Vol. 2 No. 1 (2022): Latin American Journal of European Studies

PUBLISHED: 2022-01-17

The Latin American Journal of European Studies (ISSN 2763-8685) is a publication of the Latin American Center of European Studies, created from the BRIDGE Project of Jean Monnet Network with funding from the Erasmus + Program of the European Commission. With a focus on the editorial lines on European Union Law and Policies and International Relations of the European Union with third countries and Latin America, the second edition of the Journal also has a thematic dossier on Democracy and protection of Human Rights in the European Union and Latin America, organized by Manuel Becerra da Universidad Nacional Autónoma de México (México). The third edition of the Journal is open for submissions until May 1st, 2022.

Full Issue

Editorial

Abstract

Aline Beltrame de Moura, Naiara Posenato, Manuel Becerra Ramírez

Dossier

LA REELECCIÓN PRESIDENCIAL INDEFINIDA EN PERSPECTIVA CONSTITUCIONAL E INTERNACIONAL COMPARADA: Reflexiones desde una mirada del derecho interamericano de los derechos humanos

Keywords:

Re-election; Human Rights; Comparative Constitutional law.

Abstract

The rights of participation in the political management of a State, and particularly in the positions of heads of State, have historically contributed to the development of regional constitutional norms to limit or make more flexible the possibility of reelection. In this context, recent events of some Presidents, justifying that they had a human right to be reelected indefinitely by the people, motivated these reflections from a conventional perspective in the Inter-American human rights system with a comparative perspective in the constitutions of the region. The aim of this paper is to analyze the normative and jurisprudential changes produced in the last decades in relation to the presidential re-election in the countries of the continent and its adaptation to the standards of human rights, on the one hand, and of the democratic regime, on the other. The paper concludes from the evolution of the rulings and advisory opinions of the Inter-American Court of Human Rights that there is currently no consolidated human right of the individual to remain indefinitely in political position.

Cristian Altavilla, Victorino Solá, Christian G. Sommer

FAMILY REUNIFICATION: Domestic and regional human rights courts perspective

Keywords:

Family reunification; Migration; Courts.

Abstract

Domestic and regional courts have a relevant role not only in applying international law but also in developing it. This paper aims to critically analyze how regional human rights courts and domestic courts decided cases regarding the right to family reunification in the context of migration. This right flows from and assures the human right to family, an essential institution to democracy. First, it provides an overview of the right to family reunification. Next, it discusses cases from the Inter-American
Court of Human Rights (IACHR) and from the European Court of Human Rights (ECHR), observing that the African Court of Justice and Human Rights has no cases in this regard. It further presents cases on family reunification contained in the Oxford International Law in Domestic Courts (ILDC) database. Finally, it concludes that regional human rights courts have played a key role in strengthening and specifying the right to family reunification. Domestic courts, on their turn, provide different contours to this topic, and their decisions gravitate among a spectrum. In one extreme is the child’s best interest principle and the family as a lynchpin to the society; on the other, it is the national security interest. However, all the decisions presented recognize protection for family reunification, even if only on exceptional or humanitarian grounds.

Lutiana Valadares Fernandes Barbosa, Ana Luiza Zago de Moraes

EL DERECHO A CONTRAER MATRIMONIO Y A FORMAR UNA FAMILIA COMO DERECHO HUMANO Y EL PROBLEMA DE LOS “MATRIMONIOS POR CONVENIENCIA” EN ESPAÑA

Keywords:

Private law; human rights; marriage of convenience.

