Vol. 1 No. 2 (2021): Revista Latinoamericana de Estudios Europeos

PUBLISHED: 2021-08-04

El Latin American Journal of European Studies (ISSN 2763-8685) es una publicación del Centro Latinoamericano de Estudios Europeos, creada a partir del proyecto BRIDGE - Jean Monnet Network con financiamiento del Programa Erasmus + de la Comisión Europea. Centrándose en líneas editoriales sobre Derecho y Políticas de la Unión Europea y Relaciones Internacionales de la Unión Europea con terceros países y América Latina, la segunda edición de la Revista también cuenta con un dossier temático sobre Migración y ciudadanía en la Unión Europea y América Latina, organizado por Aline Beltrame de Moura de la Universidade Federal de Santa Catarina (Brasil) y Sandra Negro de la Universidad de Buenos Aires (Argentina). La convocatoria de la segunda edición de la Revista ya se encuentra abierta y los interesados pueden enviar sus ponencias hasta el noviembre de 2021.

Edición completa

Editorial

Resumen

Aline Beltrame de Moura, Naiara Posenato, Sandra Negro

Dossier

CIUDADANÍA EUROPEA Y REAGRUPACIÓN FAMILIAR DE MENORES SOBRE LOS QUE SE HA CONSTITUIDO UNA KAFALA

Palabras clave:

Directive 2004/38/EC, Concept of “direct descendant”, Child under permanent legal guardianship under the kafala regime

Resumen

The mobility of persons within the European Union is inherent to the status of citizenship. The essential content of this status requires adequate protection of their right to family life. The objectives of this paper are: firstly, to analyse to what extent the best interests of the child and the right to family life oblige the competent authorities of the Member States of the European Union to facilitate the entry and residence of a child over whom European citizens have constituted a kafala. Secondly, to analyse, in the event that such an obligation exists, the influence it has on the aliens law of the Member States and, in particular, on Spanish law. And, thirdly, to determine whether or not consideration as a member of the family for the purposes of entering a certain EU Member State should be conditional on the prior recognition of the judicial decision of the State where the kafala has been constituted. The methodology employed in this work is that of legal research: a selection of normative materials, case law of the Court of Justice of the European Union and doctrine that has been considered sufficiently relevant is analysed. The results achieved are: 1) To demonstrate that the competent authorities of the Member States have the obligation to facilitate the entry and residence of a minor who has formed a kafala, provided that there is a reasonable expectation of family life and that it does not derive from a manifestly fraudulent situation. 2) Analyse the consequences that this obligation generates in Spanish immigration law. 3) To show how the model based on mutual recognition is imposed in this area, where the only thing to be done is to check the regularity of the document.

Nuria Marchal Escalona

ASPECTOS SOCIALES Y LEGALES SOBRE LA INMIGRACIÓN ENTRE ESPAÑA Y CENTROAMÉRICA

Palabras clave:

Central America, Spain, Immigration

Resumen

The purpose of this article is to provide a historical and social overview of the immigration that took place more than five centuries ago from Spain to Central America and how, subsequently, this flow of immigration has changed from Central America to Spain due to multiple intertwined factors that promote it. Further, this article aims to introduce the reader in a general way to the basic immigration legislation in force both in Spain and Central America and to the legal challenges that Central American immigrants undergo as active subjects of the right to asylum. The wave of Central American immigrants to which Spain has been subjected recently has led to the collapse of its asylum system. These events have raised the urgent need for the Spanish government to review the conditions and circumstances established in the relevant legislation following the guidelines provided by the UNHCR on international protection for those who emigrate for security reasons.

Nancy Eunice Alas Moreno

O IMIGRANTE COMO CIDADÃO GLOBAL: uma perspectiva multicultural

Palabras clave:

Migration, Global citizenship, Multiculturalism

Resumen

Migration has ceased to be a problem of the states and has become an issue of interest of the international community, and therefore its global perspective, which stems from the risk society and globalization, must be studied, institutionalized and analyzed in the light of human rights standards in the context of cosmopolitanism. Moreover, the global citizenship of the immigrant should be consolidated through the multicultural perspective and with the prevalence of the right to difference.
The intensification of migratory flows, resulting from human rights violations, consigns the relevance of the theme, which is justified by the need to refute the policy of securitization of borders by States, which leads to the dehumanization of immigrants, treated as minority groups, strangers and dangerous. Based on the above assertions, it is worth noting that the general objective of this paper is to analyze the intersectionality between migration, citizenship and multiculturalism and, in turn, the specific
objective is to analyze the legal institute of global citizenship as a means of conferring the ability to act to immigrants in the supranational context. The deductive method was chosen, with the technique of indirect documentation and the procedure of doctrinal and legislative analysis. As a result, it is expected to reach, as a result, the verification of the idea that global citizenship supplants national citizenship and is exercised within spaces of political and democratic participation that take into consideration the personality rights of the immigrant, as a subject of international law. The article will be composed of three chapters, divided as follows: initially, the paper will analyze migration from a global perspective, then, it will go into the study of the multicultural perspective of migration and, finally, it will address the institute of global citizenship of immigrants from a multicultural perspective. With these objectives, with the methodology adopted and due to the relevance of the topic, the purpose of the work is to answer the following problem: is multiculturalism able to guarantee the means of action to the immigrant so that he is effectively considered a global citizen?

Claudia Regina de Oliveira Magalhães da Silva Loureiro

LA POLITICA MIGRATORIA DEBE EQUIPARAR DERECHOS DE NACIONALES Y MIGRANTES PARA CONTRIBUIR AL DESARROLLO SOSTENIBLE

Palabras clave:

Migration, Citizenship, Development

Resumen

The purpose of this written work is analyze the impact of migrants in the development of Latin America and Europe. The inter-american Judicial System is at de forefront regarding the equalization of rights for migrants and nationals. adapting human rights for migrants. Latin America had a large flow of immigration since the XIX century, and therefore has a vast experience in restriction and openings that different governments had ruled about the rights of migrants. Civil society is a very important actor for the social inclusion and development of migrants. The Global Compact for Safe, Orderly and Regular Migration says that if migrants are integrated thy can better contribute for the development of states. There are pending challenges for the Charter of Fundamental Rights of the European Union and The Strategic Plan of Social Action of Mercosur, in the community law. Development of states is closely related with de social cohesion of migrants. The States must deny individual and
bilateral positions that undermine integration.

Silvia Fernanda Menéndez

LA INTEGRACIÓN DE LA POBLACIÓN INMIGRANTE EN LA UNIÓN EUROPEA

Palabras clave:

Citizenship, Latin America, Europe

Resumen

The aim of this work is to lay the foundations for an appropriate Community policy on immigration that facilitates the integration of foreigners, by means of a legal model common to the 27 Member States
of the European Union, based on the following pillars: a) on the idea of immigration as an exchange, a driving force for progress and peace; b) on the recognition of the rights and freedoms of foreigners and their non-criminalisation; c) on the attack on illegal immigration at its source, acting on the causes that generate and sustain it; and, d) on the strengthening of control mechanisms for offences related to the irregular hiring of foreigners. In order to achieve the main objectives of the manuscript presented, and given that its main characteristic is a legal object, a dual dogmatic-empirical legal methodology is proposed as a model. The dogmatic legal methodology consists of a doctrinal study and the use of written sources to understand the phenomenon of immigration in the EU from a theoretical-practical perspective. The empirical methodology is based on a field study with the aim of analysing the policies
and regulations on immigration in the different member states, where it is possible to observe the existing differences between the countries of the centre and the countries of the south, between all of these and the Nordic countries. The result obtained, after the application of this methodology, is a theoretical-practical study that delves into the need to create a common model of effective integration of the immigrant population in the EU, where freedom of movement and the principle of equality should
inspire all its legislation, so that this phenomenon can be seen from a different perspective, and so that both nationals and foreigners can benefit from the potential and the opportunity that the migratory phenomenon represents.

Alfonso Ortega Giménez

OS LIMITES ATUAIS DO ACESSO DOS ESTRANGEIROS AOS DIREITOS POLÍTICOS NA AMERICA LATINA E NA EUROPA

Palabras clave:

Inmigration, Integration, European Union

Resumen

The increase in the flow of foreigners in various countries and the perception of the importance of political rights as fundamental rights lead to reflection on the possibility of political rights for foreigners. This article aims to analyze the limits of foreign access to political rights in Latin America and Europe. Through a documentary, bibliographic, qualitative and descriptive analysis, the political rights situation in the Hispanic countries of South America is approached first. The scope of these guarantees is then exposed to the non-national level in Brazil.
It shows, after, the particularities in the Mexican system of granting these rights. It also describes the possibility of enjoying these freedoms in Central America. Consideration is given to the European system of granting political rights to European foreigners. Finally, the limitations of the guarantees of participation in the decisions of non-nationals of third countries are discussed. The study, which is also analytical, descriptive and exploratory, found that all South American countries grant some kind of political freedom, unlike Central America and Mexico. It was also found that, in Europe, only European nationals have effective local activity, however in several countries, foreign residents of third countries
have political rights at the municipal level.

