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This book examines the challenges posed to contemporary international law by the shifting role of the border, which has recently re-emerged as a central issue in international relations. It posits that borders do not merely correspond to States’ boundaries: indeed, while remaining a fundamental tool for asserting States’ power, they are in fact a collection of constantly changing spatial limits. Consequently, the book approaches borders as context-specific limits and revisits notions traditionally linked to them (jurisdiction, sovereignty, responsibility, individual rights), while also adopting the innovative approach of viewing borders as phenomena of both closedness and openness. Accordingly, the first part of the book addresses what happens “within” borders, investigating the root causes of the emergence of spatial limits and re-assessing apparent extra-territorial assertions of State power. In turn, the second part not only explores typical borderless spaces, but also more generally considers the exercise of States’ and international organisations’ powers and prerogatives across or “beyond” borders.

Inhaltsverzeichnis

Frontmatter

Borders and International Law: Setting the Stage

Abstract
The chapter aims to provide an overview of the broader context lying at the background of the analyses conducted in this collected volume. It proceeds in three steps. First, it offers a historiography of the notion of the border in international law, from the Roman ages to modernity. It appears that historically the legal concept of the border has undergone continuous transformations determined by the fluctuating purposes attached to it and by the modifications experienced by various socio-political entities. Second, it pinpoints two of the main trends of current international law, namely the increase of boundary disputes and the shift from pure territorial to “functional” borders, providing evidence of both. This follows the fact that also today the border is not an exact place: it is rather a series of spatial limits incessantly changing through which States assert their power, and one may happen to be within or beyond them regardless of where that person is physically located. This makes it necessary for international lawyers to systematically reflect upon the relationship between States’ power, borders and phenomena of closure and openness. The third section accordingly provides a synopsis of the book.
Alice Riccardi, Tommaso Natoli

Within the Border

Frontmatter

Access to Social Security for Migrants in the European Union: Sedentarist Biases Between Citizenship, Residence and Claims for a Post-national Society

Abstract
This chapter analyses the conditions to access social security for third-country nationals moving across European borders under the theories of sedentarism and post-nationalism. According to the concept of sedentarism, citizenship is a ‘right to have rights’. Post-nationalism, instead, claims that citizenship is an outdated concept and calls for societies to be organized beyond the nation-states. Through this chapter, both theoretical approaches will be tested upon the study of the conditions to access social security in the European Union, showing that in most legal systems access to social benefits is granted upon evidence of a certain degree of connection with the territory, usually in the form of prolonged legal residence or payment of a minimum of social security contributions. The last section of the chapter will analyse possible alternatives to sedentarism, with the purpose of overcoming the discriminatory effects of sedentary biases and ensuring the equal respect of every person’s human rights.
Marta Gionco

Non-refoulement in the Eyes of the Strasbourg and Luxembourg Courts: What Room for Its Absoluteness?

Abstract
This chapter aims at proving that, if an asylum seeker challenges a removal due to the alleged breach of the ius cogens principle of non-refoulement, the standard of protection varies according to the court in charge of settling the dispute, and to the receiving State’s membership to an international organization. On the one hand, the comparative analysis of the recent judgments of the European Court of Human Rights and the Court of Justice of the European Union relating to Dublin Transfers reveals that these two Courts bear on different thresholds in order to assess the breach of the provision at stake. On the other hand, the Strasbourg Court developed a double standard of application of the principle of non-refoulement depending on the receiving State’s membership to the European Union: according to the case law of the European Court of Human Rights, if the receiving State is a member of the European Union, it must ensure a higher level of protection than the one required to other States parties to the Convention that are not members of the European Union. The application of different standards of protection risks undermining the absolute character of the principle of non-refoulement, whose respect requires a “harm-centered approach” focused solely on the consequences that the person would face if removed to the receiving State.
Giulia Ciliberto

The Pillars of Heracles of European Private International Law: The Frontiers with Third States and Brexit

Abstract
As from the Treaty of Amsterdam and the so-called communitarization of private international law (PIL), the European legislator has been very prolific in the area of civil judicial cooperation and considerably reduced the scope of national legislations, in some cases replacing it altogether, toward a gradual unification of PIL at the European level. However, the still predominant Euro-centric character of European PIL is difficult to reconcile with the requirements and objectives of the European Union (EU) civil judicial cooperation and limits excessively the scope of European PIL. Against this background, this chapter investigates the state of EU external action in the area of PIL and the possible approaches to extend the scope of European PIL towards a complete system applicable erga omnes. The relationship between European PIL and the outer world will be tackled by considering pros and cons of two different approaches: multilateralism and unilateralism. The conclusion in favour of unilateralism is eventually put to the test in the Brexit scenario and the future of UK/EU27 civil judicial cooperation.
Nicolò Nisi

