sábado, 30 de abril de 2016

DIREITO INTERNACIONAL PRIVADO - 2016.1 - ATIVIDADE

Universidade Estadual do Maranhão - UEMA
Curso de Direito
Direito Internacional Privado - 2016.1

Caros alunos, no intuito de aferir sua participação e construir a nossa segunda avaliação, peço a vocês que se dividam em  5 equipes. Cada equipe deve procurar as três decisões mais recentes envolvendo os incisos dos artigos 88 e 89 do  Código de Processo Civil de 1973 e identificar mudanças no modo de decidir consideradas as disposições do atual CPC.

Obs. Não se contentem com as ementas, leiam os votos.

Orientações:
a) Identifiquem os membros da equipe no início do comentário;
b) Escrevam de 200 a 500 palavras;
c) Identifiquem as referências utilizadas;
e) Enviem até 8 de maio.

Respondam como comentários à essa postagem.

A página de pesquisa é essa: <http://www.stj.jus.br/SCON/>.



HERMENÊUTICA JURÍDICA - 2016.1 - ATIVIDADE

Universidade Estadual do Maranhão - UEMA
Curso de Direito
Hermenêutica Jurídica - 2016.1

Caros alunos, no intuito de aferir sua participação e construir a nossa segunda avaliação, peço a vocês que se dividam em equipes de 4 a 6 integrantes e que cada uma delas realize a seguinte tarefa:

Levando em conta:
- a identificação construída por Larry Alexander entre originalismo e positivismo;
- as observações de Dworking e sua concepção de direito como integridade;
- a noção de construção do direito e teleologia apresentadas por Carlos Maximiliano há quase 100 anos.

Distinga e posicione-se quanto à admissibilidade e quanto ao mérito da denúncia apresentada junto à Comissão de Ética da Câmara dos Deputados contra o Deputado Jair Bolsonaro pela prática de apologia à tortura.

Orientações:
a) Identifiquem os membros da equipe no início do comentário;
b) Escrevam de 200 a 500 palavras;
c) Identifiquem as referências utilizadas na construção de seu parecer;
e) Enviem até 8 de maio.

Respondam como comentários à essa postagem.



DIREITO INTERNACIONAL PÚBLICO 2016.1 - ATIVIDADE

Universidade Estadual do Maranhão - UEMA
Curso de Direito
Direito Internacional Público - 2016.1

Caros alunos, no intuito de aferir sua participação e construir a nossa segunda avaliação, peço a vocês que se dividam em 5 equipes e que cada uma delas realize a seguinte tarefa:

Levando em conta:
- a distinção entre reconhecimento de Estado e reconhecimento de governo;
- os diferentes postulados das doutrinas Tobar e Estrada;
- o desenvolvimento das cláusulas democráticas no direito internacional, especialmente na América;

Posicione-se quanto a aplicabilidade do instituto do reconhecimento de governo em seus aspectos formal e material na hipótese de aprovação do afastamento por até seis meses da atual governante do Brasil.

Orientações:
a) Identifiquem os membros da equipe no início do comentário;
b) Escrevam de 200 a 500 palavras;
c) Identifiquem as referências utilizadas na construção de seu parecer;
e) Enviem até 8 de maio.

quarta-feira, 27 de abril de 2016

Desenvolvimento do direito internacional na concepção de Cornelius van Bynkershoek



Paulo Borba Casella

Revista da Faculdade de Direito da Universidade de São Paulo

Resumo
Cornelius van Bynkershoek (1673-1743) se inscreve como marco no desenvolvimento do Direito Internacional, dentre os autores mais relevantes, do século XVIII. Este internacionalista foi importante pelo foco pragmático dado à prática dos estados, como elemento determinante da formação e da consolidação de normas internacionais, mas curiosamente muito menos freqüentemente citado que outros internacionalistas. Este artigo analisa a especificidade e a atualidade da contribuição de Bynkershoek e aponta o seu lugar, ao lado de Grócio, e dos precursores da disciplina.

Disponível em: <http://www.revistas.usp.br/rfdusp/article/view/67819>. Acesso em: 26 abr. 2016.


