Le rassegne dell'Accademia Diritto e Migrazioni - ADiM

La sezione dedicata alle rassegne di ADiM fornisce ogni mese:

  • una selezione di articoli di stampa (“Rassegna stampa”) e di pubblicazioni scientifiche (“Rassegna scientifica”) ritenuti utili a promuovere un dibattito pubblico e scientifico informato;
  • un aggiornamento sulle principali pronunce della giurisprudenza internazionale, europea e nazionale (”Rassegna giurisprudenziale”).

RASSEGNA STAMPA - ADiM

Consulta le rassegne stampa mensili dell’Accademia Diritto e Migrazioni – ADiM

 

 

RASSEGNE SCIENTIFICHE - ADiM

Consulta le rassegne scientifiche mensili dell’Accademia Diritto e Migrazioni – ADiM

LIBRI

  • Raymond Taras, Nationhood, Migration and Global Politics. An Introduction, First Edition, Edinburgh University Press, November 2018
  • A new introduction to contemporary nationhood that sets it apart from national identity, nationalism and diversity. Drawing on extensive research in transnationalism and ethnic conflict around the world, Raymond Taras introduces the concepts of nation and nationalism as they now stand in light of major demographic changes brought about by global migration. The result is a framework for understanding the emergence of postmodern nationhood in the era of globalisation and beyond. Based on rich case studies of immigration worldwide, Taras shows that nationhood occurs when the receiving state negotiates ethnic differences to form a natural bond with immigrants, rather than insisting on blind loyalty to the majority culture. The goal is a broad, value-added society of diverse peoples and successful prevention of criminality, ghettoisation, extremism and even radicalisation through reasonable immigrant integration.

 

 

  • Mary Crock and Lenni B. Benson (eds.), Protecting Migrant Children. In Search of Best Practice, Elgar, 2018
  • Unprecedented numbers of children are crossing international borders seeking safety. Framed around compelling case studies explaining why children are on the move in Africa, the Americas, Asia, Europe, the Middle East and Oceania, this book explores the jurisprudence and processes used by nations to adjudicate children’s protection claims. The book includes contributions from leading scholars in immigration, refugee law, children’s rights and human trafficking which critically examine the strengths and weaknesses of international and domestic laws with the aim of identifying best practice for migrant children.

 

 

  • Reihan Salam, Melting Pot or Civil War?: A Son of Immigrants Makes the Case Against Open Borders, New York, September 2018
  • For too long, liberals have suggested that only cruel, racist, or nativist bigots would want to restrict immigration. Anyone motivated by compassion and egalitarianism would choose open, or nearly-open, borders—or so the argument goes. Now, Reihan Salam, the son of Bangladeshi immigrants, turns this argument on its head. In this deeply researched but also deeply personal book, Salam shows why uncontrolled immigration is bad for everyone, including people like his family. Our current system has intensified the isolation of our native poor, and risks ghettoizing the children of poor immigrants. It ignores the challenges posed by the declining demand for less-skilled labor, even as it exacerbates ethnic inequality and deepens our political divides. If we continue on our current course, in which immigration policy serves wealthy insiders who profit from cheap labor, and cosmopolitan extremists attack the legitimacy of borders, the rise of a new ethnic underclass is inevitable. Even more so than now, class politics will be ethnic politics, and national unity will be impossible. Salam offers a solution, if we have the courage to break with the past and craft an immigration policy that serves our long-term national interests. Rejecting both militant multiculturalism and white identity politics, he argues that limiting total immigration and favoring skilled immigrants will combat rising inequality, balance diversity with assimilation, and foster a new nationalism that puts the interests of all Americans—native-born and foreign-born—first.

 

 

  • Francesca Ippolito, Seline Trevisanut (ed.), Migration in the Mediterranean. Mechanisms of International Cooperation, Cambridge, December 2018
  • Mediterranean states have developed various cooperation mechanisms in order to cope with the issues that arise from migration. This book critically analyses how institutional actors act and interact on the international scene in the control and management of migration in the Mediterranean. It highlights how, even though the involvement of ‘universal’ international organisations guarantees a certain balance in setting the goals of cooperation mechanisms and buttresses a certain coherence of the actions, the protection of migrants’ fundamental rights is still an objective as opposed to a reality, and security imperatives and trends still prevail in the aftermath of the 2011 Arab Spring.

