NOTES AND COMMENTS THE 2022 “ENVIRONMENTAL REFORM” OF THE ITALIAN CONSTITUTION AND INTERNATIONAL LAW Donato Greco* Abstract The present contribution deals with the amendment to Article 9 of the Italian Constitution introduced by Constitutional Law No. 1 of 11 February 2022 which foresees a duty for the Italian Republic to protect the environment, biodiversity and ecosystems, also in the interest of future generations. The contribution pursues a twofold objective. First, it aims to analyse the content of the reform to appraise its impact on environmental protection in the Italian legal system, also in light of the previous case law of the Italian Constitutional Court. Second, it intends to assess the influence of international (environmental) law on the amendment to the Constitution. In this respect, it will be argued that the relationship between domestic law and international law follows two main trajectories: on the one hand, the constitutionalisation of international law and, on the other, the internationalisation of constitutional law. Keywords: Italian Constitution; environmental protection; biodiversity; ecosystems; future generations; constitutional principles and value. 1. Introduction With Constitutional Law No. 1 of 11 February 2022,1 the Italian Parliament amended Article 9 of the Constitution,2 expressly introducing environmental protection among the constitutive principles of the national legal system. It is the very first time Assistant Professor of International Law, LUISS Guido Carli, Rome, Department of Law. Constitutional Law No. 1 of 11 February 2022, Modifiche agli articoli 9 e 41 della Costituzione in materia di tutela dell’ambiente, in force on 9 March 2022, GU No. 44 of 22 February 2022, Art. 1. See Bifulco, “Primissime riflessioni intorno alla l. cost. 1/2022 in materia di tutela dell’ambiente”, Federalismi, 6 April 2022, p. 1 ff.; Cecchetti, “La revisione degli articoli 9 e 41 della Costituzione e il valore costituzionale dell’ambiente: tra rischi scongiurati, qualche virtuosità (anche) innovativa e molte lacune”, Forum di Quaderni Costituzionali, No. 3, 2021, p. 295 ff.; Guerra and Mazza, “La proposta di modifica degli articoli 9 e 41 Cost.; una prima lettura”, Forum di Quaderni costituzionali, No. 4, 2021, p. 109 ff. In the context of a wider research, see Palombino (G.), Il principio di equità generazionale. La tutela costituzionale del futuro, Milano, 2022, pp. 101-118. 2 As regards the former version of Art. 9 of the Constitution, see the commentaries by Merusi, “Art. 9”, in Branca (ed.), Commentario della Costituzione. Art. 1-12. Principi fondamentali, Bologna/ Roma, 1975, p. 434 ff.; Cecchetti, “Art. 9”, in Bifulco, Celotto and Olivetti (eds.), Commentario alla Costituzione, Torino, 2006, p. 217 ff. (see the online update to 2022 by Lerro and Tripodi); Betzu, “Art. 9”, in Bartole and Bin (eds.), Commentario breve alla Costituzione, 2nd ed., Milano, 2008, p. 70 ff.; Montanari, Art. 9. Costituzione italiana, Roma, 2018; Repetto, “Art. 9”, in Clementi et al. (eds.), La Costituzione italiana. Commento articolo per articolo, 2nd ed., Vol. I, Bologna, 2021, p. 70 ff. * 1 IYIL, Vol. 32 (2022), pp. 263-279 ISSN 0391-5107 264 NOTES AND COMMENTS the legislature has reformed one of the fundamental principles enshrined in the first twelve provisions of the Constitutional Charter.3 The Constitution originally lacked a provision specifically dedicated to environmental protection. In the 1947 version, Article 9 read: “[t]he Republic promotes the development of culture and of scientific and technical research. It safeguards natural landscape and the historical and artistic heritage of the Nation”.4 The 2022 reform left these two paragraphs unchanged and added a third paragraph, according to which “[the Republic] protects the environment, biodiversity and ecosystems, also in the interest of future generations. State law regulates the means and forms of animal protection”. At the same time, it also clarified, through a simultaneous amendment to Article 41 of the Constitution, that the protection of the environment might well constitute a limit to freedom of economic enterprise.5 Certainly, this reform does not constitute an isolated initiative in the international community but is part of a general trend involving national constitutions dating back to the 70s, the majority of which did not originally contain a provision on environmental protection. It is only recently that the concerns related to climate change 3 An issue deserving attention in this context concerns the limits of the power of constitu� constitutional amendment in the Italian legal system. In addition to the explicit limit of the republican form of the State (Art. 139 of the Constitution), the power of revision is implicitly limited by the “supreme principles that cannot be subverted or modified in their essential content not even by constitutional revision laws or other constitutional laws” (Constitutional Court, Judgment No. 1146 of 1988). This normative category includes, according to the Constitutional Court, those “principles that, although not expressly mentioned among those that cannot be subjected to the constitutional revision procedure, belong to the essence of the supreme values on which the Italian Constitution is founded” (ibid., para. 2.1 of the conclusions on points of law). ). On these premises, some constitu� constitutional law scholars maintain that Constitutional Law No. 1/2022 represents a dangerous precedent insofar as it amended one of the first twelve provisions of the Constitution, which fell under the heading of “fundamental principles” and could not be modified (Frosini, “La Costituzione in senso ambientale. Una critica”, Federalismi, 23 June 2021; Severini and Carpentieri, “Sull’inutile, anzi dannosa modifica dell’articolo 9 della Costituzione”, Giustizia Insieme, 22 September 2021; Porena, “«Anche nell’interesse delle generazioni future». Il problema dei rapporti intergenerazionali all’indomani della revisione dell’art. 9 della Costituzione”, Federalismi, No. 15, 2022, p. 121 ff., p. 125). This view is unconvincing because it confuses a substantive assessment as to the “essence of the supreme values on which the Constitution is based” with the formal position that Art. 9 occupies in the Constitutional Charter (Cecchetti, cit. supra note 1,, p. 308). Moreover, the constitutional revirevi� sion under examination is a “codification reform” that not only consolidates a body of law already elaborated in constitutional case law but also does so by leaving unchanged the first two paragraphs of Art. 9 and adding a third paragraph that extends and does not reduce the scope of constitutional guarantees. Therefore, it can hardly be accepted that the amendment entails a subversion of the essential content of a supreme principle of the Constitution (Cecchetti, cit. supra note 1, p. 309; Bifulco, cit. supra note 1, p. 3; Palombino, cit. supra note 1, p. 113). 4 Constitution of the Italian Republic, official English translation, <https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf>. 