Raquel Ramos Machado, Lara Campos Arriaga

EL DERECHO A LA REAGRUPACIÓN FAMILIAR EN LA UNIÓN EUROPEA

Palabras clave:

Family reunification, European Union Law, Jurisprudence, Family Unit

Resumen

This paper analyzes family reunification in the EU, taking into account the doctrine of the Court of Justice of the European Union through the analysis of a judgment whose object of litigation is family reunification. As well as the Family Unit, specifically regarding the rupture of this as a consequence of emigration.

Nayiber Febles Pozo

EL ELEMENTO DE EXTRANJERÍA EN LA PLANIFICACIÓN SUCESORIA DE LAS FAMILIAS: un estudio de derecho internacional privado sobre la coordinación de la ley aplicable a los derechos del cónyuge viudo o pareja supérstite en la UE

Palabras clave:

Surviving spouse, Surviving partner, Applicable law

Resumen

This communication aims to analyse the problems of discoordination between applicable law to family and succession rights of surviving spouse or partner from the point of view of EU International Private Law. Firstly, we expose the Private International Law rules contained in current Regulations (EU) no. 650/2012, 2016/1103 and 2016/1104. Afterwards, we examine the chances of getting a coordination by means of jurisdictional authorities and, mostly, by the parties using the choice of applicable law. The conclusion is that the current Regulations does not solve efficiently the problem of discoordination, and due to that we also
propose several remedies concerning the direct and indirect adaptation
to solve the problem.

Antonio Jesús Calzado Llamas

Citizenship a durable solution for those born as refugees

Palabras clave:

Migration, Refugee, Citizenship

Resumen

An overview of the hardships faced by refugee children is presented. Granting citizenship for children born as refugees is proposed based on three lines of arguments: the meaning of citizenship and avoidance of statelessness, the child’s best interest, and the prevention of children in a protracted refugee situation. Within this framework, three recent initiatives to address refugee´s challenges are debated: the New York Declaration for Refugees and Migrants, the Global Compact, and the Model International Mobility Convention. Finally, three possible measures are suggested to implement citizenship for those born as refugees: An optional protocol on the Convention of the Rights of the Child, an optional protocol to the Convention Relating to the Status of Refugee, or else that States, while adopting the Model International Mobility Convention, expressly assure the right to citizenship for those born as refugees. The Latin-American States are prone to lead the call for a right to citizenship for those born as refugees since birthright citizenship is adopted by nearly every State in Latin-America.

Lutiana Valadares Fernandes Barbosa

A PROTEÇÃO INTERNACIONAL DOS REFUGIADOS NOS SISTEMAS INTERAMERICANO E EUROPEU DE DIREITOS HUMANOS

Palabras clave:

Refugees, Principle of non-return, International Refugee Law, Inter-American Human Rights System, European Human Rights System

Resumen

This article aims to present how the international protection of refugees and asylum seekers occurs in the Inter-American and European Human Rights Systems, based on the similarities and differences in relation to the refugee concept and the scope of the principle of non-refoulement. Thus, an analysis is carried out through comparative methodology of the international jurisprudence of the Inter-American Commission and Court of Human Rights and the European Court of Human Rights, in particular on the return of refugees. Therefore, the article seeks to understand the analysis of both international systems on the
subject in their judgments of concrete cases on human rights violations of refugees and asylum seekers, verifying the challenges for the human rights guarantees of refugees in the European and American contexts. In this sense, the European Human Rights System has a more extensive and vast jurisprudence related to refugees, however the Inter-American Human Rights System presents more protective and advanced standards and tendencies on migrants and refugees.