 

 

 

 

 

ARTICOLI

 

 

  • Marko Valenta, Moa Nyamwathi Lønning  Jo Jakobsen  Drago Župarić-Iljić, European Asylum Policies and the Stranded Asylum Seekers in Southeastern Europe, in Journal of Refugee Studies, 2019
  • This article focuses on the restrictive European asylum policies and on their humanitarian consequences in Southeastern Europe. We discuss two interrelated topics: (i) the dynamic of the migration of asylum seekers to Europe and (ii) the specific position of Southeastern European countries and the situation of stranded migrants in the region. We identify central elements in the European asylum system and suggest that different parts of the system may be seen as a set of interacting lines of deterrence used to curb asylum migrations. It is argued herein that Greece and the other countries at the southern borders of the European Union have an idiosyncratic position within the European system of deterrence. Furthermore, we discuss how European deterrence policies and local responses influence the migration patterns of asylum seekers in Southeastern Europe. It is maintained that the deterrence measures have contributed to increasing the number of stranded asylum seekers in the region, especially in Greece with clear and regrettable humanitarian consequences.

 

 

  • Rogier Bartels, The Relationship between International Humanitarian Law and the Notion of State Sovereignty, in Journal of Conflict and Security Law, December 2018, Volume 23, Issue 3, p. 461–486.
  • This article explores the relationship between the laws of armed conflict, or international humanitarian law (IHL), and the international legal concept of State sovereignty. Historically, only wars between sovereign States were subject to regulation by the laws of war. From the 19th century onwards, States agreed upon a significant number of IHL treaties and in 1949, despite calls upon sovereignty, they accepted that international law can also regulate non-international armed conflicts by extending a limited part of the IHL rules to this type of conflict. Since then, through the formation of customary international law and, in part, as result of new treaties, it has been accepted that the majority of IHL rules have become applicable to armed conflicts of a non-international character. In addition, international institutions have been set up to prosecute individuals for serious violations of IHL. The author discusses how IHL and sovereignty have influenced each other’s development. The analysis shows that the development of IHL must not be seen as limiting State sovereignty, but rather ought to be regarded as a manifestation of sovereignty, expressed through the formation of this branch of international law by its core subjects: States. At the same time, as a result of the increased reliance on means other than treaties for clarification and development of IHL, the role of States has become more limited; it is reduced to either accepting or rejecting the prospective developments of IHL and any consequential impact on their sovereignty.

 

 

  • Mario Giro, Le migrazioni dall’Africa: una “rivoluzione dell’io”, in il Mulino, n. 5/18

    “Lo Stato africano indipendente nasce come una realtà forte, accentratrice e autoritaria. Il potere si concentra attorno a poche élite (nella definizione africana: i clan/le famiglie/i lignaggi più importanti), strette a loro volta attorno al «capo», in genere il «presidente fondatore» o il «rifondatore» della Repubblica. Attorno al capo agiscono le rivalità dei vari clan, sia quelli già autorevoli, sia quelli che vogliono emergere. Il miglior capo è colui che sa creare attorno a sé un equilibrio stabile tra le varie dispute (fazioni?). In tale contesto di alleanze, dall’inizio degli anni Sessanta fino alla fine degli anni Ottanta, il potere reale del sistema risiede nella capacità dello Stato (e di chi lo dirige) di distribuire risorse e prebende. Lo Stato è tutto: rappresenta non solo l’ordinatore della vita sociale, ma anche l’economia, intesa come impiego pubblico. L’unico vero sbocco lavorativo per i giovani è entrare nella «funzione pubblica». Nel corso degli anni, la burocrazia statale africana diviene sempre più esorbitante: una forma di controllo pervasivo, ma anche un metodo di redistribuzione…”

 