5 Art. 41 now states that “[p]rivate economic enterprise shall be free. It cannot be carried out in conflict with social utility or in such a manner that could harm health, the environment, safety, liberty and human dignity. The law shall provide for appropriate programmes and controls to ensure that public and private economic activity be directed at and coordinated for social and environmental purposes” (amended text emphasised). “ENVIRONMENTAL REFORM” OF THE ITALIAN CONSTITUTION 265 and environmental pollution,6 on the one hand, and international law obligations, on the other, led several countries to constitutionalise and strengthen environmental protection in their own legal systems.7 A prominent example comes from Germany, where in 1994 Article 20a was introduced in the Basic Law (Grundgesetz) and later amended in 2002 to ensure the protection of animals.8 The provision now reads: “[m] indful also of its responsibility towards future generations, the State shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order”. Against this backdrop, there can be no doubt that Constitutional Law No. 1 of 2022 marks a significant step in the development of a constitutional law for the environment.9 The present contribution aims first to analyse the content of the reform to assess its impact on the Italian legal system. As the amendment provides a good opportunity to reflect on how domestic law and international law influence each other, a second objective is to shed light on what the reform means for their relationship. Sections 2 and 3 deal with Italian constitutional environmental law pre�dating the 2022 reform, as this is instrumental in understanding the context that led to the amendment and in assessing its overall impact. This part will not only focus on earlier attempts to amend Article 9 of the Constitution but also on the previous case law of the Constitutional Court relating to the protection of the environment. Sections 4 and 5 outline the scope of the reform and provide a general assessment of its effects in the Italian legal system. Section 6 concludes with a few general remarks on the significance of the reform of Article 9 of the Constitution for the relationship between domestic law and international law in light of their reciprocal influence. This relationship seems to follow two main trajectories: on the one hand, the (domestic) constitutionalisation of international law, that is to say a top�down process through which domestic law implements norms of international law at the constitutional level10. As a consequence, the determination of the content of constitutional law norms will be more easily driven by principles and rules of international law. On the 6 Salvemini, “Dal cambiamento climatico alla modifica della Costituzione: i passi per la tutela del futuro (non solo nostro)”, Federalismi, No. 20, 2021, p. 63 ff. 7 See Araújo and Koessler, “The Rise of the Constitutional Protection of Future Generations”, Verfassungsblog, 12 August 2022, where the authors note that “[c]onstitutions worldwide have seen the rise of future generations. Considering the 193 UN member states, Kosovo, Palestine, and Taiwan, 41% (81 out of 196) of constitutions explicitly referenced future generations as of 2021. We find that this trend started in the early 1990s, lagging behind environmental constitutionalism by two decades”. 8 On the long�standing process that led to the introduction of Art. 20a into the German Basic Law, see Ferrara, “La protezione dell’ambiente nella Repubblica federale tedesca: tendenze evolutive”, Foro It., 1987, p. 20 ff. 9 As general references on constitutional environmental law, see Caravita and Morrone, “Ambiente e Costituzione”, in Caravita, Cassetti and Morrone (eds.), Diritto dell’ambiente, Bologna, 2016, p. 17 ff.; Cecchetti, Principi costituzionali per la tutela dell’ambiente, Milano, 2000. 10 In the present work, the expression “constitutionalisation of international law” is used to refer to one of the possible interactions between international law and domestic law. It should thus be distinguished from the different notion used by some scholars to describe the evolution of the international legal system towards a legal system having the typical features of a constitutional order. On 266 NOTES AND COMMENTS other hand, the internationalisation of constitutional law, namely a bottom�up process through which the progressive development of international law is influenced by values stemming from domestic legal orders. 2. A Flashback Like many other national constitutions contemporary to it, the original version of the Italian Constitution did not contain an explicit reference to the environment and environmental protection. Yet, the 2022 reform was anticipated by at least three relevant initiatives. Preliminarily, it must be recalled that starting in the late 1970s, the Italian Constitutional Court, under the pressure of international law,11 gradually shaped a form of constitutional protection of the environment, anchoring it to the concept of “landscape” enshrined in Article 9 of the Constitution.12 This aspect is discussed below. The first initiative dates back to 2001, when Constitutional Law No. 3 reformed Title V of the Constitution, introducing the “protection of the environment and the ecosystem” among the matters of exclusive legislative competence of the central State pursuant to Article 117(2)(s). In the following years, two further proposed reforms were unsuccessful. In 2003, an attempt was made to introduce a third paragraph into Article 9 of the Constitution, which stated that the Republic “shall protect the environment and ecosystems, including in the interest of future generations. It shall protect biodiversity and promotes respect for animals”.13 The most ambitious initiative came in 2012, when Constitutional Bill No. 5560 sought to introduce four new paragraphs into Article 9 of the Constitution. These paragraphs were very innovative: on the one hand, they specified that “environmental protection” included conservation, rational management, and improvement of the natural conditions of air, water, and soil. On the other hand, they enshrined the individual and collective right to environmental protection and the duty of all citizens to conserve natural resources, also for the purpose of securing “the right of future generations to environmental protection”. Most recently, with Constitutional Bill No. 143 of 2018, the legislature sought to combine the first two paragraphs of Article 9 into a single provision and introduce a new second paragraph, according to which the Republic “shall recognise the ecosystem as an inviolable good of the Nation and the planet, belonging to all mankind, and this latter notion, see Klabbers, Peters and Ulfstein, The Constitutionalisation of International Law, Oxford, 2009. 11 Cecchetti, cit. supra note 1, pp. 235 and 300; Repetto, cit. supra note 2, pp. 71 and 74; Palombino, cit. supra note 1, p. 109. 12 Predieri, “Paesaggio”, EdD, Vol. XXXI, 1981, p. 503 ff.; Id., “Significato della norma costituzionale sulla tutela del paesaggio”, in Studi per il XX anniversario dell’Assemblea costituente, Vol. II (Le libertà civili e politiche), Firenze, 1969, p. 381 ff. 13 Chamber of Deputies, Constitutional Bill No. 4307, Modifica all’articolo 9 della Costituzione con l’introduzione del concetto di ambiente, presented on 24 September 2003, XIV Legislature. “ENVIRONMENTAL REFORM” OF THE ITALIAN CONSTITUTION 267 shall encourage its protection from environmental degradation and contamination. It shall guarantee respect for animals and biodiversity”.14 These failed attempts show that, at least since the beginning of the new millennium, the constitutionalisation of environmental protection has become an increasingly urgent concern in Italy. They went hand in hand with the most significant developments that have marked international environmental and climate change law in recent decades: for instance, the Kyoto Protocol to the UN Framework Convention on Climate Change dates back to 1997 and entered into force in 2005, whereas the Paris Agreement was concluded in 2015 and entered into force in 2016. While this is the international context that led to the reform, it is worth recalling that the occasio legis was provided by the legislature’s will to follow up on the undertakings assumed at the European level.15 With such instruments as the European Green Deal and Next Generation EU, the European Union (EU) has placed environmental protection at the centre of its political and legal agenda, particularly in view of the increasing threat posed by climate change. 