The unpatriotism of the economic constitution? Rights to free movement and their impact on national and European identity

Abstract: Instead of the political reading of the EU Constitution adopted by advocates of constitutional patriotism, this article examines the European economic constitution. The four single market freedoms can be used by the Court of Justice to strike down Member State laws which represent deeply held aspects of national cultural identity. The article examines whether the court does in fact act in this way and proceeds to argue that the issue of identity protection does not stop with the court. In those policy areas where the court is more interventionist, and its case-law is perceived as an identity threat, one is likely to find binding Treaty-based derogations. Where, in contrast, the effect of the court's case-law poses less of a threat, one is more likely to see non-binding declarations. The article examines a number of policy areas in which specific cultural derogations and declarations are to be found, including abortion, property acquisition, football and alcohol control.

The transformation of earth-system observations into information of socio-economic value in GEOSS

The Group on Earth Observations System of Systems, GEOSS, is a co-ordinated initiative by many nations to address the needs for earth-system information expressed by the 2002 World Summit on Sustainable Development. We discuss the role of earth-system modelling and data assimilation in transforming earth-system observations into the predictive and status-assessment products required by GEOSS, across many areas of socio-economic interest. First we review recent gains in the predictive skill of operational global earth-system models, on time-scales of days to several seasons. We then discuss recent work to develop from the global predictions a diverse set of end-user applications which can meet GEOSS requirements for information of socio-economic benefit; examples include forecasts of coastal storm surges, floods in large river basins, seasonal crop yield forecasts and seasonal lead-time alerts for malaria epidemics. We note ongoing efforts to extend operational earth-system modelling and assimilation capabilities to atmospheric composition, in support of improved services for air-quality forecasts and for treaty assessment. We next sketch likely GEOSS observational requirements in the coming decades. In concluding, we reflect on the cost of earth observations relative to the modest cost of transforming the observations into information of socio-economic value.

Redefining the outer boundaries of EU Law: the Zambrano, McCarthy and Dereci trilogy

In its three recent rulings in the cases of Zambrano, McCarthy, and Dereci, the Court appears to have been determined to redefine the external boundaries of EU law, in cases involving the family reunification rights of Union citizens.These three judgments can be read as an indication that for Article 20 TFEU to apply, there is no longer a requirement of a cross-border element on the facts of the case, and that it is sufficient if the contested national measure has the effect of ‘depriving citizens of the Union of the genuine enjoyment of the substance’ of their rights (the ‘Zambrano principle’).The cases can, at the same time, also be read as a confirmation that the free movement provisions do – still – require a cross-border element and, in particular, the exercise of inter-State movement, in order to apply. Though the result in these cases has not been entirely unexpected, especially in the aftermath of the Rottmann ruling, it is rather problematic in that, although it is obvious that the Court wishes to redraw the line dividing the national and EU spheres of competence, it does not make it entirely clear where this line now lies and leaves many essential questions unanswered, which will obviously require some time to be resolved. EU lawyers are consequently, once more, left with having to decipher as best as they can the real intentions of the Court in this new line of case-law, which has been further complicated by the fact that what the Court seems to have given with one hand in Zambrano (and before that in Rottmann), has taken it back to a large extent through its rulings in McCarthy and Dereci, which appear to confine the former two cases to their own exceptional facts.6 Moreover, the ‘reverse discrimination Pandora’s box’, the opening of which appears to have been the real target of these references, remains untouched: instead of providing a direct solution to this problem, the Court has chosen to – once again – broaden the scope of the Treaty provisions in order to include within it as many situations as possible and, thus, prevent the emergence of this type of differential treatment on a case-by-case basis.As will be explained, nonetheless, this is by no means an appropriate solution to the reverse discrimination conundrum.