  • Carmelo Danisi, What ‘Safe Harbours’ are There for People Seeking International Protection on Sexual Orientation and Gender Identity Grounds? A Human Rights Reading of International Law of the Sea and Refugee Law, in GenIUS, 2018, n. 2
  • Nel contesto della “crisi” del Mediterraneo con la chiusura dei porti ai migranti diretti in Europa, questo contributo si interroga su cosa sia efettivamente un “porto sicuro” per coloro che chiedono protezione internazionale sulla base dell’orientamento sessuale e/o dell’identità di genere (SOGI). A tal fne, si procede con una lettura delle norme applicabili, specie quelle relative al diritto internazionale del mare e al diritto internazionale dei rifugiati, alla luce degli sviluppi in materia di diritti umani. Inoltre, si guarda anche alla questione della possibile applicazione extraterritoriale degli obblighi assunti in tale materia sia dagli Stati europei sia dall’Ue al fne di garantire rotte sicure a tali richiedenti. Si ritiene, infatti, che garantire un “porto sicuro” ai richiedenti SOGI implichi una visione più ampia del concetto di “place of safety” a esso collegato, tanto in termini di rotte, di destinazioni dopo le operazioni di salvataggio in mare e di accoglienza. A ben vedere, se applicate in modo efettivo e con la dovuta diligenza, gli obblighi già assunti dagli Stati europei e dall’Ue potrebbero migliorare la condizione di tali richiedenti durante il loro viaggio e arrivo in Europa.

 

 

RAPPORTI

Libri

 

  • Charlotte Lülf, Conflict Displacement and Legal Protection, Understanding Asylum, Human Rights and Refugee Law, Routledge, 2019 (febbraio).
  • While the 21st century bears witness to several conflicts leading to mass displacement, the conflict in Syria has crystallised the need for a solid legal framework and legal certainty. This book analyses the relevant legal instruments for the provision of a protection status for persons fleeing to Europe from conflict and violence. It focuses on the conceptualisation of conflict and violence in the countries of origin and the different approaches taken in the interpretation of them in the 1951 Refugee Convention, the Recast Qualification Directive of the European Union and the European Convention on Human Rights. It traces the hierarchical order of protection granted, starting with refugee protection status, to subsidiary protection status and finally with the negative protection from non-refoulement. Recent case law and asylum status determination practices of European countries illustrate the obstacles in the interpretation as well as the divergence in the application of the legal instruments. The book fills an important gap in examining the current practices of key actors, including the United Nations High Commissioner for Refugees and European states, tracing changes in national and international policies and revealing discrepancies towards contemporary approaches to conflicts. It refines the interaction and cross-fertilisation of the different relevant fields of European asylum law, human rights law and the laws of armed conflict in order to further the development of a harmonised protection regime for conflict-induced displacement.
  • Jane Freedman, Zeynep Kivilcim, Nurcan Özgür Baklacıoğlu (Edited by), A Gendered Approach to the Syrian Refugee Crisis, Routledge, 2019 (gennaio)
  • The refugee crisis that began in 2015 has seen thousands of refugees attempting to reach Europe, principally from Syria. The dangers and difficulties of this journey have been highlighted in the media, as have the political disagreements within Europe over the way to deal with the problem. However, despite the increasing number of women making this journey, there has been little or no analysis of women’s experiences or of the particular difficulties and dangers they may face. A Gendered Approach to the Syrian Refugee Crisis examines women’s experience at all stages of forced migration, from the conflict in Syria, to refugee camps in Lebanon or Turkey, on the journey to the European Union and on arrival in an EU member state. The book deals with women’s experiences, the changing nature of gender relations during forced migration, gendered representations of refugees, and the ways in which EU policies may impact differently on men and women. The book provides a nuanced and complex assessment of the refugee crisis, and shows the importance of analysing differences within the refugee population. Students and scholars of development studies, gender studies, security studies, politics and middle eastern studies will find this book an important guide to the evolving crisis.