3. The Case Law of the Constitutional Court As already mentioned, the 1947 Constitution contained no reference to the “environment”. However, this gap was gradually filled by the Constitutional Court through an extensive interpretation of the concept of “landscape”. Thus, there has been a transition from a purely static conception of landscape as a set of natural beauties whose aesthetic�cultural value must be preserved, to a more dynamic conception of “a physical, objective fact but, at the same time, a continuous creative process, incapable of being understood as an immobile reality”.16 In the Constitutional Court’s view, it includes “every natural and human element pertaining to the external form of the territory”.17 As from the end of the 1970s, a series of decisions followed, in which, grasping the existing connections between health and environmental protection, Italian supreme courts developed a case law on the human right to a healthy environment.18 Although based on an anthropocentric understanding of environmental protection, this jurisprudence appeared then, and indeed was, of highly innovative character. By reading Article 9 of the Constitution in conjunction with Article 32, which enshrines the right to health, the Constitutional Court came to qualify the environment as a fundamental principle19 and constitutional value.20 In this context, the Court recognised that “the environment is protected as a determinant of quality of life” and that 14 Chamber of Deputies, Constitutional Bill No. 143, Modifica dell’articolo 9 della Costituzione, in materia di tutela dell’ecosistema e delle biodiversità, presented on 23 March 2018, XVIII Legislature. 15 Salvemini, cit. supra note 6. 16 Predieri, cit. supra note 12, p. 506. 17 Constitutional Court, Judgment No. 39 of 1986 (author’s translation). 18 Civil Cassation, Judgment No. 5172 of 1979. 19 Constitutional Court, Judgment No. 94 of 1985. 20 Constitutional Court, Judgments Nos. 167, 191 and 210 of 1987. More recently, Judgment No. 407 of 2002. On this point, see Morbidelli, “Il regime amministrativo speciale dell’ambiente”, in Studi in onore di Alberto Predieri, Milano, 1996, p. 1133 ff. 268 NOTES AND COMMENTS its protection does not pursue abstract naturalistic or aesthetic purposes, but expresses the need for a natural habitat in which man lives and which is necessary to the community and to all citizens, according to widely shared values; it is imposed by constitutional provisions (Articles 9 and 32 of the Constitution), under which it constitutes a primary and absolute value.21 To infer the right to a healthy environment from the combined reading of Articles 9 and 32 is even more valid nowadays after the amendment of Article 9. Furthermore, in its case law, the Constitutional Court also acknowledged the interest of future generations in environmental protection.22 In 1988, the Court was called upon to assess the constitutional legitimacy of the 1977 Law on the Protection and Preservation of Fauna,23 which framed “fauna” as the object of mandatory State protection, in line with the Convention on the Conservation of European Wildlife and Natural Habitats.24 The Court upheld the legitimacy of the choice made by the legislature on the grounds that wild flora and fauna play a “fundamental role [...] in the maintenance of biological balances” and therefore constitute “a natural heritage of aesthetic, scientific, cultural, recreational, economic and intrinsic value which must be preserved and passed on to future generations”.25 Another case dealt with Law No. 36 of 1994, which regulated the use of water, setting criteria to ensure the saving and renewal of available resources. Called upon to assess its constitutional legitimacy, the Court concluded that the measure aimed at “safeguarding one of the fundamental values of humankind (and future generations)”, namely “the integrity of the environmental heritage, in which the use of water resources must be included”.26 With regard to the management of water resources, the Constitutional Court was recently called upon to assess the legitimacy of Regional Law No. 19 of 2015,27 by which the Region of Sicily attributed to its Regional Council the task of defining and Constitutional Court, Judgment No. 641 of 1987 (author’s translation). See also Judgments Nos. 1029 and 1031 of 1988, 391 of 1989 and 430 of 1990. More recently, Judgments Nos. 189 and 201 of 2021 and Judgment No. 24 of 2022. 22 Bifulco, Diritto e generazioni future. Problemi giuridici della responsabilità intergenerazionale, Milano, 2008; Bifulco and D’Aloia, Un diritto per il futuro. Teorie e modelli dello sviluppo sostenibile e della responsabilità intergenerazionale, Napoli, 2008; Bifulco, “Futuro e Costituzione. Premesse per uno studio sulla responsabilità verso le generazioni future”, in Abbamonte et al. (eds.), Studi in onore di Gianni Ferrara, Vol. I, Torino, 2005, p. 297 ff.; D’Aloia, “Generazioni future (diritto costituzionale)”, EdD, Vol. IX, 2016, p. 311 ff.; Id., “Costituzione e protezione delle generazioni future?”, in Ciaramelli and Menga (eds.), La responsabilità per le generazioni future. Una sfida al diritto, all’etica e alla politica, Napoli, 2017, p. 293 ff. 23 Law No. 968 of 27 December 1977, Principi generali e disposizioni per la protezione e la tutela della fauna e la disciplina della caccia, GU No. 3 of 4 January 1978. 24 19 September 1979, entered into force 6 January 1982. 25 Constitutional Court, Judgment No. 1002 of 1988, para. 3 of the conclusions on points of law (emphasis added; author’s translation). 26 Constitutional Court, Judgment No. 419 of 1996 (emphasis added; author’s translation). 27 Law No. 19 of 11 August 2015, Disciplina in materia di risorse idriche, GURS No. 34 of 21 August 2015, p. 7. 21 “ENVIRONMENTAL REFORM” OF THE ITALIAN CONSTITUTION 269 approving tariff models of the water cycle. The Court concluded that the regional legislation was in breach of Article 117(2)(e)(s) of the Constitution insofar as it did not comply with State legislation. The Court noted that through the determination of tariffs, the State legislature establishes uniform levels of environmental protection, pursuing the aim of guaranteeing the protection and use of water resources in accordance with criteria of solidarity and thus safeguarding the liveability of the environment and the expectations and rights of future generations to enjoy an intact environmental heritage.28 Lastly, in 2019, the Constitutional Court declared Lombardy Regional Law No. 31 of 2014 unconstitutional,29 insofar as it prevented municipalities from making pro�environment variations to regulatory plans. In doing so, it took note of the existence of an evolutionary process aimed at recognising a new relationship between the territorial community and the environment that surrounds it, within which an awareness of the soil as a non�renewable eco�systemic natural resource, essential for environmental balance, capable of expressing a social function and