Vol. 4 No. 1 (2024): Latin American Journal of European Studies

PUBLISHED: 2024-25-06

The Latin American Journal of European Studies (ISSN 2763-8685) is a publication of the Latin American Center of European Studies, currently supported by the Jean Monnet Network Policy Debate “BRIDGE Watch” project with funding from the Erasmus + Programme 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 seventh edition of the Journal also has a thematic dossier on “Rule of Law in Latin America and Europe” organized by Aline Beltrame de Moura of the Universidade Federal de Santa Catarina (Brazil). The seventh edition of the Journal is open for submissions until May 1st, 2024.

Full Issue

Editorial

Aline Beltrame de Moura , Naiara Posenato

Editorial

Abstract

Dossier

THE DIFFICULT APPLICATION OF ARTICLE 7 OF THE TEU: European Union and Rule of Law

Keywords:

Article 7 TEU; Rule of Law; conditionality.

Abstract

The paper seeks to explain the instruments that the European Union has to ensure that fundamental European values, including the idea of “rule of law”, are respected by Member States. It is concluded that the instruments provided for in Article 7 of the TEU are difficult to apply, which have been replaced by conditionality mechanisms which, however, have been challenged in court by some Member States.

Nuno Cunha Rodrigues

RECOGNITION OF VICTIMS OF FORCED DISPLACEMENT IN LAW 1448 OF 2011: REVICTIMIZATION AND INVISIBILIZATION PROCESSES IN THE BANANA ZONE

Keywords:

Forced displacement; Land restitution; Law 1448 of 2011.

Abstract

Territorial struggles in Colombia have been at the very core of the armed conflict, which has made this the country with the greatest displacement in the world. As a result of its multiple effects, as a product of the Peace Agreements, the national government of that time created the Victims and Land Restitution Law (1448 of 2011). However, its temporal delimitation excludes a large number of victims who lost their properties before the 1st. January 1991, during the 1980s when the conflict in the country deepened. In this sense, this article seeks to investigate the scope and challenges of the implementation of this Law in the Banana Zone, a municipality widely affected by dynamics of exploitation of natural resources, drug trafficking and paramilitarism, which, moreover, has a population majority Afro-Colombian, an aspect that requires the application of a differential approach.

Yeraldin Vásquez Polanco

THE IMPACT OF THE RECENT CASE LAW OF CJEU REGARDING ARTICLE 2 TEU ON NATIONAL CONSTITUTIONAL VALUES IN ROMANIA

Keywords:

Supremacy of European Union law; Constitutional identity; Court of Justice of the European Union.

Abstract

In recent years, the Constitutional Court of Romania has tried to create an internal wall for not giving effect to the application of the supremacy of European Union law, respectively the judgments of the Court of Justice of the European Union regarding the rule of law, as regards the Constitution itself, by developing an ultra vires control and an identity control in an original way. Although the pressure to change such an approach is omnipresent, however, the reasons of Decision no. 390/2021 have not been revised until today by the subsequent case law of the Constitutional Court of Romania, but on the contrary, in two press releases, the idea of revising the Constitution for accepting the effects of the relevant case law of the Court of Justice of the European Union in the matter was launched exclusively. However, a series of somehow sovereignist decisions, also including here the interpretation in its own, extensive manner, of an opinion of the Venice Commission, seems rather on the way to be abandoned, an example in this regard being the recent Decision no. 283/2023, by which the Constitutional Court of Romania restated the need to impose a threshold in the case of the offence of abuse of office.

Dragoș Călin

THE ROLE OF THE PERMANENT REVIEW TRIBUNAL IN STRENGTHENING DEMOCRATIC GOVERNANCE AND THE RULE OF LAW

Keywords:

Rule of Law; Democratic Governance; MERCOSUR.

