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2012
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Thesis
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EUI PhD theses; Department of Law
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View Abstract
This research first sets out to verify whether the measures in the EU’s peacebuilding toolbox indeed turn out to have converging objectives, an overlapping scope and provide for similar activities across the CFSP / non-CFSP divide. Does the European Union live up to expectations as to the extensiveness of the range of its tools? And, if in the affirmative, do they have the potential to leave a substantial and sustainable impact? These tools include primarily the non-CFSP external assistance instruments, on the one hand, and EU operations under the aegis of the CFSP, on the other. Both are presented in detail in order precisely to classify their objectives on all levels, from the Treaty level to the instruments’ implementing decisions and programmes, and to identify the possible activities undertaken to this end. Underpinned by the objective of shedding light on the competence allocation in EU peacebuilding, this analysis yields questions such as: what actually is the difference between an EU contracted police officer mentoring and monitoring third country police officers in conducting an effective crime investigation according to predetermined action fiches, and an expert funded under an EU technical assistance or twinning project to establish a detailed workplan and strategy for enhancing the effectiveness of crime investigation? And what is the difference between awareness raising, training and trial monitoring with the objective of advancing in the fight against corruption, as opposed to capacity-building and financial assistance in the public sector in this respect? And does the establishment of a transparent and objective case-allocation system in the judiciary call for a non-CFSP financed project, or can it also be achieved through mentoring in the context of an EU strengthening operation?
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2012
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Thesis
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EUI PhD theses; Department of Law
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View Abstract
Following the Europeanisation studies ‘top-out’ approach in this thesis I analyse the legal approximation process with Russia as a mechanism of acquis export in the backdrop of the various European economic integration processes. At first glance approximation is a sui generis method of regional integration not fitting well in the classical economic structures, representing as a result both a challenge and an opportunity for the EU as well as important avenue for research. In order to understand and assess this method I explore the nature and objectives of approximation as a concept and as a process for law reform. I do this by differentiating it from other integration methods. I then define aapproximation as the most basic method of acquis export that employs know-how delivery and gradual adaptation as its tools for change. In order to assess its results in the Russian case I select competition law as case study for being an essential element of the market economy and a catalyst for market reform, equally serving as a pillar for economic development and stability as well as regional integration. To do this I devise a compatibility assessment formed by a comparative analysis of the fundamental areas of Competition Law; an influence analysis of the EU; and a compliance analysis of the Russian compliance with the approximation objectives. The assessment concludes that while differences in some areas remain Russia has approximated its competition law following the EU model to a high degree. This shows that, in spite of the serious political, economic and value based challenges, the objectives of this process have been met to a great degree, proving that approximation has had a major impact on Russian reform. Finally, after analysing the main obstacles and dilemmas of the approximation process I assert that any new developments of EU-Russia approximation should take into account the fact that both actors have significantly evolved as well as the interdependence of the legal, economic and political tensions between them. Ultimately, I affirm that the gradual reception of a legal model can overcome political, economic and even cultural divergence if it proves to be useful to the receiving country.
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2012
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Thesis
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EUI PhD theses; Department of Law
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View Abstract
This thesis presents a novel conceptualization of the right to personal identity: one that is adapted to the current technological environment in which we live, and that anticipates future technological developments. The study provides a comprehensive analysis of the right to personal identity, tracing its historical origins and main juridical developments from the Roman period to the present (and future) time. It also distinguishes the right to identity from other rights (such as the right to privacy and the right to data protection), thus contributing to the autonomy of this legal figure. This study puts forward a reconceptualization of the right to personal identity as a right that encompasses, controls and protects a series of different types of information related to or constitutive of our personal identity (digital, genetic, neural). Further to a right over information, the right to identity is presented as a right that regulates a series of identity movements and transformations between different ontological levels of “being” (possible <-> real; actual <-> virtual). Thus, the right to identity is the right to have one’s identity attributes registered (real <-> possible), as well as the right to be recognized and identified (possible <-> real) according to those defining features. The right to identity also encompasses the right to be represented as one wishes (virtual ?? actual) – that is, the right not to be misrepresented; the right to multiple identities (virtual <-> actual) – that is, the right to create, control and uphold different identities in digital environments (such as pseudonyms and heteronyms); and the right to delete and recreate oneself (actual <-> virtual), an identity movement that encompasses the right to be forgotten (and, consequently, the right to start again), as well as the eventual right to undergo genetic (post-human) and neural (memoryediting/ deletion) transformations. Following a postmodern conception of identity (as antiessentialistic, dynamic and multiple), the right to personal identity is defined as the right to be unique and different, not only from others but also from oneself. Further to this theoretical framework, the thesis also presents the foundations for an identity-regulatory system that grants the individual with the necessary and operational means to manage, control, change or delete his or her identity(ies).