quarta-feira, 20 de abril de 2016

Interpretive Divergence

Neha Jain
University of Minnesota - Twin Cities - School of Law

February 27, 2016

Virginia Journal of International Law, Forthcoming

Abstract:
Should principles of legal interpretation differ according to the nature or purpose of a legal instrument? In the domestic context, most discussions of interpretation proceed on the assumption that for each type of legal instrument – such as constitutions, statutes, contracts, and wills – there is a different set of interpretive rules, standards, and canons. In international law, interpretive principles for its most high-profile legal instrument, the international treaty, conventionally advocate a uniform approach to construction: regardless of the form, character, and subject matter of the treaty, interpretation should be treaty-blind. This Article challenges this long-standing view and argues that in light of the complex and multi-faceted character of the modern treaty, international courts and scholars should embrace a divergent approach to treaty interpretation. The Article illustrates the pitfalls of the stubborn adherence to and invocation of the uniform approach through an analysis of its application by international criminal courts. International criminal law treaties such as the Rome Statute of the International Criminal Court are hybrid entities that are simultaneously a criminal code, a compact between states committed to anti-impunity, and a human rights instrument. Drawing on the domestic analogy, the Article posits that with the fragmentation of international law and the proliferation in specialized treaty regimes, each with their own adjudicative institutions, the treaty is best conceived as a short-hand legal device for instruments that can be as varied as contracts, constitutions, and statutes. Going even further, the constituent parts of a single treaty may perform vastly different functions and cement different kinds of legal relationships between multiple entities. The uniform approach to interpretation fails to do justice to this varied character of treaty devices. The Article highlights the promise of a divergent approach to treaty interpretation by exposing the real world consequences of adopting different interpretive methodologies for the constituent parts of modern treaties such as the Rome Statute. It distinguishes between the statutory, contractual, human rights oriented, and institutional provisions of the Rome Statute and demonstrates the results that follow from the application of a richer interpretive framework to the construction of the modern international treaty.

Number of Pages in PDF File: 51

Disponível em: <http://ssrn.com/abstract=2755790>. Acesso em 16 abr. 2016.

segunda-feira, 18 de abril de 2016

Report on ERA conference on Recent case law of the ECtHRs in Family law matters

by Thalia Kruger on April 5, 2016

Guest post by Asma Alouane, PhD candidate at Panthéon-Assas (Paris II) University on Private international law to the test of the right to respect for private and family life.
On February 11 and 12 2016, the Academy of European law (ERA) hosted in Strasburg a conference on Recent Case law of the European Court of Human Rights in Family law matters. The Court’s evolutive interpretation of the notion of family life combined with its controversial understanding has created a long series of new challenges in the field of Family law. The conference participants discussed these issues, as well as the difficulties that States may face in complying with their obligations under the Convention.
The purpose of this post is to give a succinct overview of the presentations, which were of interest from a conflicts-of-law perspective.

Evgueni Boev, Setting the scene: Private and family life under the Convention
Setting the scene of the conference, Evgueni Boev’s presentation provided an answer to the question of What is a family according to Court Cases? Whereas the term family is mentioned in several provisions (art 8, art 12, art 5 of Protocol 7…), most of the cases are examined under the concept of family life of art 8. Article 12 and Protocol 7’s article 5 appear as the lex specialis regarding marriage and equality within a married couple. Thus, article 8 is the pillar of the case law of the Court regarding family matters.
From the broad perspective of the ECtHR cases, Boev demonstrated that the concept has expanded in two different directions: in a horizontal way between partners and in a vertical way between parent and child. In both directions, only the substantive reality matters. For instance, in the relationship between partners, family life exists regardless of whether there is legal recognition of the situation (e.g. Abdulaziz, Cabales and Balkandali v. the United Kingdom). The extension of the concept of family life to same-sex de facto couples in the Schalk and Kopf v. Austria case is another illustration of the broad scope of the family life. In the other direction, between parent and child, what matters most is not the biological link and in these cases too the Court emphasises the substantive relationship (e.g. Nazarenko v. Russia).
Thus, only the substantive situation is relevant. However, the recognition of family life does not necessarily lead to a right to respect such family life. The questions of whether there is an interference with or a failure to comply with art 8 obligations are linked to the particular circumstances of the case, especially through the proportionality test.
As pointed out by Boev, the broad understanding of what is a family gives rise to new trends regarding for instance the recognition of non-traditional forms of family life or the international dimension of family ties, especially as in matters of child care. The following presentations focused on these two broad topics.

Thalia Kruger, International Child Abduction
Thalia Kruger showed in her presentation how the goals of the international child abduction instruments are disturbed when put to the test of the human rights perspective. Following the assumption that it is in the interest of the child not to be abducted, the 1980 Hague Child Abduction Convention and the Brussels II bis Regulation (No. 2201/2003) aim to facilitate the return of the child to his or her habitual residence. A return order must be issued within a period of six weeks. Only exceptional circumstances allow the State of the retention of the child not to order the return. Moreover, article 11 of Brussels II bis permits a second chance procedure to obtain return. Looking at the situation from the perspective of human rights, the Court considered that national authorities have to look into the particular situation of the child (see Neulinger v. Switzerland). Thus, the Court makes the best interests of the child the leading principle. The Court shifts from an in abstracto conception of the best interests of the child to an in concreto appreciation. Even though the Court explained later that it is possible to read the Hague Convention and the ECHR as aligned (X. v. Latvia), Kruger noted that the ECHR cases create sensitive dilemmas for the contracting States, for instance how to comply with the speedy proceeding obligation while taking into account all issues raised with respect to the best interests of the child.
According to Kruger, the Court’s interpretation also shows that the Brussels II bis enforcement rules may not be compatible with the best interests of the child.
The Bosphorus doctrine assumes compatibility of EU law with the ECHRs, but this applies only when courts have no discretionary power (for instance the abolition of exequatur; see Povse v. Austria). The application of the Bosphorus doctrine in the current context is problematic. Kruger concluded by noting that the on-going recast of Brussels II bis and the continuing efforts of the Hague Conference, such as its promotion of mediation, may provide a way to ensure the compatibility of the child abduction goals and the human rights standard.

