University of Bologna Law Review

Rights‐Based Boundaries Of The United Nations’ Sanctions

Mohsen Rowhani — 2023-08-11

The article examines sanctions imposed by the United Nations (U.N.), the most critical sender of multilateral sanctions, by categorising them as embargoes against states and their main sectors, as well as targeted sanctions against individuals and micro entities. The U.N. Charter serves as the foundation for determining the boundaries of U.N. embargoes. Accordingly, the Security Council is bound by the U.N. Charter’s Preamble and Articles as the only international treaty that can control its actions. Furthermore, based on the Charter’s proportionality principle, the Security Council must balance subjective wrongdoings and the consequences of sanctions. The article then evaluates flaws in the designation, implementation, judicial reviews, and targets substantive and procedural human rights in order to determine how U.N. targeted sanctions should be formed to become rights-based. The central issue of due process is addressed by examining certain recorded rights-based challenges in the process of domestic implementation of sanctions that are reviewed by international courts in order to demonstrate that the Security Council’s targeted sanctions require reconsideration as well as their own independent judicial review.

New Generation Free Trade Agreements at a Crossroads. Assessing Environmental Enforcement of the E.U.’s Trade and Sustainable Development Chapters from Global Europe to the Power of Trade Partnerships Communication

Virginia Remondino — 2023-09-18

Since the dawn of the era inaugurated by the 2006 Global Europe communication, the European Union (E.U.) has emerged as a key international actor in the negotiation and conclusion of ambitious New Generation Free Trade Agreements (N.G.F.T.A.s), striking to counterbalance commercial liberalization also with the enhancement of environmental safeguard. Interestingly, the latter represents for the Union not merely a policy goal, but a core normative target embedded in the founding treaties. A rationale which has thus been transposed to N.G.F.T.A.s by means of ad hoc Trade and Sustainable Development (T.S.D.) Chapters - including given green clauses dedicated to a vast array of eco-related domains. Nonetheless, ambiguities continue to subsist with regard to the enforcement phase of the present Chapters, having been at the center of an intense debate. Against the illustrated backdrop, this article is to focus on the major deficiencies characterizing green clauses’ enforceability both from an upstream and a downstream perspective. First, the identified pillar environmental provisions will be assessed in their semantic formulation. Secondly, attention will be paid to the specialis, non-confrontational, approach to dispute settlement provided for by T.S.D. Chapters, disregarding reliance on countermeasures in the case of non-compliance. In order to introduce innovative inputs to the research, relevance is to be conferred to the E.U. political guidelines for T.S.D. Chapters announced by the June 2022 Power of Trade Partnerships communication. Whereas it will be ultimately demonstrated that the latter document has managed to open the door to a novel season for N.G.F.T.A.s’ environmental enforcement. It is believed that further room for normative clarification seems to be appropriate.

Judicial Trajectories in the Recognition of Environmental Migrants

Giulia Dal Ben — 2023-09-18

This article aims to trace the recent judicial trajectories in the promotion and recognition of environmental migration. It will first show the general background in which the phenomenon is placed, thus underlying its main characteristics and problems. Subsequently, it will offer an overview of some noteworthy examples of the so-called “climate change litigation”. Indeed, notwithstanding the lack of binding instruments and the inapplicability or inadequacy of the existing legal instruments for the protection of environmental migrants, noteworthy examples of increasing awareness about the relationship between environmental degradation and human rights can be found in several cases decided by international human rights judicial or quasi-judicial bodies. In particular, two recent decisions of the United Nations Human Rights Committee (U.N.H.R.C.) will be assessed. The article will also assess the increasing sensibility of the European Court of Human Rights (E.Ct.H.R.) in deciding environmental cases through a human-rights-based approach. By moving from the supranational context to the national one, the paper will focus on two recent decisions adopted by the French Bordeaux Administrative Court and the Italian Court of Cassation. Indeed, they both represent relevant examples of the role played by national courts in broadening the interpretation and application of the existing instruments of protection for environmental migrants. The analysis of the mentioned decisions will then be framed in the wider context of the legal order of the European Union (E.U.), highlighting how E.U. instruments of secondary law at disposal do not appear adequate for guaranteeing a sort of protection for environmental migrants.

