A proteção dos \"Refugiados Ambientais\" no Direito Internacional

Refugiados ambientais são refugiados não convencionais e são migrantes forçados, interna ou internacionalmente, temporária ou permanentemente, em situação de vulnerabilidade e que se veem obrigados a deixar sua morada habitual por motivos ambientais de início lento ou de início rápido, causados por motivos naturais, antropogênicos ou pela combinação de ambos. Embora não existam reconhecimento e proteção específica para esses migrantes no direito internacional em escala global, alguns instrumentos jurídicos regionais e leis nacionais assim o fazem. Argumenta-se, nesta tese de doutorado, que os refugiados ambientais possuem modos de proteção geral em certas áreas do direito internacional e que as possibilidades atuais e futuras de proteção específica podem ser encontradas nas fontes primárias do direito internacional, indicadas no artigo 38(1) do Estatuto da Corte Internacional de Justiça. Foram identificadas sete vias de proteção dos refugiados ambientais no direito internacional e no direito interno estatal: (i) a via da ação humanitária, (ii) a via da proteção complementar, (iii) a via da legislação nacional, (iv) a via da justiça climática, (v) a via da responsabilidade compartilhada, (vi) a via da judicialização do refúgio ambiental e (vii) a via do tratado internacional. Sugere-se, ainda, o estabelecimento de uma governança migratória-ambiental global baseada nos regimes internacionais e na ação dos atores nos níveis local, nacional, regional e internacional para a execução das formas de proteção e para o atendimento das necessidades dos refugiados ambientais no mundo.

Titularidade subjetiva no direito internacional: os sujeitos atípicos

O presente estudo pretende analisar, a partir da ideia de que determinados sujeitos do direito internacional veem-se investidos de uma titularidade subjetiva internacional atípica, os elementos que possibilitam a identificação dos sujeitos deste ordenamento jurídico. Para tanto, é feito um resgate sobre as principais doutrinas que buscaram, ao longo do tempo, elucidar as questões relativas à atribuição da personalidade jurídica. É realizada, desta forma, uma abordagem sobre as teorias que explicam a titularidade subjetiva tanto no direito quanto no direito internacional. Ademais, são estudadas, em suas mais variadas peculiaridades, as entidades tidas pela doutrina e pela prática como sujeito de direito internacional e o processo através do qual estas tiveram sua personalidade jurídica reconhecida pelo ordenamento jurídico internacional.

Hukuk-i umumiye-yi düvel

müellifleri Hānrī Būnfīs, Pūl Fūshīl ; mütercimi Ahmet Salahattin.

Die deutsche Europapolitik unter den Vorgaben des Bundesverfassungsgerichts = The German European policy under the provisions of the Federal Constitutional Court. ZEI Discussion Paper No. C 218, 2013

No abstract.

Il lavoro a termine nella giurisprudenza della Corte di giustizia [Jurisprudence in the Court of Justice]. WP C.S.D.L.E. "Massimo D'Antona" .INT - 93/2012

The paper analyzes the ECJ case law on fixed-term work, with specific regard to non-regression clause, measures to prevent abuses and the principle of non-discrimination. In particular, the Author points out that the principle of non-discrimination is to be regarded as being the core of the fixed-term work regulation; in this respect, especially in more recent judgments, the Court seems to maximize the scope of such principle.

Diritti sociali e crisi del costituzionalismo europeo [Social rights and the crisis of European constitutionalism]. WP C.S.D.L.E. “Massimo D’Antona”.INT – 95/2012

In the face of what looks like a real impasse of the the line of European constitutionalism, partly due to an orientation of the Court of Justice which tends to favor the protection of economic freedoms over the protection of social rights, two opposing trends occurr. The first amounts to a new "constitutional patriotism"; the second entrusts the protection of fundamental social rights no longer to a single Chart or to a single court but to a multi-level system of protection. A dialogue between the European courts that truly valorizes fundamental rights, however, might be hindered by what someone has seen as a resurgence of the dualist theories, evident in an ECJ’s decision as Kadi.

Flexicurity e valorizzazione delle capability: l'impulso alla ri-regolamentazione del lavoro a termine = Flexicurity and enhancement of work capability: the impulse to re-regulation of labor. WP C.S.D.L.E. “Massimo D’Antona”.INT – 97/2012

The paper analyzes the evolution of the concept of flexicurity in the european context. In this perspective, flexicurity is expressed through the language of the policies, showing an inherent weakness in influencing national reform processes. The essay compare also with the possibility of a re-reading of flexicurity policies, in the light of the theory of capabilities developed by Amartya Sen.

The Criminalisation of Migration in Europe: A State-of-the-Art of the Academic Literature and Research. CEPS Liberty and Security in Europe No. 61, October 2013

In the last 30 years, a clear trend has come to define modern immigration law and policy. A set of seemingly disparate developments concerning the constant reinforcement of border controls, tightening of conditions of entry, expanding capacities for detention and deportation and the proliferation of criminal sanctions for migration offences, accompanied by an anxiety on the part of the press, public and political establishment regarding migrant criminality can now be seen to form a definitive shift in the European Union towards the so-called ‘criminalisation of migration’. This paper aims to provide an overview of the ‘state-of-the-art’ in the academic literature and EU research on criminalisation of migration in Europe. It analyses three key manifestations of the so-called ‘crimmigration’ trend: discursive criminalisation; the use of criminal law for migration management; and immigrant detention, focusing both on developments in domestic legislation of EU member states but also the increasing conflation of mobility, crime and security which has accompanied EU integration. By identifying the trends, synergies and gaps in the scholarly approaches dealing with the criminalisation of migration, the paper seeks to provide a framework for on-going research under Work Package 8 of the FIDUCIA project.