incorporating a plurality of collective interests and utilities, also of an intergenerational nature, has been consolidated.30 In conclusion, this case law provides a few clear indications. First, the protection of the environment represents a public interest of constitutional importance in the Italian legal system. Secondly, although the human right to a healthy environment is inferred from Articles 9 and 32 of the Constitution, environmental protection is essentially framed as a “primary constitutional value”31 entrusted to public policies and carried out in the interest of future generations. Finally, the environment is seen as a holistic concept and therefore its protection has to be multisectoral and embrace different areas of public intervention.32 4. The Scope of the Amendment The effects of the amendment of Article 9 of the Constitution can be clarified by drawing a distinction between an objective and subjective dimension of its scope. Constitutional Court, Judgment No. 93 of 2017 (emphasis added; author’s translation). Regional Law No. 31 of 28 November 2014, Disposizioni per la riduzione del consumo di suolo e per la riqualificazione del suolo degradato, BURL No. 49 of 1 December 2014. 30 Constitutional Court, Judgment No. 179 of 2019. In a similar vein, Judgments Nos. 210 of 2014 and 71 of 2020. 31 Constitutional Court, Judgments Nos. 358 of 1985, 151 of 1986, 210 of 1987. More recently, see Judgments Nos. 278 of 2012, 246, 145 and 9 of 2013, 210 of 2016, 260 of 2017, 206 and 113 of 2018, 7 of 2019. 32 Constitutional Court, Judgments Nos. 183 of 1987 and 382 of 1999. 28 29 270 NOTES AND COMMENTS As regards the former, although environmental concerns had already emerged in the case law of the Constitutional Court, Constitutional Law No. 1 of 2022 expanded the list of specific legal values explicitly protected by Article 9 of the Constitution, introducing, alongside the landscape, the environment, biodiversity and ecosystems. Considering that pursuant to the terminology of the biological and ecological sciences, the last two concepts, as well as that of landscape, are included in the holistic notion of environment, one might be led to believe that their inclusion or presence in the Constitution is somehow superfluous. Such a conclusion would be misleading, since the choice of the legislature entailed precise consequences. First, the explicit reference to certain major components of the environment should serve to guide the legislature and public administration in adopting public policies capable of protecting the environment in its multiple key dimensions. With specific reference to biodiversity, it might be worth noting that, under international law, the notion means “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems”.33 The notion embraces different areas such as agricultural biodiversity, dry and sub�humid land biodiversity, forest biodiversity, inland waters biodiversity, islands biodiversity, marine and coastal biodiversity, and mountain biodiversity.34 Second, this new constitutional text might have the effect of enabling public authorities to strike a balance between the different components of the environment, when the latter pull in different directions in a specific case.35 For instance, one may imagine a case in which the decision to build wind turbines to ensure the environmentally sustainable supply of electricity entails a certain sacrifice of the aesthetics of the landscape. A further example is the construction of nuclear power plants, which may provide clean energy but also generate long�lasting nuclear waste, adversely affecting the interest of future generations. Turning to its subjective scope, the constitutional reform fits the pre�existing architecture of Article 9 of the Constitution, according to which the State as a whole, its articulations and entities, are called upon to ensure the protection of the values protected by the provision. In other words, the subject implied by the verb “shall protect” is the Republic of Italy which is explicitly mentioned in the first paragraph. This notion must be understood as encompassing every organ of the State, its central body as well as its regional and local governments, each of which may exercise the legislative and administrative powers they have been granted under Articles 117�118 of the Constitution.36 Indeed, during the preparatory works for the Constitution, the use of the term “Republic” instead of “State” was the result of a delicate compromise between 33 1993. Art. 2 of the Convention on Biological Diversity, 5 June 1992, entered into force 29 December 34 Matz�Lück, “Biological Diversity, International Protection”, Max Planck Encyclopedia of Public International Law, December 2008. 35 On this point, however, see Cecchetti, cit. supra note 1, pp. 299�300, where the author seems sceptical about the possibility of such a conflict. 36 On this issue, see Marazzita, “La riforma degli articoli 9 e 41 della Costituzione anche nel rapporto fra Stato e Regioni”, Istituzioni del Federalismo, 2022, p. 875 ff. “ENVIRONMENTAL REFORM” OF THE ITALIAN CONSTITUTION 271 the two factions of statists and regionalists sitting in the Constituent Assembly.37 Moreover, this solution reconciles the tension between the territorial location of environmental assets, on the one hand, and their importance for the entire nation, on the other. Based on their proximity to the local environment whose protection must be ensured, public administrations belonging to different levels of government must act according to the principles of subsidiarity and differentiation and must relate to each other on the basis of the principle of loyal cooperation.38 A significant innovation arising from the reform concerns the explicit reference to the interest of future generations. As explained below, this intergenerational principle affects the modalities of State action.39 In this regard, the legislature duly avoided the creation of human rights of future generations. In line with international law,40 it crystallised intergenerational equity as a general principle. The use of the conjunction “also” in the provision means that, on a subjective level, the protection of the environment, biodiversity and ecosystems constitutes an interest of both present and future generations. In this respect, the provision follows an anthropocentric approach. However, the concomitant objective need for public authorities to provide protection for the constitutional values at stake also supports an ecocentric interpretation of the amended provision.41 The principle of intergenerational equity must guide ex ante the legislature and public administration in the adoption of medium to long�term public policies capable of safeguarding the existence of humanity over time. Ex post, it provides a yardstick of legitimacy for those choices. This is what happened in Germany after the introduction of Article 20a in the Basic Law. In the Neubauer case,42 the German Merusi, cit. supra note 2, p. 6 ff.; Cecchetti, cit. supra note 2, pp. 219-220. Constitutional Court, Judgments Nos. 1029 and 1031 of 1988, 337 of 1989, 366 of 1992 and 127 of 1995. 39 Bartolucci, “Le generazioni future (con la tutela dell’ambiente) entrano ‘espressamente’ in Costituzione”, Forum di Quaderni costituzionali, No. 2, 2021, p. 20 ff. 40 Stefanik, “The Environment and Armed Conflict: Employing General Principles to Protect the Environment”, in Stahn, Iverson and Easterday (eds.), Environmental Protection and Transitions from Conflict to Peace, Oxford, 2017, p. 93 ff., p. 106. 