Abstract

This paper examines the function of the Permanente Review Tribunal “TPR” as a possible actor for the consolidation of democratic governance and the democratic state. In this sense, the question that will be the axis of analysis of this work is posed in the following terms: Does the TPR have any function aimed at guaranteeing democratic governance and the democratic state in the States that make up this integration process? As can be seen, this study is based on a systemic vision where the Supreme Court of Mercosur could be in a feedback relationship with the internal legal systems of the States parties that comprise it. The Work is organized as follows: (i) firstly, some guidelines are made on the central notions used in this work (democratic governance, rule of law and democratic state) (ii) secondly, we will make a general exposition on the essential elements that make up the so-called broad democratic dimension and the Ushuaia Protocol (PU) on democratic commitment in MERCOSUR, (iii) Next we will address the question of the role of jurisdiction in the integration processes in general and in MERCOSUR , in particular, focusing attention on the work carried out by the TPR, (iv) finally, an Award issued by the TPR will be brought to consideration that may leave some clues to answer the question posed. The method used in this research is essentially analytical.

Brenda Luciana Maffei

THE SUPREME THEATRE: HOW INDIVIDUALISM AND THE EXTREME PUBLICITY ARE UNDERMINING THE DECISION-MAKING PROCESS OF THE SUPREMO TRIBUNAL FEDERAL

Keywords:

Supremo Tribunal Federal; decision-making process; constitutional justice.

Abstract

With the enactment of the 1988 Brazilian Federal Constitution, the Brazilian constitutional system witnessed a great expansion of the powers of the Judiciary, along with a considerable growth of the influence of the Supremo Tribunal Federal (STF) in the everyday life. Not only were such changes brought by crucial reforms, but also by the change of the social-political context. Such a context, characterized by the desire of re-democratization of the Country, led to a gradual opening of the Tribunal to the society. So far, one of the major connection tools between the Court and the public opinion has been the peculiar decision-making process of the STF. If on the one hand such process seems to have favoured transparency and participation of the society to the life of the Tribunal, on the other hand it has created not few concerns, namely with regard the high individualism and the extreme publicity that both govern the decision-making process. Indeed, the objective of the present work is to inquire the extent to which these issues affect the current decisional process of the Supremo, also with the aim to find how further negative consequences might be overcame. The research adopts an in-depth qualitative analysis of the relevant doctrine on the issues, with a small comparative glimpse on other constitutional experiences. The paper suggests the urgent need to reform the current mechanism of deliberation of the Supremo Tribunal Federal, with the aim of reducing the abovementioned disproportionate individualism and excessive transparency.

Francesco Saccoliti, João Paulo de Moura Gonet Branco

SOCIAL DEATH: The Impact of the Deprivation of Voting Rights on Incarcerated Populations

Keywords:

Incarcerated people; Right to vote; Political rights.

Abstract

This descriptive article aims to analyze the effects of restricting the right to vote for people deprived of their liberty, already socially excluded and stigmatized due to their condition, in denying the individual’s exercise of citizenship, resulting in an increase in crime. In the first chapter, through the hypothetical-deductive methodology, based on a systematic bibliographical review of primary and secondary sources, the paper gathers and analyzes the literature and existing legislation about political rights of prisoners in the Brazilian context and their restriction hypotheses. In the following topic, in addition to the aforementioned methodology, data were presented on the scenario of the Brazilian prison system, using quantitative empirical research, with secondary sources, to elucidate the scenario of mass incarceration and outline hypotheses, as well as statements about the logic of the punitive system and the growth of criminal factions. Finally, in the last chapter, through the hypothetical-deductive methodology of bibliographic review, the need for state action was highlighted, using public policies, to comply with the dictates contained in the 1988 Federal Constitution, expanding the citizenship of prisoners through voting, promoting social inclusion.

Clara Duarte Fernandes, Juliana Coelho Lima Gac

THE SOVEREIGNTY OF STATES OVER NATURAL RESOURCES AND THE RIGHT OF INDIGENOUS PEOPLES TO SELF-DETERMINATION FROM THE INTERNATIONAL HUMAN RIGHTS LAW

Keywords:

Principle of sovereignty of States over natural resources; Right of indigenous peoples to self-determination; International Law of human rights.