  • Katherine Tonkiss, Tendayi Bloom (Edited by), Theorising Noncitizenship Concepts, Debates and Challenges, Routledge, 2019 (gennaio)
  • ‘Noncitizenship’, if it is considered at all, is generally seen only as the negation or deprivation of citizenship. It is rarely examined in its own right, whether in relation to States, to noncitizens, or citizens. This means that it is difficult to examine successfully the status of noncitizens, obligations towards them, and the nature of their role in political systems. As a result, not only are there theoretical black holes, but also the real world difficulties created as a result of noncitizenship are not currently successfully addressed. In response, Theorising Noncitizenship seeks to define the theoretical challenge that noncitizenship presents and to consider why it should be seen as a foundational concept in social science. The contributions, from leading scholars in the field and across disciplinary backgrounds, capture a diversity of perspectives on the meaning, position and lived experience of noncitizenship. They demonstrate that, we need to look beyond citizenship in order to take noncitizenship seriously and to capture fully the lived realities of the contemporary State system. This book was previously published as a special issue of Citizenship Studies.
  • Isabel M. Borges, Environmental Change, Forced Displacement and International Law. From legal protection gaps to protection solutions, Routledge, 2018 (dicembre)
  • This book explores the increasing concern over the extent to which those suffering from forced cross-border displacement as a result of environmental change are protected under international human rights law. Formally they are not entitled to admission or stay in a third state country, a situation that has been identified as an international “legal protection gap”. The book seeks to provide answers to two basic questions: whether and to what extent existing international law protects cross-border environmental displacement, and whether and how existing formalized regional complementary protection standards can interpretively solidify and conceptualize protection for cross-border environmental displacement. The discussion outlines that the protection of the human person is not only an ex post facto obligation of states, but must be increasingly seen as an ex ante one. The analysis further suggests that the European Union regionally orientated protection regime can help states to consolidate an evolving protection paradigm of proactive and reactive measures being erected at the international level. It can also narrow the identified legal protection gaps. In so doing, it helps states to reconceptualise protection as a holistic and dynamic enterprise. This book will be of great interest to academics in law, political science and human rights, policy makers and civil society organisations both at national and international level.
  • Ilenia Ruggiu, Culture and the Judiciary The Anthropologist Judge, Routledge, 2018 (dicembre)
  • How can jurists resolve multicultural conflicts? Which kind of questions should judges ask when culture enters the horizon of the law? Are they then called to become anthropologists? Through the analysis of hundreds of cases produced through decades of multicultural jurisprudence, this book reconstructs the constitutional and anthropological narratives and the legal techniques used by Western judges to face the challenges posed by multiculturalism: from Japanese parent–child suicide to the burqa, from Jewish circumcision to Roma begging, from kissing a son on his genitals to the claim of indigenous people to fish salmon in natural parks, the book brings the reader into a fascinating journey at the crux of the encounter between the relativism of anthropology and the endeavor toward a democratic coexistence pursued by the law. After identifying the recurrent themes or topoi used by judges and lawyers, this book critically analyzes them, evaluates their persuasive power and suggests a “cultural test” that gathers together the crucial questions to be answered when resolving a multicultural dispute. The “cultural test” is a matrix that guides the judge, lawyers and legislatures across the intricate paths of multiculturalism, to assure a relational dialogue between the law and anthropology.