41 On this point see Fattibene, “Una lettura ecocentrica del novellato articolo 9 della Costituzione”, Nomos. Le attualità del diritto, No. 3, 2022. For a critique see Rescigno, “Quale riforma per l’articolo 9?”, Federalismi, 23 June 2021, p. 3, where the author emphasises the “markedly anthropocentric approach” of the text. 42 Deutsche Bundesverfassungsgericht, Neubauer g. die Bundesrepublik Deutschland, Judgment of 24 March 2021, pp. 56�57, paras. 192�193. Intergenerational equity has met with considerable suc� success in climate change litigation. Different jurisdictions have taken the principle into account when considering the existence of positive obligations on States to take all necessary measures to prevent harm to the interest of future generations from the adverse effects of climate change. The Salamanca Mancera and Urgenda decisions pioneered climate change litigation before domestic jurisdictions. In the first case, the Colombian Supreme Court upheld the application of 25 plaintiffs between the ages of seven and 26, claiming that the enjoyment of many fundamental rights is intrinsically linked to the protection of the environment and concluding that the Colombian Government had a duty to adopt a plan against the deforestation of that part of the Amazon rainforest that is on national territory. In reaching this conclusion, the Court based several passages of its reasoning on the principle of intergenerational equity. Cf. Corte Suprema de Justicia (Sala de casación civil), A.M. Salamanca Mancera et al. v. Presidencia de la República de Colombia et al., Judgment of 5 April 2018, 37 38 272 NOTES AND COMMENTS Constitutional Court (Bundesverfassungsgericht) declared the Federal Law on Climate Protection (Bundesklimaschutzgesetz) unconstitutional under Article 20a because it had not provided for adequate measures to reduce CO2 emissions beyond 2030. In reaching this conclusion, the judges emphasised the principle of intergenerational equity, noting that Article 20a is primarily aimed at preserving natural sources of life in the interest of future generations, and that, therefore, one generation cannot be allowed to consume large portions of the CO2 budget while bearing a relatively small share of the reduction effort, if this means shifting the burden onto subsequent generations and thus exposing their lives to serious loss of freedom. Against this backdrop, it should be recalled that some scholars have criticised the Italian reform for its failure to include the principle of sustainable development in the Constitution.43 However, these views are unconvincing. Indeed, as Brown Weiss authoritatively clarified, the principle of sustainable development is entirely based on the principle of intergenerational equity.44 Hence, the two principles can hardly be understood separately.45 This conclusion unequivocally stems from the simultaneous amendment of Article 41 of the Constitution, which now specifies that the protection of the environment constitutes a limit to freedom of economic enterprise. A last point concerns the protection of animals. It is worth noting that the second sentence of the new third paragraph of Article 9 reserved exclusively to the central pp. 19�22, paras. 5.3 and 6, p. 32 ff., para. 11. As for the second case, in upholding the first instance decision – which had recognised that the environmental organsation Urgenda, by acting to protect the present generation, was implicitly also protecting the interest of future generations, and not only the Dutch generations (paras. 34�37) – the Dutch Supreme Court ruled that under Arts. 2 and 8 of the European Convention on Human Rights (ECHR), a positive obligation rested on the national authorities to take measures to prevent climate change. Cf. Supreme Court of the Netherlands (Civil Division), The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v. Stichting Urgenda, Case No. 19/00135, Judgment of 20 December 2019, pp. 27�28, para. 5.7.3. 43 Montaldo, “La tutela costituzionale dell’ambiente nella modifica degli artt. 9 e 41 Cost.: una riforma opportuna e necessaria?”, Federalismi, 4 May 2022, p. 187 ff., p. 209. For the opposite view, see Bifulco, cit. supra note 1, p. 7. Some authors also complained about the fact that by amending Art. 9 of the Constitution, the legislature did not codify the principle of environmental integration as provided in Art. 11 of the Treaty on the Functioning of the European Union (TFEU): see Cecchetti, cit. supra note 1, pp. 312�313. This view is not entirely convincing. While the codification of the principle of integration could perhaps have ensured greater legal certainty, the Italian legislature is required to integrate environmental considerations into public policies in order to pursue the objectives set out in Art. 9 of the Constitution. On the principle of environmental integration under EU law, see Rolando, L’integrazione delle esigenze ambientali nelle altre politiche dell’Unione europea, Napoli, 2020. 44 See Brown Weiss, “Intergenerational Equity”, Max Planck Encyclopedia of Public International Law, April 2021, where the author notes that “[t]he principle of intergenerational equity is a foundation for the concept of sustainable development”. 45 See Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), 16 June 1972, in Report of the United Nations Conference on the Human Environment, UN Doc. A/CONF.48/14/Rev.1, Principle 1; Report of the World Commission on Environment and Development: Our Common Future, UN Doc. A/42/427, Annex, 4 August 1987, para. 1. As for schol� scholarship see Dupuy and Viñuales, International Environmental Law, 2nd ed., Cambridge, 2018, p. 88; Boyle and Redgwell, Birnie, Boyle & Redgwell’s International Law and the Environment, 4th ed., Oxford, 2021, p. 121; Bifulco, cit. supra note 1, p. 8. “ENVIRONMENTAL REFORM” OF THE ITALIAN CONSTITUTION 273 State the task of defining appropriate means and forms of animal protection.46 Three critical remarks can be made in this respect.47 First, ensuring the protection of animals without characterising them as sentient beings, on the model of Article 13 of the TFEU, risks overlapping with the protection of biodiversity, unless the interpreter overcomes this shortcoming on the basis of the principle of effective interpretation (ut res magis valeat quam pereat). Second, the attribution of legislative power to the State does not seem to equate with a guarantee of protection. Rather, it appears to be a matter of attribution of law�making competences between State and Regions, which, as such, should have better featured in Article 117 of the Constitution. Third, this provision is inconsistent with the idea that it should be the State as a whole to ensure the protection of the environment because it prevents Regions from taking action in a field where they have traditionally shown political sensitivity and capacity to intervene. 