Abstract

The right to marry is a right inherent to personal autonomy, which is presented as a fundamental manifestation of the autonomy that every human being should enjoy. The private autonomy of the interests pursued by the contracting parties is manifested in the choice of the type of marriage they wish to celebrate, whether civil or religious and whether in Spain or abroad. This limit to private and family life falls within the scope of Article 16 of the Universal Declaration of Rights and Article
32 of the Spanish Constitution. Thus, according to what is regulated, all those who are not forbidden by law to marry and who freely assume it can contract marriage according to the norms of human rights and, therefore, the authenticity of these marriages is not in doubt, as is the case with “marriages of convenience” which pursue certain secondary, accessory or indirect effects of marriage, disregarding the central or essential effect of marriage, which is none other than marital cohabitation.
These “marriages of convenience” make it possible to avoid the rules that regulate the deadlines and general procedures, in order to benefit one of the parties, and are a clear form of fraud against the rules on Aliens and Nationality.

Alfonso Ortega Giménez

33 ANOS DA CONSTITUIÇÃO DE 1988: Avanços e retrocessos na proteção do direito fundamental do trabalho

Keywords:

33 anos da Constituição; Força normativa; Direito fundamental ao trabalho.

Abstract

The present study outlines the main foundations for the postulation of the 1988 Brazilian Constitution and the Brazilian Labor
Constitution, the fundamentality of social rights of/to work, and the limits to the reforms proposed by the derived constitutional power and the ordinary legislator. The 1988 Brazilian Constitution represented a milestone for the protection of Labor Law. It is the duty of the society – 33 years after its paradigmatic shift – to defend it in a structural and comprehensive manner, including its principles, pacts, and international treaties. The need to be subjected to the filter of constitutionality and conventionality
in advance is deepened. Given the reality, the need to carry out this safeguard a posteriori is also increased, including the institute of the prohibition of retrogression and the progressivity of fundamental rights. Finally, the article analyzes how constitutional and infra-constitutional legislative reforms must be thought and rethought within a legal system with a formally strong, structured, and protective Constitution.

Marco Antônio César Villatore Lincoln Zub Dutra Miriam Olivia Knopik Ferraz.

THE RIGHT TO EQUALITY IN EUROPE AND LATIN AMERICA: Affirmative actions to promote non-discrimination of race and sex

Keywords:

Equality policies; Latin America; European Union.

Abstract

Although the concept of equality is universally valid, substantive equality is far from being achieved. For academic purposes, two equality issues were highlighted in this article: racial discrimination and affirmative action; and women equality and the implementation of quotas. In view of the current scenario, it is important to compare the different visions and applications of the concept of equality in the European Union and Latin America. The purpose of these comparisons, in line with this work’s aim, is to create a starting point for a commitment to equality. The methodology used in this academic work was bibliographic, analyzing concepts of civil and constitutional law doctrines, as well as scientific journals and periodical articles. Jurisprudential analyzes were also carried out. It was concluded that it is in the difference between the systems of laws that different jurisdictions can learn from each other in taking new initiatives to promote equality and fight discrimination.

Cecília Weiler , Patricia Grazziotin Noschang

DESAFIOS CONTEMPOR NEOS DE PROTEÇÃO AO DIREITO DOS REFUGIADOS: Direitos humanos violados com base na raça e na origem?

Keywords:

International Refugee Solidarity; Refugee Discrimination; Human Rights Protection.

Abstract

People who fear for their lives have intensified the search for safe havens in recent years. However, the search for refuge involves adversities beyond the escape routes, since it is up to the State in which the individual seeks refuge to grant or not this status. Moreover, there are still obstacles to be dealt with in this refuge cycle that permeate discrimination issues. Given this, this article seeks to examine the elements provided for in the proposals for reform of the system for granting refuge in the European Union and bring analysis that can serve as a comparison for the Latin American territory. It seeks to establish an analysis between the principle of international solidarity of refugees, and how the listed points make this right effective, in addition to determining whether and how, in terms of discrimination, the search for refuge today is also guided by segregation. The objective of this research will be to analyze the effectiveness of the refugee right, aiming to bring a reflection that can transcend any practical term that imputes in cases of discrimination against refugees. As for the research method adopted herein, the research is developed through bibliographic and documental analysis. Finally, it is gathered that there is discrimination regarding human rights and, therefore, the right to refuge, expressing observance in the protection of ndividuals in situations of fleeing, regardless of their origins.