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2012
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Thesis
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EUI PhD theses; Department of Law
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View Abstract
This thesis examines the evolution of United Kingdom (UK) and European Union (EU) refugee law, arguing that there is a problematic relationship between immigration and asylum law in both contexts. UK asylum law emerged initially as an exception to generalised immigration restriction. The origins of the legal concept of asylum lay within the discretionary confines of immigration law – to this extent refugee law was partly constituted by the immigration and border control regime. Similarly the UK’s first asylum law took shape in the context of restrictive intergovernmental cooperation between immigration ministers taking place at the European level in the 1980s and 1990s. It is argued that the UK welcomes aspects of EU cooperation that boost its own administrative capacity, but rejects European influence where this threatens to impinge upon its discretion to shape its domestic asylum regime. The UK’s flexible opt out allows it to participate in EU measures according to these preferences. This thesis questions whether the EU should tolerate such cherry-picking in respect of a sensitive area of law that affects the lives of vulnerable individuals. While harmonisation demands the setting of minimum asylum standards, the first stage asylum directives consist of an unhappy compromise in permitting a wide scope for discretion for Member States in applying the directives, resulting in diverse practices across the EU. This is untenable in light of the persistence of the Union’s “one chance of asylum” rule. Further, it is argued that even if adequate reform of substantive internal protection standards is possible, this is insufficient in the absence of comprehensively addressing the relationship between migration and border control and asylum. In the EU, it is argued that exclusionary migration policy subverts the protective potential of its refugee law. While elements of European refugee law might suggest that EU cooperation embodies an improvement on international protection standards, the EU’s exclusionary migration and border control regime severely limits access to protection.
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2011
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Thesis
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EUI PhD theses; Department of Law
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View Abstract
This thesis addresses the question of when the European Union is internationally responsible. More precisely, it examines the extent to which the European Union and its Member States bear responsibility for the violations of an international agreement committed as a consequence of the implementation of EU Law. The specific features of the multilevel system implementation of EU Law poses a series of very interesting questions as regards the EU’s relations with its Member States and their responsibility under International Law. The EU primarily implements its law through its Member States’ authorities. As such, should the EU bear responsibility for a violation committed by a Member State organ because it was implementing EU Law? Should a Member State which, in complying with a piece of EU legislation, violated an international obligation be held liable? This thesis examines these questions from a practical perspective. It examines how international bodies approach the issue. In this regard, the thesis sets out to examine whether there is a common thread in the way international courts and tribunals deal with the EU’s international responsibility. The thesis is structured in four parts. Part I identifies the basic issues surrounding the responsibility of the EU and its Member States under international law, by examining the context and the main issues both at the international level and domestic level. Part II of the thesis focuses on the main mechanism used by the EU to deal with its international responsibility. More specifically it addresses the question of whether the division of competence is a good way to establish the EU’s responsibility under an international agreement. Part III of the thesis continues with a practical examination of the EU’s responsibility. It examines how international courts and tribunals establish the EU‘s international responsibility in absence of any declaration limiting its competence. Part IV summarizes the conclusions of Parts I, II and III and contains a series of concluding remarks on the issue of the EU’s international responsibility and future developments.
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