5. A General Assessment: Between Codification and Innovation The significance of the constitutional revision can be assessed in light of the distinction, familiar to Italian constitutional law scholars, between the so�called “codification reforms” (riforme bilancio) and “programmatic reforms” (riforme programma). In the first case, the legislature amends the Constitution in order to crystallise, on a formal level, the transformations of constitutional law that have already emerged in the jurisprudence or as a result of uncontested practices. In the second case, revision aims to introduce new values and programmatic objectives into the Constitution. The two models are not necessarily mutually exclusive and can be combined in practice. An example is the principle of intergenerational equity, which is often relied on in the case law of the Constitutional Court. Yet its codification by means of Constitutional Law No. 1/2022 no doubt represents a major innovation. The amendment to Article 9 of the Constitution can be regarded as a “codification reform”, insofar as it crystallised programmatic objectives and values that had already been elaborated by the Constitutional Court in its case law.48 This consideration in no way intends to deny that the reform contains intrinsically innovative elements. Traditionally, in the Italian legal system environmental protection does not take on the characterisation of a human right, but that of a value whose protection is entrusted to legislative and administrative public policies. In the absence of specific parameters defined at the constitutional level, the constitutional review of public policies by the Constitutional Court is confined to cases of manifest unreasonableness and arbitrariness. The Court clarified this approach in its Judgment No. 85/2013 (“ILVA case”). On For a critique, see Pelagatti, “La costituzionalizzazione simbolica degli animali nella revisione dell’art. 9”, Amministrazione in cammino, 8 July 2022. 47 Cecchetti, cit. supra note 1, pp. 303-305. 48 See Palombino, cit. supra note 1, p. 113. On the other hand, see Cecchetti, cit. supra note 1, pp. 297-298 and de Leonardis, “La riforma ‘bilancio’ dell’art. 9 Cost. e la riforma ‘programma’ dell’art. 41 Cost. nella legge costituzionale n. 1/2022: suggestioni a prima lettura”, ApertaContrada, 28 February 2022, passim, where the authors include both dimensions. 46 274 NOTES AND COMMENTS that occasion, it was called upon to assess the reasonableness of the Government’s decision to allow the continuation of steel production at the ILVA plant in Taranto, despite serious health and environmental concerns. This situation led to an institutional clash between the executive and the judiciary. The Court noted that it cannot be accepted that a judge (including this Court) could consider new legislation to be unlawful based on a substantive assessment of its inadequacy, irrespective of the infringement of precise regulatory, constitutional or State law parameters, by imposing its own discretionary assessments on those of the legislature and the competent public administrations. Such a review would be possible only in the presence of manifest unreasonableness of the new discipline dictated by the legislature.49 The reform fits this general conception by framing the protection of the environment as a constitutional value entrusted to public policies and as a fundamental principle that must guide the decisions of the legislature and public administration. This approach is convincing for two main reasons. First, environmental protection represents a multidimensional and holistic concept that requires the balancing of multiple factors in the specific circumstances of each case and thus entails the exercise of discretionary powers by public authorities.50 This explains why, in the alternative between a rights�based approach and a public policies�based one, environmental protection fits better into the latter. Despite the fact that environmental protection may constitute a requirement for the enjoyment of specific fundamental rights, such as the right to a healthy environment under Articles 9 and 32 of the Constitution, in the Italian legal system it is more properly framed as a constitutional value, whose realisation is to be pursued through public policies, rather than as an individual right of the person. Second, the characterisation of environmental protection as a constitutional value is also consistent with international law. There, environmental protection does not normally follow a “rights�based approach” but is usually entrusted to general principles and rules that must guide States in adopting environmentally sound national public policies. The human right to a healthy environment constitutes a tiny fragment of the overall architecture of environmental law, being enshrined solely by international human rights law.51 Remarkably, the EU shares the same approach Constitutional Court, Judgment No. 85 of 2013, para. 12.6 of the conclusions on points of law (author’s translation). Interestingly enough, when the ILVA case was brought before the European Court of Human Rights, Italy was found to have violated, inter alia, Art. 8 of the ECHR (Cordella and others v. Italy, Applications Nos. 54414/13 and 54264/15, Judgment of 24 January 2019). Such different outcome may be explained with the shift from the “public policies�based” perspective to environmental protection, adopted by the Italian Constitutional Court, to a narrower approach grounded in the human right to a healthy environment, which was followed by the European Court. 50 On the multidimensional character of the value of the environment, see Constitutional Court, Judgments Nos. 302 and 356 of 1994. 51 Scholarship cholarship has long questioned that the right to a healthy environment had been con� consolidated at the level of general international law: see Castellaneta, “L’individuo e la protezione 49 “ENVIRONMENTAL REFORM” OF THE ITALIAN CONSTITUTION 275 based on principles and public policies. This is evident if one looks at the wording of Article 37 of the Charter of Fundamental Rights (“Environmental protection”), which was drafted as a principle by carefully refraining from using the term “right”: “[a] high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”.52 Nonetheless, the reform contains important innovations. It extends the scope of constitutional review for public policies on environmental matters. In so doing, the amendment modifies the balance of power between the legislature and the public administration, on the one hand, and the judiciary, on the other. It is true that some of these innovations had already emerged in the case law of the Constitutional Court. However, that form of constitutional protection of the environment entailed the intrinsic shortcomings of judicial law�making, namely fragmentation, incompleteness, lack of systematicity, risk of conflicting judgments and legal uncertainty. These limitations increased the risk of institutional clashes between the Constitutional Court and other national authorities. The reform is thus innovative because it codifies the major acquisitions achieved in the case law, thus bringing legal certainty and strengthening environmental protection. This development, in turn, enhances the gatekeeper role of the Constitutional Court in environmental matters, granting it full authority to review the environmental legitimacy of public policies. Finally, the constitutionalisation of environmental protection has a further twofold consequence. On the one hand, it prevents the risk of legislative regression in environmental protection and, on the other, it promotes progressive developments, offering courts a solid basis for developing their case law with a view to intercepting new claims of environmental justice.53 dell’ambiente nel diritto internazionale”, RDI, 2000, p. 913 ff., p. 958. In the last two decades, howevhowev� er, significant developments occurred such as, for example, the 2017 Advisory Opinion of the Inter� American Court of Human Rights, which recognised this right under the American Convention on Human Rights (The Environment and Human Rights, Advisory Opinion OC�23/17 of 15 November 2017), and the adoption by the United Nations General Assembly of Resolution No. 76/300 of 28 July 2022 on the human right to a clean, healthy and sustainable environment. Still, it is worth noting that even the position of the States that voted in favour of the resolution is not entirely straightforward. For example, the United States has made it clear that the vote in favour of the resolution “does not [imply that the United States] recognize[s] any change in the current state of conventional or customary international law”: see Katz Cogan, “The United States Recognizes the Human Right to a Clean, Healthy, and Sustainable Environment”, AJIL, 2023, p. 128 ff., pp. 132�133. 