Amon Elpídio da Silva

VIOLÊNCIA ALGORÍTMICA E TOMADA DE DECISÕES AUTOMATIZADAS

Keywords:

Violence; Data protection; Fundamental rights.

Abstract

The article aims to discuss the possibility of automated decisions consisting of acts of violence, as well as possible legal responses to this problem. For that, the hypothetical deductive method of investigation is chosen, through bibliographic research. Violence, as outlined by Byung-Chul Han, is something that does not disappear over time, but rather reinvents and transforms itself. In the context of a hyperconnected society, decision-making through algorithms or Artificial Intelligence is
an increasingly frequent reality, in the most varied areas, such as health, security, education and finance. The algorithm, alone, is not capable of promoting an act of violence, however, it can instrumentalize it, since it is capable of guiding critical decisions in the war sector, for example, as well as enhancing and integrating models that subject individuals to standards and imposed scores, which sometimes consist of unfair discriminatory practices. Considering that the processing of personal data is part of the decision-making process, legislation aimed at data protection becomes applicable, such as the European GDPR and the Brazilian LGPD, which, in addition to establishing principles, obligations and rights, ensure the individual the right of non-submission and review of the automated decision.

Gabriel Cemin Petry , Haide Maria Hupffer

LAS REACCIONES DE LA UNIÓN EUROPEA FRENTE A LOS ASESINATOS DE PERIODISTAS EN MÉXICO DURANTE EL SEXENIO DE ENRIQUE PEÑA NIETO, EN EL MARCO DE LA CLÁUSULA DEMOCRÁTICA Y DE DERECHOS HUMANOS DEL ACUERDO GLOBAL UNIÓN EUROPEA – MÉXICO

Keywords:

Freedom of expression; journalists; EU reactions.

Abstract

In Mexico and in other parts of the world, human rights violations are a constant. In this sense, the right to freedom of expression in the country is a particularly serious aspect that is reflected in the constant murders of journalists. The Global Agreement European Union (EU) – Mexico, which governs relations between both actors, contains a human rights and democratic clause that aims to encourage the parties to respect both universal values. This article aims to examine the EU’s response to certain human rights violations in Mexico, particularly freedom of expression during the period 2012-2018. For this reason, the present article is of a deductive order and mainly of an investigative-documentary profile, also drawing on extracts from the conduct of two interviews with key actors to obtain relevant information. This also shows specific data on the situation of the murders of journalists in Mexico through the use of graphs that visually reflect the above. The first section discusses
the relationship between foreign policy and human rights in Mexico and the EU, and then examines the situation of freedom of expression in Mexico, ending the EU’s reactions to the killing of journalists in Mexico. It is conclusive that a stronger EU is needed in the face of the situation of the violation of freedom of expression mentioned, an EU that manages to have a positive impact on the country.

Ana Adela Cruz Cervantes

O COMÉRCIO JUSTO COMO EXPRESSÃO DOS DIREITOS HUMANOS NA AMÉRICA LATINA E NO BRASIL

Keywords:

Human Rights; Latin America; Fair Trade.

Abstract

The instrumentalization of Human Rights through commerce represents the core of this research. Under this argument, Fair
Trade emerges as a social movement that brings the human being at the center of the discussions, ensuring that exchanges are sustainable from a social, economic and environmental point of view. Aspects such as respect for gender issues, prohibition of slave and child labor, freedom of association, among others, are made possible through the new commercial proposal. Special emphasis was given to the Latin American experiences – through CLAC (Coordinadora Latinoamericana y del Caribe de Pequeños Productores y Trabajadores de Comercio Justo) – and Brazil. The specific objectives of the investigation were: to characterize Fair Trade as a mercantile expression in the pursuit of Human Rights; to describe the transnational conception of Fair Trade as a vector for Human Rights; and, to evaluate the implementation of the rules related to Fair Trade, in the latin american and brazilian scope. The method used was the inductive critical, evaluating data and information in a qualitative
way. The means of research were bibliographic. As for the purposes, the research is descriptive and the results were exposed exclusively in the form of texts.

