remains open: is there a possibility that international law at the (final) frontier might turn into the frontier of international law?

Just Dipping a Toe in the Water? On the Reconciliation of the European Institutions with Article 9 of the Water Framework Directive

Georgetown Environmental Law Review, 2018

In 2000, a provision requiring the full recovery of the costs of water services—Article 9 of the ... more In 2000, a provision requiring the full recovery of the costs of water services—Article 9 of the Water Framework Directive—was hailed by many as a notable innovation in the environmental policy of the European Union (“EU”) and a major advance in water management. Almost twenty years later however, it is apparent that Article 9 has not triggered a real change in the behavior of Member States. This article investigates the causes of Article 9’s underwhelming impact, finding them in the many legal problems affecting the provision (in particular, the existence of a variety of goals underlying the principle of full cost recovery), as well as in the approaches taken by the two institutions mainly responsible for its implementation: the European Commission and the European Court of Justice. The Commission takes the execution of Article 9 seriously, but its commitment to its State aid policy has undermined Article 9’s impact. At the same time, the court has thus far advanced a rather stripped-back interpretation of the provision. A careful analysis of these issues may help the EU reconcile Article 9’s goals with those of other important continental policies—and, at the same time, further a better understanding of central questions in environmental law and policy. The intertwining of multiple, uncoordinated actors, multiple policies with only partially different objectives, multiple competing objectives within the same policy, and multiple means to the same end, makes Article 9 of the Water Framework Directive a wonderful case study for those interested in both EU and environmental law.

Publication on Academia courtesy of the Georgetown Environmental Law Review.

Virtual water: a global economic solution to a local environmental and political problem?

Synopsis: today, the literature on virtual water is immense, its greatest part being devoted to c... more Synopsis: today, the literature on virtual water is immense, its greatest part being devoted to calculate the virtual water content of goods and even services. Sharp theoretical studies exist, of course, though they are just a fragment of the writings on the subject, and their criticisms seem not to have had a serious impact in the field. The present chapter builds upon this critical theory in order to briefly reconstruct the rationale underlying the idea of virtual water as well as to highlight some ambiguities and unresolved problems that lie at its heart. This is done also through the lens of law, a discipline usually left at the margin of the debate on virtual water.

Participatory Rights and the Notion of Interest in Environmental Decision-making: a Theoretical Sketch and Some International Legal Considerations

Synopsis: notwithstanding the ever-growing importance of public participation in both the politic... more Synopsis: notwithstanding the ever-growing importance of public participation in both the political discourse and legal practice, the notion of "interest" on which participation is often hinged has not been – the author maintains – duly investigated. This study aims to offer a theoretical contribution to this issue, by analysing how interest, understood as a legal device allowing for participation in environmental decision-making, works and how it can be broken up into different components. Additional considerations are present that intend to address the way international law approaches the relationship between interest and participation.

Water, from One State to Another - The Wavering Legal Status of Water and its Export in Bulk under International Trade Law

It is well known that water is one of the most precious resources of the planet, serving a number... more It is well known that water is one of the most precious resources of the planet, serving a number of fundamental purposes that range from addressing basic human needs (drinking water and sanitation), to supporting economic growth (agricultural and industrial uses), to preserving the environment (along with all the attached ecosystem services). It is equally known that water is not fairly distributed among countries, so that some of them may be defined as waterscarce and others as water-abundant. Many scholars from different academic backgrounds maintain that the former may overcome this problem by purchasing water from the latter, an option the legal contours of which are still surprisingly blurred. This article aims at shedding light on this issue and, in particular, it contributes to the existing legal literature in two respects. On the one hand, and more directly, it purports to bring forward the stalemated debate on the international legal framework applicable to bulk water transfers in order to understand which rules apply and to what extent. It is thus made clear that the multifaceted nature of water creates a complex legal entanglement with international trade law that rules out any plain answer. On the other hand, the article profits from the encounter between this highly technical field of law and an all-but-conventional good such as water in order to unearth some hidden deficiencies of the trade law system relating to oft-used concepts, especially the notions of ‘resource’, ‘product’, ‘like product’ and ‘service’. This promotes a better understanding of its functioning.

Who Decides? A Formalistic Approach to the Role of States and Non-State Actors in Interpretive Decision-Making