Marilisa D’Amico and Costanza Nardocci, LGBT rights and the way forward:
From the perspective of the Oliari v. Italy case and the specific Italian experience, Costanza Nardocci presented an overview of the LGBT family rights. The last step in a long series of cases, Oliari illustrates the long path of same-sex couples before the ECtHR. A significant step was accomplished in 2010 with Schalk and Kopf v. Austria, when the Court recognized that same-sex couples are just as capable of enjoying family life as opposite-sex couples. The Court found that article 12 could be applicable to same-sex couples, but that at this stage the question of whether same-sex couples can marry is left to regulation by national law. However, referring to the large margin of appreciation of contracting States, it considered that there is no positive obligation to introduce same-sex marriage. Then, in 2013, embracing this new interpretation, the Court considered in Vallianatos and Others v. Greece that opening civil unions to opposite-sex couples only was a violation of articles 8 and 14. In the Oliari case, the Court held that there was a violation of article 8. It considered that Italy had violated its positive obligation to grant legal protection to same-sex couples. Recalling the specific situation of LGBT rights in Italy, Nardocci emphasized the contrast between the lack of legislative activity and the judicial and administrative activism for the recognition of same-sex couples, if only in a symbolic way. Thus, the condemnation of the Italian government in the Oliari case was not unexpected considering the previous warnings of by the Constitutional Court, which had urged the legislator to intervene. Although Oliari is specific to the Italian situation, it has to be considered an important step for same-sex couples in their pursuit of legal recognition. In other words, since the Oliari case the contracting States are now compelled to ensure a core legal protection for same-sex couples in a stable committed relationship.
However, as pointed out by Nardocci, the progress of same-sex couples’ right to family life has not gone hand in hand with similar advances for transgender persons. Even though the recognition of a positive obligation to provide legal protection is a huge step forward compared to past cases, the absence of a positive obligation to enact same-sex marriages could adversely affect transgender persons’ right to family life. As in Hämäläinen v/ Finland, transgender individuals still have to choose between their former marital life and the legal recognition of the new gender. Nardocci considered that a better use of the distinguishing technique between positive and negative obligations could provide more flexibility and lead to better protection of transgender persons.

Michael Wells-Greco, Spectrum of Reproductive Rights and the Challenges
Reproductive rights are one of the most sensitive and challenging topics the Court has had to deal with. The increasing use of medical technology in Europe has led to the emergence of a discussion as to their influence on reproductive choices The spectrum of reproductive rights is wide: it encompasses such issues as abortion (A.B. C; v. Ireland), home birth (Ternovszky v. Hungray; Dubskà and Krejzovà v. Czech Republic), embryo donation for scientific research (Parrillo v. Italy) and surrogacy (Mennesson and Labassée v. France; Paradiso and Campanelli v. Italy). In the ECHR, reproductive rights fall within the right to respect of private life. Considering the diversity of national policies and the ethical and moral issues these questions may raise, there is no consensus between contracting States. As a result, the Court generally leaves States a wide margin of appreciation.
Surveying each of these topics in turn, Michael Wells-Greco considered the existence of emerging trends. He showed that the Court has made a gradual evolution: an isolated national position regarding one issue does not necessarily come into conflict with the ECHR, as reproductive rights are deeply connected to national identities. However, once a contracting State takes the step to grant more rights in this field, it has to respect certain procedural guaranties (e.g. A.B.C. v. Ireland). Wells-Greco criticized this “all or nothing approach” that leaves no room for a potential future consensus and widens even more the divisions between contracting States. Conversely, it appears that the margin of appreciation is smaller when it comes to cross-border situations (e.g. Mennesson and Labassée v. France). How ever, as the PIL response may not take into consideration the human rights response, Wells-Greco advocates resorting to soft law to address the diversity of reproductive rights.

Klaudiuz Ryngielewicz, Contents of an individual application
Concluding the Conference, Klaudiuz Ryngielewicz explained the correct way to lodge an application (see the video) especially with regards to the new formalistic article 47 of the Rules of the Court (see the Report on the revised rule). The increasing number of applications have forced the Court to set strict criteria. After explaining how to fill in the application form, Ryngielewicz insisted on the fact that only a valid application can interrupt the 6-month time-limit set in article 35 of the Convention.
 