Joana Stelzer

A INADEQUAÇÃO DA GOVERNANÇA DOS AGROTÓXICOS NA RELAÇÃO ENTRE O BRASIL E A UNIÃO EUROPEIA: Uma análise sobre assimetrias e ameaças aos direitos humanos

Keywords:

Human rights; Governance; Pesticides.

Abstract

The reality on the governance of pesticides shows a fragile international regulatory framework associated with discriminatory
national laws and a low effectiveness of binding normative instruments in protecting people from the harmful effects linked to the use of these substances in modern agriculture. In the global trade of pesticides, there are economic asymmetries and different degrees of threats for human rights violations between pesticide exporting and importing countries. In view of this scenario, the aim of this article is to discuss the asymmetries and the different degrees of threats to human rights in the relationship between Brazil and the European Union, in order to suggest possibilities for improving the current structure. The research methodology was based on the qualitative method, using the technique of literature review and document analysis. The investigation findings revealed the phenomenon of the circle of poisoning, where human rights not only of the population
of Brazil, but also of other Latin American and European Union countries are being violated or threatened, such as the right to health and food security. The current regulatory and commercialization structure of pesticides also poses threats to the ecological balance of the planet, through its connection with the loss of biodiversity, deforestation and global warming. This reality demonstrates that it is urgent to improve the current regulatory framework. Possible recommendations were relationship between Brazil and the European Union needs to be strengthened taking into account the asymmetries and that governance needs to be enhanced and improved for the protection of the human rights’ world population and future generations, as well as the protection to the ecological balance of the planet. made for improving the international, regional and national governance structure. The final considerations are in the sense that the commercial relationship between Brazil and the European Union needs to be strengthened taking into account the asymmetries and that governance needs to be enhanced and improved for the protection of the human rights’ world population and future generations, as well as the protection to the ecological balance of the planet.

Tarin Cristino Frota Mont’Alverne, Beatriz Nunes Diógenes

LA SUSPENSIÓN DE DERECHOS EN SITUACIONES DE EMERGENCIAS SANITARIAS: Estudio desde el sistema americano y europeo de derechos humanos

Keywords:

Derogation; ECHR; ACHR.

Abstract

Article 27 of the ACHR and 15 of the ECHR establish substantive and formal requirements so that, without affecting the hard core of Human Rights, States can suspend the full enjoyment and exercise of a right protected by the respective instruments. Regarding the current international health emergency caused by COVID-19, dozens of European and American states have suspended certain rights in order to adopt measures that allow them to essentially preserve the Right to health. This paper, combining the legal and exegetical method, examines the exceptional situation, whereby a State adopted certain measures that may imply the temporary derogation of Human Rights (for example, sanitary nature measures); what limits and procedural conditions are required in ECHR and ACHR. And, on the current COVID-19 pandemic, it will analyze what measures, based on derogation, seem necessary to adopt in situations of health emergencies.

Ana Cristina Gallego Hernández

INTERNATIONAL PUBLIC ORDER

Keywords:

International public order; International rule of law; Evolution of international law.

Abstract

This work refers to the evolution of international law, fundamentally since the adoption of the San Francisco Charter. The work proposes two fundamental concepts: first, the creation of the rule of international law and the second concept is the existence of an international public order. The International Public Order (IPO) is a minimum legal standard, which has multiple components, and which cannot be exceeded by the subjects of international law, under penalty of their acts being vitiated by
absolute nullity or being a cause of international responsibility. In other words, it is a limit to the action of the subjects of international relations since their activity cannot exceed them because it would violate the Rule of International Law (RIL). This international public order is composed of human rights norms, the principles of international law, norms of international
humanitarian law and environmental norms. In addition, these rules and principles that make up the international public order have specific characteristics that give them originality compared to other rules.

Manuel Becerra Ramírez