52 Charter of Fundamental Rights of the European Union, 7 December 2000, OJ, 18 December 2000, C 364, p. 1 ff.; adapted in Strasbourg on 12 December 2007, entered into force 1 December 2009 [by virtue of Art. 6(1) of the Lisbon Treaty] (OJ, 26 October 2012, C 326, p. 391 ff.). In the sense suggested above in the text, see Morgera and Marín Durán, “Article 37”, in Peers et al. (eds.), The EU Charter of Fundamental Rights: A Commentary, 2nd ed., Oxford, 2021, p. 1041 ff.; Lombardo, “The Charter of Fundamental Rights and the Environmental Policy Integration Principle”, in Di Federico (ed.), The EU Charter of Fundamental Rights. From Declaration to Binding Instrument, Dordrecht, 2011, p. 217 ff. On the environmental principles of EU law, see Ferraro, “I grandi principi del diritto dell’Unione europea in materia ambientale”, DPCE Online, Vol. 58, No. SP2, 2023, p. 46 ff. 53 Bifulco, cit. supra note 1, p. 3. 276 NOTES AND COMMENTS 6. The Interplay between International Environmental Law and the Italian Legal Order in Light of the Constitutional Reform Based on the analysis carried out above, it is possible to make a few conclusive considerations on the significance of the reform for the relationship between domestic law and international law. Although some authors have questioned its efficacy,54 the reform seems to have been mostly welcomed for the following reasons. First, it could no longer be postponed and has definitively filled a serious gap at the domestic level. Second, from the point of view of international law, it constitutes a great achievement the international legal system has successfully gained after a long� standing process began in the mid�1970s. It is indeed possible to regard the reform as evidence of the influence that international law exercises on domestic legal systems. In the case at hand, the principles of international environmental law played a decisive role, in the two ways typical of such sources. The latter are able to affect the interpretation of other norms and promote normative production on specific matters. This is exactly what happened in the Italian legal system, where those principles have first influenced the case law of the Constitutional Court and later led the legislature to reform the fundamental Charter. Following this line of reasoning, the amendment to Article 9 of the Italian Constitution may be seen as an example of (domestic) constitutionalisation of international law, in the sense of incorporation of international law norms in the domestic constitutional order.55 Arguably, the provision codifies into the Constitution international norms such as the principles of prevention, precaution, intergenerational equity, sustainable development, information and “polluter pays”,56 in the same way as Article 11 does with the customary norm prohibiting the threat or use of armed force. In this sense, the amendment to Article 9 appears to represent an ordinary procedure of incorporation of international law, meaning that the legislature introduced a domestic provision which codifies international norms, in order to secure compliance by all national authorities. By means of both the comprehensive clause of environmental protection and the reference to the interest of future generations, the legisSee Frosini, cit. supra note 3, p. 3, where the author speaks of an “incomprehensible formula”. Rescigno, cit. supra note 41, p. 5, where the author refers to the reform as a “muddled downward compromise”. Cecchetti, cit. supra note 1, p. 312 regrets about a “missed opportunity”. See also Fracchia, “L’ambiente nell’art. 9 della Costituzione: un approccio in ‘negativo’”, Il diritto dell’economia, No. 1, 2022, p. 15 ff., pp. 22�23, where the author highlights the expectations betrayed by the reform. 55 In this sense, see Bifulco, cit. supra note 1, pp. 3�4. See also Ligustro, “Il nuovo diritto dell’ambiente tra fonti internazionali, sovranazionali e interne”, DPCE Online, Vol. 58, No. SP2, 2023, p. 15 ff., p. 16; Viola, “From the Principles of International Environmental Law to Environmental Constitutionalism: Competitive or Cooperative Influences?”, in Amirante and Bagni (eds.), Environmental Constitutionalism in the Anthropocene. Values, Principles and Actions, London/New York, 2022, p. 127 ff. 56 While scholarly debate on the legal status of some of these principles is ongoing, most of them are widely accepted to be part of general international law. In the sense that compliance with these principles constitutes a fundamental requirement of the right to a healthy environment, see the comment of resolution No. 76/300 by Pauciulo, “Il diritto umano a un ambiente salubre nella risoluzione 76/300 dell’Assemblea generale delle Nazioni Unite”, RDI, 2022, p. 1118 ff. 54 “ENVIRONMENTAL REFORM” OF THE ITALIAN CONSTITUTION 277 lature at once incorporated at the constitutional level the principles of international environmental law just mentioned. While before the reform some of these principles entered the Italian legal system by virtue of Article 10 of the Constitution and its incorporation of generally recognised norms of international law,57 they are now at the core of a fundamental constitutional value. In other words, following their domestic constitutionalisation, the fundamental principles of environmental protection promote normative action so that the legislature takes appropriate measures to guarantee their effectiveness.58 On the other hand, they offer a parameter against which the constitutional legitimacy of those public policies and resulting legislation may be scrutinised.59 As a consequence, the Italian Constitutional Court, if it will ever address such a legal question, will not need to rely upon Article 10 of the Constitution, going through the complex operation of identifying unwritten norms of general international law. It can now ground its review directly on Article 9 of the Constitution and the general principles of international environmental law that this provision incorporates. Obviously, this does not preclude international norms from continuing to play a useful role in the process of interpretation. The general clause on “environmental protection” has a very broad scope and it is therefore necessary to flesh out its contents. Since Article 9 may be seen as containing an implicit reference to the general principles of international environmental law, the latter can contribute to determining its normative scope. This scenario does not come as a surprise. In the past, when confronted with gaps or uncertainties in the Italian Constitution, the Constitutional Court resorted to international law norms, to develop a case law capable of ensuring adequate environmental protection.60 This process of borrowing from international law to progressively shape constitutional norms constitutes a form of internationalisation of constitutional law.61 Looking at a different context, a similar interaction has occurred in the past when the Constitutional Court filled the generic reference to the “inviolable rights of the person” under Article 2 of the Constitution, by recalling the fundamental rights solemnly affirmed in international law instruments, even of a non�legally binding character, such as the 1948 Universal Declaration of Human 57 The first paragraph of Art. 10 reads: “[t]he Italian legal system conforms to the generally recognised norms of international law”. 