 

Articoli

 

  • Philipp Lutz, Variation in policy success: radical right populism and migration policy, in West European Politics, 2019, Volume 42 – Issue 3, p. 517 ss.
  • How do radical right populist parties influence government policies in their core issue of immigration? This article provides a systematic analysis of the direct and indirect effects of radical right anti-immigration parties on migration policy reforms in 17 West European countries from 1990 to 2014. Insights from migration policy theory serve to explain variations in the migration policy success of the radical right. While previous studies mostly treat migration policy as uniform, it is argued that this approach neglects the distinct political logics of immigration and integration policy. This article reveals significant variations in policy success by policy area. While immigration policies have become more liberal despite the electoral success of the radical right, when the radical right is in government office it enacts more restrictions in integration policies. Accordingly, anti-immigrant mobilisation is more likely to influence immigrants’ rights than their actual numbers.
  • Edgar Grande, Politicizing immigration in Western Europe, in Journal of European Public Policy, 2019.
  • Immigration has become a hot topic in West European politics. The factors responsible for the intensification of political conflict on this issue are a matter of considerable controversy. This holds in particular for the role of socio-economic factors and of radical right populist parties. This article explores the politicization of immigration issues and its driving forces in the electoral arena. It is based on a comparative study using both media and manifesto data covering six West European countries (Austria, France, Germany, Netherlands, Switzerland, and the UK) for a period from the early 1990s until 2017. We find no association between socio-economic factors and levels of politicization. Political conflict over immigration follows a political logic and must be attributed to parties and party competition rather than to ‘objective pressures.’ More specifically, we provide evidence that the issue entrepreneurship of radical right populist parties plays a crucial role in explaining variation in the politicization of immigration.
  • Simone Moriconi, Giovanni Peri, Riccardo Turati, Skill of the Immigrants and Vote of the Natives: Immigration and Nationalism in European Elections 2007-2016, in NBER Working Paper No. 25077.
  • In this paper we document the impact of immigration at the regional level on Europeans’ political preferences as expressed by voting behavior in parliamentary or presidential elections between 2007 and 2016. We combine individual data on party voting with a classification of each party’s political agenda on a scale of their “nationalistic” attitudes over 28 elections across 126 parties in 12 countries. To reduce immigrant selection and omitted variable bias, we use immigrant settlements in 2005 and the skill composition of recent immigrant flows as instruments. OLS and IV estimates show that larger inflows of highly educated immigrants were associated with a change in the vote of citizens away from nationalism. However the inflow of less educated immigrants was positively associated with a vote shift towards nationalist positions. These effects were stronger for non-tertiary educated voters and in response to non-European immigrants. We also show that they are consistent with the impact of immigration on individual political preferences, which we estimate using longitudinal data, and on opinions about immigrants. Conversely, immigration did not affect electoral turnout. Simulations based on the estimated coefficients show that immigration policies balancing the number of high-skilled and low-skilled immigrants from outside the EU would be associated with a shift in votes away from nationalist parties in almost all European regions.
  • Damian Lilly, UNRWA’s Protection Mandate: Closing the ‘Protection Gap’, in International Journal of Refugee Law, Volume 30, Issue 3, 30 December 2018, Pages 444–473.
  • Palestinian refugees represent the largest protracted displacement situation in the world. It has been suggested that they experience a ‘protection gap’ because of the limited applicability of international refugee law and the lack of a UN entity with an explicit mandate for their protection. Such claims, however, have overly focused on the status of Palestinian refugees under the 1951 Convention relating to the Status of Refugees and the lack of a UN agency with responsibility for promoting durable solutions for them. This article argues that there are many aspects of international law other than the Refugee Convention, that are relevant to the protection of Palestinian refugees, and that the protection mandate of the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) has also evolved significantly in recent years and now addresses many of the protection challenges they face. As such, the suggestion that they face a ‘protection gap’ is significantly exaggerated. While Palestinian refugees continue to be confronted by serious protection challenges, the protection that UNRWA is able to provide them is not too dissimilar to that provided by other humanitarian organizations, including the protection UNHCR provides for other refugees globally. In this sense, the legal and institutional impediments to the protection of Palestinian refugees have narrowed.
  • Shani Bar-Tuvia, Australian and Israeli Agreements for the Permanent Transfer of Refugees: Stretching Further the (Il)legality and (Im)morality of Western Externalization Policies, in International Journal of Refugee Law, Volume 30, Issue 3, 30 December 2018, Pages 474–511.
  • This article examines a new and unprecedented policy that has been recently implemented by Australia and Israel against refugees, namely their permanent transfer to less developed and less stable countries in return for some form of payment to these receiving countries. It argues that these policies should be seen as part of an all-Western ‘externalization’ trend, encompassing various policies that were implemented by Western countries over the past two decades with the goal of reducing the number of asylum seekers on a country’s territory. The Australian and Israeli transfers share not only this goal of previous externalization policies, but also some of their methods. Notwithstanding these similarities, the article explores how the Australian and Israeli transfers differ from the externalization precedents, and particularly from ‘Safe Third Country’ transfers. Two main distinctions are discussed. First, these are not transfers for the purpose of Refugee Status Determination, but rather permanent transfers of people with a clear need for international protection. Secondly, the receiving countries are not ‘transit’ countries through which people have crossed. These two differences mean that the Australian and Israeli policies stretch the already questionable legality and morality of previous externalization policies. It is argued that, legally, even if the transfers do not amount to direct refoulement, they constitute ‘constructive’ refoulement, clearly putting Israel in violation of article 32 of the 1951 Refugee Convention (prohibition on expulsion), and both countries in violation of article 3 (prohibition on discrimination), and potentially additional articles. It is further argued that the transfers are unconscionable for several important non-legal reasons: they affect the well-being of vulnerable people, they have no justification (apart from deterrence), they are confidential and extremely expensive, and they constitute a new level of arbitrary burden shifting to poorer and less stable countries. As long as they are seen as a continuation of an established all-Western externalization trend, their unconscionability should prompt scrutiny of the trend as a whole.