The Root Causes of Human Trafficking: A Critical Analysis of the Contemporary Approaches to Human Trafficking

Lewis Njabulo Sibanda — 2023-09-18

Contemporary anti-trafficking approaches reflect a reluctance to address the root causes (structural issues) of the human trafficking problem. The article critically analyses the three dominant approaches to combating human trafficking-criminalisation approach, the human-rights based approach and the celebrity humanitarianism approach-and unpacks the political choices inherent in each one of them. It is argued that common to all three approaches is the depoliticisation of the human trafficking problem through conceptualising it as an instance of individual criminals that act outside the boundaries of a liberal society, which is characterised by individual freedom and equality. By so doing, these approaches depoliticise the issue of human trafficking by not viewing the problem as one that emanates from the global political economy. They overlook and perpetuate the inequality and oppression that is inherent in capitalism. Against this background, the article unpacks the various ways that the law, particularly through criminalisation and the international human rights framework, works to insulate and reinforce the systemic injustices at the centre of the trafficking problem. Effectively the current anti-trafficking approaches only serve to produce and excuse violations rather than remedy them. It is argued that to be effective anti-trafficking approaches must focus on the initiating phenomena (the structural issues) that make people vulnerable to trafficking related exploitation.

Let the Digital Euro Circulate: Introducing a Retail C.B.D.C. in the Eurozone With Unlimited Holdings by Users

Mark Warren — 2023-05-08

The European Central Bank (E.C.B.) anticipates including a holding limit of about e3,000 per user within the design of its potential retail central bank digital currency for the Eurozone, the digital euro. This is principally motivated by concerns regarding compliance with regulations related to anti-money laundering and countering the financing of terrorism and the disintermediation of banks as credit intermediaries. This paper argues that these concerns are unwarranted, and, in any case, the holding limit would not be an effective solution to these concerns. The digital euro could be introduced with unlimited holdings by individual users in conformity with E.U. law and while maintaining banks as credit intermediaries in the Eurozone financial system.

An Overview on the Scope of the Digital Markets Act: Fair Practices Versus Ex‐Ante Competition Law

Gheorghe-Sorin Lodoabă — 2023-06-05

The proposed Digital Markets Act has been under severe scrutiny in the past couple of years. While it received mostly positive feedback, there were numerous authors and scholars arguing that the new legislation does not provide anything useful or new. The common denominator of most of the analyses is that the Digital Markets Act is an ex-ante antitrust legislation and that the obligations tackle the (abusive) dominance of the gatekeepers to be designated. In this article, I try to deconstruct the requirements for determining whether an undertaking is a gatekeeper and to assess whether the proposal fits into a regulatory compliance type of legislation or ex-ante competition law. In addition to the analytical approach, I will take the example of the Intel and Microsoft cases and the intricacies that arose from them. I will further assess possible implications that the proposal might have for innovation and other aspects of the market.

The Limits Imposed by Union Law on the Design of Fiscal Instruments Intended to Protect the Environment

Mark Soler — 2023-06-23

Since the Treaty of Rome, the protection of local producers by Member States is, in principle, prohibited. Indeed, the Court of Justice of the European Union has, throughout the decades, done its utmost to ensure that the Treaty provisions on the free movement of goods and services serve the goal of greater European integration. While reading these judgments, it is very easy to overlook the fact that taxation was at their core. Indeed, throughout the 1960s and 1970s, numerous taxes on imports and exports became the object of the Court’s most foundational cases, and current legal literature still praises their unifying effect. Seventy years later, Europe, like the rest of the world, must face up to two unprecedented global crises: the collapse of biodiversity on the one hand, and climate change on the other. The recent alarming reports regarding climate change and biodiversity loss mean that, from now onwards, the Union and its Member States must deploy all measures conceivable to reach the objectives set out in international agreements such as the Paris Agreement on Climate Change, the Glasgow Climate Pact and the latest Kunming-Montreal Global Biodiversity Framework. The object of this paper is to analyze which fiscal measures Member States and the Union may adopt to prevent further damage from being done to the environment. Damage which some would say has been primarily caused by failures in the market which the Court of Justice set out to create during the first two decades following the Union’s inception. In this context, the author identifies all the legal constraints which Union law imposes on the design of environmental taxes at national level, together with the constraints which primary law places upon the potential conception of a European-wide environmental tax. The paper opens with a general discussion of the theoretical foundations of environmental taxes. It demonstrates that there exists, at least in theory, an elementary understanding of the essential functions which environmental taxes should possess. It then goes on to discuss the avenues open at the European level for the institutions to act in the fiscal field by adopting Europe-wide environmental taxes. Although the Union seems badly equipped to introduce a general tax on activities which are environmentally harmful, its efforts in matters of indirect taxation merit both praise and critical discussion. In the second part of the paper, the author discusses the principal provisions of Union law which guide Member States in their adoption of environmental taxes. Finally, the author demonstrates that the actual state of Union law does, indeed, permit the utilization of environmental taxes to shift economic demand in favor of environmentally friendly goods. Although Member States continue to enjoy a large margin of appreciation in the field of taxation, the author still believes that a more comprehensive response to the current environmental crisis should ideally originate from the institutions - even if part of it means creating a European-wide environmental tax.