 

sexta-feira, 15 de abril de 2016

The Decay of Modern Customary International Law in Spite of Scholarly Heroism

Jean D'Aspremont
University of Manchester - School of Law; University of Amsterdam

2015

Global Community: Yearbook of International Law and Jurisprudence (2015)
Amsterdam Center for International Law No. 2016-08
Amsterdam Law School Research Paper No. 2016-18

Abstract:
This article sheds light on those conceptual artifices that made international custom – and behaviorally generated normativity – possible in international law and shows how international lawyers’ repeated fixes and sophistications have come to precipitate the decay of the modern way of organizing the behavioral generation of legal normativity in international law. After a few introductory considerations on the notion of custom and behaviorally generated normativity from a jurisprudential perspective, this article describes how the two-element doctrine of custom – that is what is called here ‘modern custom’ – was built by international courts and subsequently presented by international lawyers as being derived from Article 38 of the Permanent Court of International Justice. On that occasion, this study demonstrates that the traditional derivation of the two-element doctrine of customary law from the Statute of the Court rests on a false genealogy. This article goes on to show how this modern two-element doctrine proved deficient from the start, generating huge argumentative problems. Such problems – and the general inoperability of the two-element doctrine – did not, however, undermine the popularity of custom among international lawyers thanks to a wide array of virtues traditionally associated with customary international law. These virtues explain the impressive resolve and determination of international lawyers to vindicate or patch up the modern two-element doctrine of customary international law. Yet, as the last part of this article argues, the rescue of customary international law by international lawyers may prove counter-productive as it currently is accelerating the decay of the modern two-element doctrine of customary international law. The article ends with a few observations on the life and death of doctrines.

Number of Pages in PDF File: 42

Disponível em: <http://ssrn.com/abstract=2756904>. Acesso em: 08 abr. 2016.

quarta-feira, 13 de abril de 2016

The Costs of Unenforced Laws: A Field Experiment

Ben Depoorter
University of California Hastings College of Law; Ugent - CASLE; Stanford CIS

Stephan Tontrup
New York University School of Law

March 17, 2016

NYU School of Law, Public Law Research Paper No. 16-10
NYU Law and Economics Research Paper No. 16-12

Abstract:
Unenforced laws are controversial. Admonished by some for undermining public respect for the law and violating the separation of powers, symbolic laws are supported by others because they set goals that society may one day achieve. In this article we identify a hidden cost of laws that the state does not intend or lacks resources to enforce. Based on evidence from a controlled field experiment involving public smoking bans, we show that right violations impose psychological costs on right holders even if they are indifferent about the behavior targeted by the law. Our results also shed light on mechanisms of social-enforcement.

Number of Pages in PDF File: 24

 Disponível em: <http://ssrn.com/abstract=2749166>. Acesso em: 08 abr. 2016.

segunda-feira, 11 de abril de 2016

Instrumentalism


Timothy Meyer
Vanderbilt University Law School

March 29, 2016

J. d’Aspremont and S. Singh (eds), Fundamental Concepts for International Law: The Construction of a Discipline, Elgar, 2016, Forthcoming
Vanderbilt Public Law Research Paper No. 16-11

Abstract:
The tension between power and principle has long been central to international legal discourse. Instrumentalism — the idea that international law can change behavior, but only by creating constraints and opportunities that affect state interests — straddles this tension. This chapter chronicles the rise, role, and contestation of instrumentalism in international legal thought. On its own terms, instrumentalism is a descriptive tool to explain how power and norms interact to shape state behavior. Critics, however, worry that instrumentalism legitimates power politics by clothing them in the trappings of principled legal arguments. Arguments that international law is not “law” or is widely ineffective — arguments that critics fear are aimed at delegitimizing international law as a normative system — have fueled these fears. The chapter argues that instrumentalist thinking has largely survived these critiques. To be sure, instrumentalist scholarship often does aim for policy relevance, and it does view law’s effectiveness as contingent on political and social factors. But instrumentalism continues to flourish in both academic work and international legal practice, in large part because its usefulness as a descriptive tool has been used to understand how to make international law more effective.

The chapter concludes by considering a challenge to instrumentalism from closer to home. Borrowing from behavioralist studies in domestic law, scholars have begun to argue that the assumption of rationality often associated with instrumentalism is flawed. Instead, these writers emphasize the role of psychological biases in decision-making by international actors. This behavioral turn is promising. It remains to be seen, though, whether it will be more successful than prior critiques in modifying the basic instrumentalist framework.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=2756187>. Acesso em: 08 abr. 2016.