58 Cecchetti, Principi costituzionali per la tutela dell’ambiente, Milano, 2000, p. 49 ff.; Grassi, “Introduzione”, in Grassi, Cecchetti and Andronio (eds.), Ambiente e diritto, Vol. I, Firenze, 1999, p. 23 ff. 59 Grassi and Cecchetti, “Profili costituzionali della regolazione ambientale nel diritto comunitario e nazionale”, in Rapisarda Sassoon (ed.), Manuale delle leggi ambientali, Milano, 2002, p. 7 ff., p. 24 ff. 60 Some authors referred to this possible interplay between international law and domestic law as “compensatory constitutionalism”, i.e. the possible use of international law norms as a means to tackle de�territorialised problems and global concerns which can hardly be governed at the domestic level. In this respect, see Peters, “Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures”, Leiden JIL, 2006, p. 579 ff., p. 580. 61 Bifulco, cit. supra note 22, p. 88. For a general discussion of the internationalisation of con� constitutional law, see De Búrca and Gerstenberg, “The Denationalization of Constitutional Law”, Harvard ILJ, 2006, p. 243 ff. 278 NOTES AND COMMENTS Rights.62 In light of the amended Article 9, the same dynamic may indeed occur with regard to the relationship between the general reference to environmental protection and, for example, the principles listed in the 1992 Rio Declaration on Environment and Development.63 At the same time, extending the list of fundamental values enshrined in the Italian Constitution cannot but have an impact on the relationship between domestic law and international law. In this respect, it is possible to draw a distinction between conflictual and cooperative interferences. As for the former, the 2022 Italian reform implies an expansion of the so�called constitutional “counter�limits”, i.e. the domestic fundamental principles that may justify, at least as a matter of constitutional law, an act of disobedience to international law:64 should a norm of the latter conflict with the Italian constitutional principle of environmental protection, the Constitutional Court could invoke Article 9 as a counter�limit to the application of that norm since the Court had already framed environmental protection as a primary and absolute constitutional value in its previous case law.65 In this respect, one may wonder, for instance, what treatment should be granted by the Italian legal system, following the present reform, to international investment agreements which protect foreign investments while disregarding environmental concerns. The interplay between constitutional and international law can also be of a cooperative nature. First, the constitutionalisation of both environmental protection and intergenerational equity can influence or determine a practice accepted as law and, in so doing, it can contribute to the crystallisation, clarification or progressive development of general international law norms.66 Furthermore, it may end up affecting the way the Italian legal system understands and interprets different notions of international law when it comes to environmental concerns. As some authors claimed when commenting on the amended Article 9,67 one may think of the role that envi62 Universal Declaration of Human Rights, UN Doc. A/RES/217(III) (1948). See Constitutional Court, Judgments No. 278 of 17 June 1992, para. 2 of points in law; No. 404 of 7 April 1988, para. 3 of points in law; No. 559 of 20 December 1989, para. 3 of points in law; No. 445 of 12 November 2002, para. 3 of points in law; No. 245 of 25 July 2011, para. 3.1 of points in law. On this matter, see Monego, “La Dichiarazione universale dei diritti umani nella giurisprudenza della Corte costituzionale italiana”, in Tonolo and Pascale (eds.), La Dichiarazione universale dei diritti umani nel diritto internazionale contemporaneo, Torino, 2020, p. 127 ff., pp. 139�144; Lamarque, “Le relazioni tra l’ordinamento nazionale, sovranazionale e internazionale nella tutela dei diritti”, Diritto pubblico, 2013, p. 727 ff. 63 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (1992), Vol. I. 64 Under the so�called “counter�limits” doctrine (dottrina dei controlimiti), when an international law norm is inconsistent with the fundamental principles of the Italian constitutional order, such principles operate as “counter�limits” and, as a consequence, the international law norm is not incorporated in the Italian legal system. See Amoroso, “Italy”, in Palombino (F.M.) (ed.), Duelling for Supremacy: International Law vs. National Fundamental Principles, Cambridge, 2019, p. 184 ff. 65 See supra note 31. 66 In this sense, a recent study pointed out that nowadays, 156 of 193 Member States of the United Nations protect the environment in their constitutions: Amirante, Costituzionalismo ambientale. Atlante giuridico per l’Antropocene, Bologna, 2022, Chap. 4. 67 In this sense see Iaria, “Le modifiche all’art. 9 della Costituzione e la tutela dell’ambiente nel diritto internazionale umanitario: primi spunti di riflessione”, SIDIBlog, 23 February 2022. See also Iovane and Greco, “L’interesse delle future generazioni al mantenimento della pace”, in Frulli “ENVIRONMENTAL REFORM” OF THE ITALIAN CONSTITUTION 279 ronmental concerns are bound to play in the context of the law of armed conflict as regards the balancing of military necessity, proportionality, precaution and humanity in the choice of legitimate military objectives, methods and means of warfare.68 For example, precaution constitutes a basic norm of international humanitarian law, imposing to adopt all feasible precautions in military operations. Its scope, however, is very broad and rather abstract, allowing much discretion to military decision�makers on how to comply with the duty when they are called to identify targets and strategies. In this context, the principles of environmental law and intergenerational equity, both as a matter of international law and domestic law, can limit that discretion to the extent they require to take into account and ensure environmental protection.69 In conclusion, the amendment of Article 9 of the Italian Constitution shows that domestic law and international law, although distinct, are strictly intertwined and that the circulation of normative values between the two legal systems may foster the protection of general interests such as environmental protection. (ed.), L’interesse delle future generazioni nel diritto internazionale e dell’Unione europea, Napoli, 2023, p. 49 ff. 68 Cf. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports, 1996, p. 226 ff., p. 242, paras. 30�31. See also Arts. 35(3) and 55 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, entered into force 7 December 1978. The protection of the environment is also enshrined in international criminal law. Art. 8(2)(b)(iv) of the Rome Statute punishes whoever intentionally launches “an attack in the knowledge that such attack will cause […] widespread, long�term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”, Statute of the International Criminal Court, 17 July 1998, entered into force 1 July 2002. 69 Stefanik, cit. supra note 40, p. 114.