  • Jinske Verhellen, Cross-Border Portability of Refugees’ Personal Status, in Journal of Refugee Studies, Volume 31, Issue 4, 1 December 2018, Pages 427–443.
  • European countries will sooner or later inevitably be confronted—again—with important legal issues that transcend the current short-term crisis management (reception of refugees, ‘bed-bath-bread’ and other logistical issues). This article will take a closer look at one of the long-term legal concerns, namely the cross-border portability of refugees’ personal status (age, parental status, marital status, etc.). It will discuss legal problems encountered by asylum seekers/refugees with regard to their personal status acquired in one country and transferred to another country (such as the absence of documentary evidence, the issue of limping legal relationships). At present, insufficient research data exists on the interaction between international refugee law (relating to the rights and obligations of states regarding the protection of refugees) and private international law (dealing with private relationships in a cross-border context). These interactions are not new, but the current refugee flows into Europe prove in a striking way how ineffective the interplay between the two sets of rules is. The article will discuss the private international law concept of personal status in international refugee law and the international refugee protection in private international law instruments.
  • Murdoch Stephens, Rethinking Frameworks for Refugee Advocacy: An Analysis Grounded in Political and Democratic Institutions, in Journal of Refugee Studies, Volume 31, Issue 4, 1 December 2018, Pages 528–543.
  • A human rights framework has become the default approach to framing advocacy for the rights of refugees. However, with the process of refugee resettlement expanding, there is a need for a framework that would help refugee advocates to conceptualize their relationship to the democratic institutions that facilitate and maintain rights-based approaches. Working through Chantal Mouffe’s distinction between liberal and democratic ideals, this article proposes a democratic framework that works as a supplement to a rights framework. The democratic framework orientates advocates towards working with other advocacy groups, media, politicians and the general public. This framework is illustrated through three key points in the efforts of New Zealand refugee advocates to achieve the first refugee quota increase in that country since 1987.
  • Daniela Vitiello, The Dublin System and Beyond: Which Way Out of the Stalemate?, in Diritti umani e diritto internazionale, 2018, n. 3 (settembre-dicembre), pp. 463-480.
  • The Common European Asylum System can be envisioned as a ‘progressive development’ of the international refugee regime at the regional level. However, the foundational “raison d’être” of its prime operational tool – the Dublin Regulation – is connected to the ‘exclusionary function’ of the common external borders of the Union. The inherent irrationality of Dublin cooperation has led to its recurrent deadlocks. Their impact on both asylum seekers’ rights and the principles guiding intra-EU cooperation has been tested before the European Court of Human Rights and the European Court of Justice on several occasions since the landmark rulings in the cases “M.S.S.” and “N.S.” The dialogue between the Courts offers precious guidance for a sustainable and effective reform of the Dublin system, but also calls on the EU legislator to do its part. On the contrary, the replacement of Dublin with greater externalisation, proposed by the European Council and the Commission since June 2018, seems unsuited for the purpose. This paper charters relevant case law and legislative “status quo”, in order to explore more legitimate and feasible alternatives to eventually escape from the Dublin stalemate.
  • Yvonne Donders, Towards a Right to Cultural Identity? Yes, Indeed!, in Diritti umani e diritto internazionale, 2018, n. 3 (settembre-dicembre), pp. 523-548.
  • The aim of this contribution is to ascertain whether a right to cultural identity can be considered as existing in the context of international human rights law. In the past two decades the recognition of such a right in relevant practice has in fact progressively grown, to the point that it has attained huge consideration among human rights experts and practitioners. Is the said practice sufficient to support the position that a right to cultural identity actually exists as a ‘self-standing’ right? The answer should be no if ‘exist’ means that it is a rule incorporated in positive law. So far States have not incorporated cultural identity as a substantive right in an international treaty or other legal instrument. The lack of common State practice and “opinio juris”, reflected in the limited amount of and specialized caselaw, makes that the right to cultural identity can probably not be considered a rule of international customary law. However, the answer is instead yes if one looks beyond a strict rule and sees the right to cultural identity as an important emerging norm. This norm can be part of other existing human rights, but it is increasingly becoming a self-standing norm developed by caselaw and other interpretative documents.
  • Federico Lenzerini, Freewheeling and Provocative: Why Using Pre-established Criteria for Settling Culturally-based Human Rights Disputes Is Impracticable, in Diritti umani e diritto internazionale, 2018, n. 3 (settembre-dicembre), pp. 549-576.
  • While human rights reclaim universalism, the concrete expectations arising from them are in many cases determined by the cultural specificity of the people concerned. The fact of trying – to the extent possible – to meet these expectations is an imperative inherent in human rights, for the reason that the main aspiration of the latter is to guarantee their own effectiveness, which translates into a requirement that they are guaranteed on the basis of “effective equality”. But effective equality inescapably requires that different situations are treated differently. This is the reason why the search for objective pre-determined criteria aimed at settling culturally-determined human rights controversies, as well as at establishing whether a given cultural practice is compatible with human rights standards, is impracticable. In fact, in such cases the solution may only be determined on a case-by-case basis, through balancing the different rights at stake with each other and ascertaining (to the extent possible) which of them is to be attributed more weight in each concrete case.