Vitória Westin Barros

ANÁLISE COMPARADA ENTRE A AFERIÇÃO DE IDADE DE JOVENS REFUGIADOS NA UNIÃO EUROPEIA E NO BRASIL

Palabras clave:

Refugees, Young Migrants, European Union

Resumen

This scientific article aims to study the methods used by the European Union to measure the age of unaccompanied and undocumented young migrants. Therefore, a qualitative bibliographic research and descriptive method will be used. Preliminarily, it investigates what are the advantages of being considered a minor, that is, the legal regime of special protection for children and adolescents, which grants them rights and greater assistance. It appears that, in the European Union, the greatest advantage of being considered a minor is the exception to the
Dublin System, which, in theory, allows a child not to be bound by the processing of their asylum application in the first European country they entered. Afterwards, it analyses the Directive n. 32/2013 of the European Union, which allows the use of medical methods for age assessment, but does not determine which can be used, leaving a wide margin for European countries, which do not have standardization on the subject: for example, the Constitutional Council of France amends skeletal bone to such, while there are countries using only non-medical methods such as social assessments. A holistic or multidisciplinary analysis is suggested as a possible solution, in the same sense as the recommendations issued by the Council of Europe. Finally, we investigate if such parameters can be taken to Brazil, which is facing an intensification of migrations from Venezuela, composed of large numbers of unaccompanied and undocumented minors. It is concluded that, so far, the Brazilian legal system has been more beneficial to minors, as it provides the presumption of minors, contrary to what happens in the European Union, which practices the use of medical methods of age measurement.

Aline Memória de Andrade

Artículos

O PACTO ECOLÓGICO EUROPEU E SEUS EFEITOS SOBRE A COMUNIDADE INTERNACIONAL

Palabras clave:

EUROPEAN GREEN DEAL; INTERNATIONAL RELATIONS; EFFECTS.

Resumen

This article conducts a study of the European Green Deal by an exploratory and documental research of the issue, the provisions in the bloc’s founding treaties, and official documents, assessing its objectives and unveiling its bases to indicate some possible effects of the Pact in international relations. Inserted in the context of the fight against climate change and considered as a European strategy for the green reboot of the economy, it is discussed how this policy can influence the
adoption of similar behaviors by other international actors. The presence of environmental concerns in the legal structure of the European Union is analyzed, as well as the centrality of sustainable development for the bloc. Starting from the advancement of the proposals around the concept of sustainable development at a multilateral level, it is observed the
implementation of measures that aim at achieving such development, much because of the climate emergency. From this point of view, by seeking to analyze the possible repercussions and effects of the European Union’s measure, the European Green Deal also serves as a tool to study the influence of the European block over other regions and states. The focus of this article is on what kind of influence the European Union can exert from the European Green Deal, rather than on how this influence
occurs. Lastly, the situation of Brazil and the Free Trade Agreement between Mercosur and the European Union in the face of the European quest for climate neutrality is addressed. The prospective conclusions of this work are of a possible strengthening of the normative role of the European Union by both its position of advances in the theme of sustainable development, as well as the deliberate role of guiding its external relations and internal policies by this principle. To this are added considerations
about Brazil’s position and an overview of international relations via Mercosur-European Union and multilateral relationships.

Marcelo Terra Bento Martinelli

THE 2014 AND 2019 EUROPEAN PARLIAMENT ELECTIONS: the growth of the eurosectic right and opposition voting in second-order elections

Palabras clave:

European Parliament, second-order elections, Eurosceptic right-wing parties

Resumen

Elections to the European Parliament (EP) are considered by several authors as second-order elections. This is due to the low voter turnout, the better performance of opposition and/or radical parties compared to first-order national elections, the dynamics of “opposition voting” and “sincere voting”, among other aspects. The growth of Eurosceptic parties in the 2014 elections, especially on the right side of the political spectrum, as well as the increase in the turnout in the 2019 elections, brought this discussion back to the fore, in which certain authors reaffirm the persistence of this second-order character, while others relativize it. Based on a literature review focused on the EP case, this paper aims, firstly, to present this debate, identifying different explanations for the rise of the Eurosceptic right in 2014 and for the increase in turnout in 2019, correlating this debate with readings on Euroscepticism and far right. Secondly, it was verified whether the logic of the opposition vote, one of the main assumptions of the theory, was present in the 2014 and 2019 elections regarding the right-wing Eurosceptic parties. It was found that, among the 56 cases analysed in the two elections, 26 fit the dynamics predicted by the opposition vote, while another nine cases also fit the dynamics predicted by other assumptions of the theory. It is noteworthy that some right-wing Eurosceptic parties, especially the more
radical ones, tend to be small and/or opposition parties, which usually perform better in second-order elections.

Victor Matheus de Santana Santos