Protecting recognized Geneva Convention refugees outside their states of asylum

This article highlights the predicament of persons recognized as refugees according to the Convention Relating to the Status of Refugees (CSR1951 refugees) when they travel outside their state of asylum. Their status entails ipso facto that, if they are ill-treated abroad, they cannot turn to representatives of their state of nationality and request its diplomatic protection, nor can they expect to receive its consular assistance. It is submitted that a state of asylum ought to extend the scope of protection that it offers CSR1951 refugees residing in its territory, and provide them diplomatic protection and consular assistance when they travel abroad as if they were its nationals. Four claims are advanced in support of this contention: First: the advent of human rights treaties has not rendered obsolete the protection of nationals abroad nor has the practice fallen into disuse. On the contrary, protection abroad retains its pedigree and significance, as is illustrated by the recently adopted International Law Commission's Draft Articles on Diplomatic Protection and by frequent resort to consular assistance. Second: while states previously enjoyed unfettered discretion concerning whether and when to protect their nationals abroad, recent developments in domestic jurisdictions as well as in European Union (EU) treaties point to the potential emergence of a qualified duty to exercise state protection or to be willing to provide justifications for its refusal. These developments call particular attention to the vulnerability of CSR1951 refugees: the professed aim of the EU treaty regime is that EU citizens should enjoy effective state protection wherever they travel; by contrast, CSR1951 refugees are in need of state protection wherever they travel. Third: according to CSR1951, states of asylum are required to issue Convention Travel Documents (CTDs) to recognized refugees lawfully staying in their territory. While CTDs do not in of themselves authorize states of asylum to provide protection abroad to their CSR1951 refugees, they reflect partial recognition of the instrumental role of these states in facilitating safe refugee travel. Fourth: while the 'nationality of claims' requirement remains pivotal to the institution of diplomatic protection, and efforts to effectuate its general relaxation have thus far failed, the International Law Commission (ILC) has 'carved out' an exception authorizing states of asylum to provide protection abroad to their recognized refugees. The ILC's protection-enhancing agenda, reflecting progressive development of the law, is laudable, even though it has opted for a rather cautious approach.

‘Victory in a Nuclear War? A Comparison of NATO and WTO War Aims and Strategies’

Given the danger of the unbearable catastrophe of nuclear war, NATO in the mid-1950s abandoned any war aim of achieving victory in an all-out war with the Soviet Union or the Warsaw Treaty Organisation. Instead, it adopted the war aim of a cease-fire or war termination. By contrast, the WTO clung on to the war aim of victory - expressed even in terms of the survival of slightly more Soviet citizens than NATO citizens, after unprecedented losses of life in nuclear exchanges - until the mid-1980s when under Gorbachev the concept of victory in nuclear war was abandoned.

EU membership of the WTO: international trade disputes and judicial protection of individuals by EU Courts

The European Union (EU) is embedded in a pluralistic legal context because of the EU and its Member States’ treaty memberships and domestic laws. Where EU conduct has implications for both the EU’s international trade relations and the legal position of individual traders, it possibly affects EU and its Member States’ obligations under the law of the World Trade Organization (WTO law) as well as the Union’s own multi-layered constitutional legal order. The present paper analyses the way in which the European Court of Justice (ECJ) accommodates WTO and EU law in the context of international trade disputes triggered by the EU. Given the ECJ’s denial of direct effect of WTO law in principle, the paper focuses on the protection of rights and remedies conferred by EU law. It assesses the implications of the WTO Dispute Settlement Understanding (DSU) – which tolerates the acceptance of retaliatory measures constraining traders’ activities in sectors different from those subject to the original trade dispute (Bananas and Hormones cases) – for the protection of ‘retaliation victims’. The paper concludes that governmental discretion conferred by WTO law has not affected the applicability of EU constitutional law but possibly shapes the actual scope of EU rights and remedies where such discretion is exercised in the EU’s general interest.

The international law implications of the Turkish/Kurdish conflict

This article considers the threaties and customs governing armed conflict in the context of the long standing insurgency in southeast Turkey. The first part of the article analyzes the existing treaty and customary law concerning the threshold of an armed conflict and concludes that the insurgency in Southeast Turkey existing since 1984 rises to the level of an armed conflict based on criteria identified both in treaty and customary international law. The next consideration is the classification of this conflict and this part concludes that this situation is a non-international armed conflict due to lack of involvement of forces of another country. Finally, this article considers international humanitarian law applicable to this non-international armed conflict and reveals that as a result of the monumental International Committee of the Red Cross customary humanitarian law study, particularly with respect to the law of targeting, that the rules applicable to international and non-international armed conflict have never been closer.

The Copenhagen principles on the handling of detainees: implications for the procedural regulation of internment

The Copenhagen Principles on the Handling of Detainees in International Military Operations were released in October 2012 after a five-year long process involving states and certain organizations. The Principles address a number of issues concerning the handling and transfer of detainees. They apply in military operations conducted by states abroad in the context of non-international armed conflicts and peace operations. This article focuses on those principles that address the procedural regulation of internment (ie preventive, security detention), as it is here that the current law is particularly unclear. On the one hand, the treaty provisions applicable in non-international armed conflicts contain no rules on the procedural regulation of internment, in comparison with the law of international armed conflict. On the other hand, the relevant rules under international human rights law (IHRL) appear derogable in such situations. This article demonstrates that the approach taken to this issue in the Copenhagen Principles is one which essentially draws on the procedural rules applicable to civilian internment in the international armed conflicts. These rules adopt standards that are lower than those under IHRL. Reference is then made to other recent practice, which illustrates that the Copenhagen Principles do not apply in a legal vacuum. In particular, two recent judicial developments highlight the continued relevance of human rights law and domestic law, respectively, in regulating detention operations in the context of international military operations. Compliance with the Copenhagen Principles may not, therefore, be sufficient for detention to be lawful.