A Critique of Kosovo’s Internationalized Constitutional Court. EDAP 2014/02

The quality and the sustainability of the democratic institutions established in post-independence Kosovo under the guidance of the international community depend to a large extent on the performance of its constitutional court. The considerable international investment in that court reflects this assessment. One of the reasons why Kosovo’s international supervision has recently been terminated is that such court has been deemed to be functioning well. But its performance has not yet adequately been scrutinized. This essay reviews its most significant judgments, including decisions that deposed a president, annulled a presidential election, prevented a general election, and abolished the inviolability of parliament. The analysis of the reasons and effects of such rulings leads to the conclusion that the court gravely lacks independence and is subject to heavy political interference, which also the international judges do not seem immune from. The performance of the court is both a manifestation and a cause of Kosovo’s acute governance problems, which its international supervision has failed to remedy. The international community’s approach towards the court is also an illustration of the reasons why statebuilding in Kosovo led to unsatisfactory results, despite unprecedented investment.

"Viewers should not try this at home". Die Verfassungsgerichte Bosnien-Herzegowinas und Kosovos in deren Rolle als Schlichtungsinstanzen in ethnopolitischen Konflikten = The constitutional courts of Bosnia-Herzegovina and Kosovo in their role as arbitration bodies in ethno-political conflicts. EDAP 01/2014

The article analyzes the role of constitutional courts in Bosnia and Kosovo, both characterized by their partly internationalized membership, in the adjudication of cases that are highly controversial between the different ethno-political factions. The main focus is on the Constitutional Court of Bosnia, which presents one of the richest and most interesting examples of “lawfare” in divided societies. The concept of lawfare has been adapted to refer to the continuation of political battles by ethno-political actors through legal means, in this case, constitutional adjudication. In Kosovo, the Constitutional Court has been an important defender of diversity, albeit its primary focus and merit are to have contributed to the establishment of a concept of democracy close to the people of Kosovo. The article concludes that constitutional courts represent important institutions of internal conflict resolution in divided societies, which have been instrumental in shaping multiculturalism in these post-conflict societies divided by deep ethnic cleavages.

Discretion and Accountability: The ESMA Judgment and the Meroni Doctrine. Bruges European Economic Research (BEER) Papers 30/2014

This paper assesses the effectiveness of the Meroni doctrine in the light of the recent judgment in the ESMA case. The first part explains in detail the problem of delegation of powers in the EU from the perspective of the principal-agent theory and complements it with the analysis of the trade-off between different levels of independence and accountability of agencies. A simple economic model is developed to illustrated the relationship between the independence and accountability of an agency. It shows that it is the accountability mechanism that induces the agent to act, rather than the extent of his independence. The paper also explains the inter-temporal interactions between the principal and the agent on the basis of the incentives in place for the different players. The second part is devoted to analysis of the functioning of ESMA in the context of its delegated powers. After the presentation of main aspects of the regulatory framework establishing ESMA, the paper continuous with an analysis and interpretation of the discretionary powers of ESMA. The rather rigid position of the Court of Justice in relation to the Meroni doctrine seems to be unsuitable to delegation of complex regulatory tasks. This is particularly evident in the case of financial markets. Finally, the judgment does not examine in any detail whether and how the principals - i.e. the EU and Member States - are best able to evaluate the quality of ESMA decisions and regulations and whether there are different but more effective accountability mechanisms.

Justizkonflikt oder Normalisierung? = Flashlight Europe No. 1, March 2014: Justice conflict or normalization?

No abstract.

Ten Years of Judicial Cooperation. Occasional Paper 4/2014

This paper intends to illustrate the respective roles and functions of the Court of Justice of the EU (CJEU) on the one hand, and the Maltese national courts on the other. It will then define the scope and role of the judicial cooperation between the CJEU and the national courts, highlighting the procedure relating to the preliminary rulings. The paper will then briefly describe the cases brought before the CJEU involving Malta, including those concerning requests for preliminary rulings originating from Malta, and the direct actions by the European Commission before the Court of Justice, as well as those before the General Court. After a description of the rationale behind the publication of the book Malta u l-Qorti tal-Ġustizzja tal-Unjoni Ewropea (Malta and the Court of Justice of the European Union), and following the conference in which it was presented, the main points that emerged from the conference will serve as a backdrop to some statistical analysis pertaining to the Maltese cases, as well as some reflections on the current situation of the judicial cooperation obtained after ten years. It will propose that, besides a mere statistical analysis of the raw figures that emerge, one must rather address his attention to the spirit of EU membership, and reflect on whether Malta’s legal system has actually absorbed and understood the full meaning of the EU membership, ten years after it took place.

Die Europäische Union und das Rahmenübereinkommen zum Schutz nationaler Minderheiten: ignorieren, parallell “umsetzen“ oder gar beitreten? = The European Union and the Framework Convention for the Protection of National Minorities: ignore, "implement" or even join? EDAP Paper 04/2014

This paper looks at the Council of Europe Framework Convention for the Protection of National Minorities (FCNM) through the lense of European Union law. It does so by posing four major questions: does the fact that 24 of 28 Member States of the EU ratified the FCNM have any legal implications for the European Union itself? Secondly, turning to the national level, does it make a difference for the implementation of the FCNM whether or not a state that has ratified the FCNM is also a member to the European Union? Thirdly, returning to the European Union itself, can and should the EU accede to the FCNM? Or are there, finally, any means beside ratification that would allow the European Union to implement the objectives and obligations as enshrined in the FCNM? These four questions are analysed in detail before the paper concludes on the potential role of the European Union in managing diversity and protecting (persons belonging to) minorities.