RASSEGNE DELLA GIURISPRUDENZA - ADiM

Consulta le rassegne della giurisprudenza mensili dell’Accademia Diritto e Migrazioni – ADiM

  • Tribunale di Catania, Sez. Reati Ministeriali, Relazione sugli atti del procedimento a carico del Ministro dell’Interno Matteo Salvini
  • Il Tribunale dei Ministri, visto l’art.8, comma 1, Legge Costituzionale n.1/89, dispone la trasmissione degli atti e del presente provvedimento al Procuratore della Repubblica di Catania affinché ne curi l’immediata rimessione al Presidente del Senato per l’avvio della procedura prevista dall’art.9 Legge Cost. citata per il rilascio dell’autorizzazione a procedere nei confronti del Senatore Matteo Salvini in ordine al reato di sequestro di persona aggravato p. e p. dall’art. 605, comma I, II n.2 e III, c.p., “per avere, nella sua qualità di Ministro dell’Interno, abusando dei suoi poteri, privato della libertà personale 177 migranti di varie nazionalità giunti al porto di Catania a bordo dell’unità navale di soccorso “U. Diciotti” della Guardia Costiera italiana alle ore 23:49 del 20 agosto 2018.
  • Link a file PDF (Tribunale di Catania)

 

 

  • Corte europea dei diritti dell’uomo, sez. IV, M.A. e altri c. Lituania, sentenza dell’11 dicembre 2018, causa n. 59793/17.
    In order to remain the “conscience of Europe”, the Court must ensure the effective protection of migrants and especially of asylum-seekers, which requires scrutiny of States’ actions at their land borders and, more specifically, the guarantee of a right of access to international protection procedure. Land borders are not zones of exclusion or exception from States’ human-rights obligations, and this observation also applies to the intermediate zones between border fences and to transit zones. Jurisdiction under both refugee and human-rights law is presumed to be exercised within a State’s territory, including its land borders, international zones, transit zones or areas that are otherwise excised for immigration purposes.

 

  • Corte europea dei diritti dell’uomo, sez. V, Cabucak c. Germania, sentenza del 20 dicembre 2018, causa n. 18706/16.
  • The Court recognises that the domestic courts carefully balanced the competing interests and explicitly took into account the criteria set out in the Court’s case-law. Moreover, having regard to the gravity of the drug-related criminal offences committed by the applicant, and considering the sovereignty of member States to control and regulate the residence of aliens on their territory, the Court finds that the interference was supported by relevant and sufficient reasons, and was proportionate in that a fair balance was struck between the applicant’s right to respect for his private and family life, on the one hand, and the prevention of disorder or crime, on the other hand. In these circumstances the Court concludes that the interference with the applicant’s right to private and family life as protected under Article 8 § 1 of the Convention was justified under Article 8 § 2 of the Convention.

 

 

  • Consiglio di Stato, sez. II, sentenza n. 00494 del 21 gennaio 2019
  • La presenza della moglie italiana non costituisce motivo idoneo a superare la valutazione di pericolosità sociale, tenuto conto del preminente interesse pubblico alla sicurezza tale da far recedere quello alla vita familiare del cittadino straniero macchiatosi di un reato che denota particolare allarme sociale, tenuto conto delle specifiche modalità della condotta penalmente rilevante.

 

  • Corte d’Appello di Brescia, sentenza del 18 gennaio 2019 – (Sentenza pubblicata da ASGI)
  • Costituisce molestia razziale ex art. 2 co. 3 D.Lgs. 215/2003 attribuire un fine lucrativo agli enti impegnati nell’accoglienza e definire i richiedenti asilo clandestini, in quanto tali condotte sono idonee a creare un “clima intimidatorio” e “ostile” nei confronti delle associazioni, clima che può avere senz’altro ripercussioni dirette sui servizi resi ai richiedenti asilo. Quale rimedio a tale discriminazione le associazioni hanno diritto al risarcimento del danno (che nella specie è stato quantificato in 3340 euro).