Conflicts of law and the mutual recognition of same-sex unions in the EU

My thesis uses legal arguments to demonstrate a requirement for recognition of same-sex marriages and registered partnerships between EU Member States. I draw on the US experience, where arguments for recognition of marriages void in some states previously arose in relation to interracial marriages. I show how there the issue of recognition today depends on conflicts of law and its interface with US constitutional freedoms against discrimination. I introduce the themes of the importance of domicile, the role of the public policy exception, vested rights, and relevant US constitutional freedoms. Recognition in the EU also depends on managing the tension between private international law and freedoms guaranteed by higher norms, in this case the EU Treaties and the European Convention on Human Rights. I set out the inconsistencies between various private international law systems and the problems this creates. Other difficulties are caused by the use of nationality as a connecting factor to determine personal capacity, and the overuse of the public policy exception. I argue that EU Law can constrain the use of conflicts law or public policy by any Member State where these are used to deny effect to same-sex unions validly formed elsewhere. I address the fact that family law falls only partly within Union competence, that existing EU Directives have had limited success at achieving full equality and that powers to implement new measures have not been used to their full potential. However, Treaty provisions outlawing discrimination on grounds of nationality can be interpreted so as to require recognition in many cases. Treaty citizenship rights can also be interpreted favourably to mandate recognition, once private international law is itself recognised as an obstacle to free movement. Finally, evolving interpretations of the European Convention on Human Rights may also support claims for cross-border recognition of existing relationships.

Analysis of trade flows between Puerto Rico and CARICOM and prospects for integration

Includes bibliography

Sviluppo di metodologie di localizzazione nel contesto del Comprehensive Nuclear Test-Ban Treaty

Since the first underground nuclear explosion, carried out in 1958, the analysis of seismic signals generated by these sources has allowed seismologists to refine the travel times of seismic waves through the Earth and to verify the accuracy of the location algorithms (the ground truth for these sources was often known). Long international negotiates have been devoted to limit the proliferation and testing of nuclear weapons. In particular the Treaty for the comprehensive nuclear test ban (CTBT), was opened to signatures in 1996, though, even if it has been signed by 178 States, has not yet entered into force, The Treaty underlines the fundamental role of the seismological observations to verify its compliance, by detecting and locating seismic events, and identifying the nature of their sources. A precise definition of the hypocentral parameters represents the first step to discriminate whether a given seismic event is natural or not. In case that a specific event is retained suspicious by the majority of the State Parties, the Treaty contains provisions for conducting an on-site inspection (OSI) in the area surrounding the epicenter of the event, located through the International Monitoring System (IMS) of the CTBT Organization. An OSI is supposed to include the use of passive seismic techniques in the area of the suspected clandestine underground nuclear test. In fact, high quality seismological systems are thought to be capable to detect and locate very weak aftershocks triggered by underground nuclear explosions in the first days or weeks following the test. This PhD thesis deals with the development of two different seismic location techniques: the first one, known as the double difference joint hypocenter determination (DDJHD) technique, is aimed at locating closely spaced events at a global scale. The locations obtained by this method are characterized by a high relative accuracy, although the absolute location of the whole cluster remains uncertain. We eliminate this problem introducing a priori information: the known location of a selected event. The second technique concerns the reliable estimates of back azimuth and apparent velocity of seismic waves from local events of very low magnitude recorded by a trypartite array at a very local scale. For the two above-mentioned techniques, we have used the crosscorrelation technique among digital waveforms in order to minimize the errors linked with incorrect phase picking. The cross-correlation method relies on the similarity between waveforms of a pair of events at the same station, at the global scale, and on the similarity between waveforms of the same event at two different sensors of the try-partite array, at the local scale. After preliminary tests on the reliability of our location techniques based on simulations, we have applied both methodologies to real seismic events. The DDJHD technique has been applied to a seismic sequence occurred in the Turkey-Iran border region, using the data recorded by the IMS. At the beginning, the algorithm was applied to the differences among the original arrival times of the P phases, so the cross-correlation was not used. We have obtained that the relevant geometrical spreading, noticeable in the standard locations (namely the locations produced by the analysts of the International Data Center (IDC) of the CTBT Organization, assumed as our reference), has been considerably reduced by the application of our technique. This is what we expected, since the methodology has been applied to a sequence of events for which we can suppose a real closeness among the hypocenters, belonging to the same seismic structure. Our results point out the main advantage of this methodology: the systematic errors affecting the arrival times have been removed or at least reduced. The introduction of the cross-correlation has not brought evident improvements to our results: the two sets of locations (without and with the application of the cross-correlation technique) are very similar to each other. This can be commented saying that the use of the crosscorrelation has not substantially improved the precision of the manual pickings. Probably the pickings reported by the IDC are good enough to make the random picking error less important than the systematic error on travel times. As a further justification for the scarce quality of the results given by the cross-correlation, it should be remarked that the events included in our data set don’t have generally a good signal to noise ratio (SNR): the selected sequence is composed of weak events ( magnitude 4 or smaller) and the signals are strongly attenuated because of the large distance between the stations and the hypocentral area. In the local scale, in addition to the cross-correlation, we have performed a signal interpolation in order to improve the time resolution. The algorithm so developed has been applied to the data collected during an experiment carried out in Israel between 1998 and 1999. The results pointed out the following relevant conclusions: a) it is necessary to correlate waveform segments corresponding to the same seismic phases; b) it is not essential to select the exact first arrivals; and c) relevant information can be also obtained from the maximum amplitude wavelet of the waveforms (particularly in bad SNR conditions). Another remarkable point of our procedure is that its application doesn’t demand a long time to process the data, and therefore the user can immediately check the results. During a field survey, such feature will make possible a quasi real-time check allowing the immediate optimization of the array geometry, if so suggested by the results at an early stage.