Abstract

This paper focuses on the analysis of the principle of State sovereignty over natural resources (PSNR) from the perspective of International Human Rights Law. The United Nations Declaration and the American Declaration on the Rights of Indigenous Peoples, which recognize their right to self-determination and the right to collective property, raise the hypothesis about the extension of the PSNR towards the recognition of the rights of indigenous peoples to exercise jurisdiction over their ancestral lands and territories. A documentary study of the origin and development of the PSNR has been carried out in relation to the right of self-determination of peoples and it is concluded that in a non-colonial context, indigenous peoples are holders of that right and that the right to their territories, to Land and natural resources are elements of the PSNR, which is the basis of its political and economic autonomy. The failure of States to respect and guarantee these rights promotes the risk of secession.

Ena Carnero Arroyo

Articles

PROJECT ARCHETYPES OF THE EUROPEAN RESEARCH AREA: EXPLORING THE OCCASIONAL ENGAGEMENT PATTERNS OF THE EUROPEAN SOUTHERN NEIGHBOURHOOD

Keywords:

Relational turn; European Southern Neighbourhood; European Research Area.

Abstract

This paper examines the project-based pattern of European Southern Neighbourhood engagement in the European Research Area. Thereby, this study informs about the role of the European Research Area in advancing EU objectives and ambitions in the enduringly salient European Neighbourhood Policy context. The research question that drives this study is: What project archetypes’ pattern denotes the European Southern Neighbourhood’s participation in the pan-European space intended to facilitate the free flow of talent and ideas? The guiding hypothesis anticipates that the prevailing archetype corresponds to an encounter lasting for one project, and prolonged engagement throughout several consecutive projects is a rarity. This enquiry into the relationality weaved by research collaboration formulates four archetypes. The main empirical material employed to model and study the four archetypes is semi-structured interviews with Europe-based project managers. Insights offered by the leading figures of projects funded by Framework Programme 7 and Horizon 2020 reveal how multilateral research-driven ties contribute to post-Westphalian external action aspirations. Devised analytic narratives attest to the performances of the EU science diplomacy, for example, in the form of technoscientific gifts as well as sharing and jointly developing kn/own/ables. Expert experiences of co-developing research-intensive solutions with Morocco- and Tunisia-based colleagues to address the most pressing challenges faced by the EU and its Southern neighbours are resourceful. They offer new insights into the patterned routines that support the implementation of such supranationally steered governance frameworks as the European Research Area, including its external action and science diplomacy dimensions. Almost half of the studied projects correspond to the archetype with one EU-funded project interaction. This confirms the rather sporadic or ad hoc relational ties of the European Southern Neighbourhood to the European Research Area, facilitated by various Europe-based competence centres.

Zane Šime

STUDY OF THE ADVISORY OPINION OF THE INTERNATIONAL COURT OF THE LAW OF THE SEA REQUESTED BY THE COMMISSION OF SMALL ISLAND STATES ON CLIMATE CHANGE AND INTERNATIONAL LAW

Keywords:

Advisory Opinion; International Tribunal for the Law of the Sea; Commission of Small Island States.

Abstract

On May 21, 2024, the International Tribunal for the Law of the Sea issued its advisory opinion in the context of the issues submitted for opinion by the Commission of Small Island States on climate change and international law; This opinion constitutes a foundational reference for international law regarding the obligations of States in environmental matters and the fight against Climate Change in the seas and oceans. This study analyzes several elements that arise from the ruling, such as the jurisdiction of the Court; the applicability of various international law instruments beyond those on climate change; and, the establishment of marine protected areas as an ideal tool for the fight against Climate Change in accordance with international treaties on the Law of the Sea and Environmental Matters.

Danilo Garcia Caceres

Interview

ACCESS TO PUBLIC INFORMATION IN THE AMERICAS: Interview with Dante M. Negro Alvarado / Director of the Department of International Law of the Organization of American States (OAS) and Technical Secretary of the Inter-American Juridical Committee

Abstract

Interview with Dante M. Negro Alvarado – Director of the Department of International Law of the Organization of American States (OAS) and Technical Secretary of the Inter-American Juridical Committee.

Naiara Posenato