Tax Treaty Override

What exactly is tax treaty override ? When is it realized ? This thesis, which is the result of a co-directed PhD between the University of Bologna and Tilburg University, gives a deep insight into a topic that has not yet been analyzed in a systematic way. On the contrary, the analysis about tax treaty override is still at a preliminary stage. For this reason the origin and nature of tax treaty override are first of all analyzed in their ‘natural’ context, i.e. within general international law. In order to characterize tax treaty override and deeply understand its peculiarities the evaluation of the effects of general international law on tax treaties based on the OECD Model Convention is a necessary pre-condition. Therefore, the binding effects of an international agreement on state sovereignty are specifically investigated. Afterwards, the interpretation of the OECD Model Convention occupies the main part of the thesis in order to develop an ‘interpretative model’ which can be applied every time a case of tax treaty override needs to be detected. Fictitious income, exit taxes and CFC regimes are analyzed in order to verify their compliance with tax treaties based on the OECD Model Convention and establish when the relevant legislation realizes cases of tax treaty override.

The European External Action Service and the Implementation of the 'Union Method' in European Foreign Policy

The European External Action Service (EEAS or Service) is one of the most significant and most debated innovations introduced by the Lisbon Treaty. This analysis intends to explain the anomalous design of the EEAS in light of its function, which consists in the promotion of external action coherence. Coherence is a principle of the EU legal system, which requires synergy in the external actions of the Union and its Members. It can be enforced only through the coordination of European policy-makers' initiatives, by bridging the gap between the 'Communitarian' and intergovernmental approaches. This is the 'Union method' envisaged by A. Merkel: "coordinated action in a spirit of solidarity - each of us in the area for which we are responsible but all working towards the same goal". The EEAS embodies the 'Union method', since it is institutionally linked to both Union organs and Member States. It is also capable of enhancing synergy in policy management and promoting unity in international representation, since its field of action is delimited not by an abstract concern for institutional balance but by a pragmatic assessment of the need for coordination in each sector. The challenge is now to make sure that this pragmatic approach is applied with respect to all the activities of the Service, in order to reinforce its effectiveness. The coordination brought by the EEAS is in fact the only means through which a European foreign policy can come into being: the choice is not between the Community method and the intergovernmental method, but between a coordinated position and nothing at all.

Tempering the EU? NGO Advocacy in the Area of Freedom, Security, and Justice

The European Union’s (EU) area of Freedom, Security and Justice (AFSJ) portfolio comprises policy areas such as immigration and asylum, and police and judicial cooperation. Steps were taken to bring this field into the mandate of the EU first by the Maastricht Treaty, followed by changes implemented by the Amsterdam and Lisbon Treaties, the last one ‘normalizing’ the EU’s erstwhile Third Pillar. As the emergent EU regime continues to consolidate in this field, NGOs of various kinds continue to seek to influence policy-making and implementation, with varying success. This article seeks to establish the context in which NGOs carry out their work and argues that the EU-NGO interface is impacted both by the institutional realities of the European Union and the capacities of EU-oriented NGOs to seize and expand opportunities for access and input into the policy cycle. Using EU instruments representing three different policy bundles in AFSJ (immigration, asylum and judicial cooperation in criminal matters), the article seeks to map out NGO strategies in engaging and oftentimes resisting European Union policy instruments.