The Principle of Territoriality in EU Data Protection Law

Abstract
The chapter analyses the role of the principle of territoriality in the application of European Union (EU) data protection law. The aim is to assess to what extent the territorial element is relevant in determining the scope of application of data protection obligations and consequently whether the new EU regulation is consistent with general principles of international law governing the exercise of prescriptive jurisdiction. By drawing a comparison between the territorial scope of Directive 95/46 and the new GDPR, the chapter claims that territorial connections constitute the main trigger for the EU jurisdictional claim. Finally, taking into account the novelties introduced by the GDPR, it evaluates the international legitimacy of EU data protection rules, especially in the light of the principle of proportionality as a tool to balance competing jurisdictional interests.
Stefano Saluzzo

Beyond the Border

Frontmatter

Testing the Analogy: The CoE–ECHR System Pioneering Human Rights Protection in the Cyberspace

Abstract
The aim of the chapter is to explore the role of the Council of Europe–European Court of Human Rights’ system in protecting fundamental rights in the digital age, with a focus on the activities conducted in—and through—the cyberspace. The chapter, which takes as its starting point the fact that the structural features of such intangible “space” pose a series of challenges to the operation of international law, and thus of international human rights law, is divided into two sections. First, the research addresses the institutional “activism” of the Council of Europe (CoE) in consolidating human rights protection online, mainly through the adoption of a specific set of (hard and soft law) instruments. Second, it reflects on the current trends of the European Court of Human Rights (ECtHR) case-law concerning public and private conducts online. A detailed analysis of the most relevant cases unveils that, following the CoE relevant policies, the Court has adopted an “analogical” methodology in applying provisions of the European Convention of Human Rights to the cyberspace without any prior reformulation. With specific regards to the right to privacy, freedom of expression and the right to inform/get informed, the consistency of this approach is thus tested. It results that, while in some cases the interests at stake have been respected, in other cases the “analogical” approach is unsuitable against the innovations of the digital world, showing the need for a reconfiguration of some of the Court’s previous assumptions. Conclusively, despite such diverging outcomes, the unique features of the CoE–ECtHR interaction as cutting-edge model are considered, together with its aim to be projected beyond its geographical borders.
Tommaso Natoli

The Sky’s Not the Limit: Legal Bonds and Boundaries in Claiming Sovereignty over Celestial Bodies

Abstract
That the claiming of sovereignty on celestial bodies is a topical issue, one that might get newspapers’ headlines in the near future, is pretty evident. Public entities as well as private actors are studying, if not explicitly scheduling, missions destined to land on the Red Planet and colonize it. What about the law regulating such conduct? In the last decade or so, we have witnessed a revival of legal studies on space affairs, and those relating to the legality of the extraction of planetary resources have in particular flourished. However, the possibility of asserting sovereignty over those bodies, or part thereof, did not partake in such revival. This contribution takes the issue seriously, as it aims to understand which rules apply when we reach the final frontier. The same old answer: ‘the Outer Space Treaty applies’ is not satisfactory, for a number of reasons that relate to its uncertain legal status and even its somewhat uncertain content. These factors might prevent the scramble for Mars from being legally hindered. Irrespective of the treaty’s status, someone might try to establish a colony on a celestial body. This contribution analyzes the conditions under which the space homesteaders would be entitled to lay a valid sovereign claim on it; conversely, it answers the question whether the Earthlings would be bound to a duty of non-recognition of the new entity. A problem remains open: is there a possibility that international law at the (final) frontier might turn into the frontier of international law?
Paolo Turrini

A Bull in a China Shop: The Exercise of the ICC’s Jurisdiction Over Its Territorial Reach in Situations Involving Non-Party States

Abstract
The aim of this contribution is to shed some light on an underestimated matter: the exercise of the International Criminal Court’s jurisdiction over its own jurisdiction in relation to situations involving non-Party States. According to Article 12(3) of the Statute, a non-Party State may in fact accept the Court’s jurisdiction on an ad hoc basis, with respect to conducts committed on its territory or by its nationals and allegedly amounting to international crimes, by lodging a declaration with the Registrar of the Court. In such circumstances, the Court must first ascertain whether the entity that filed the declaration was entitled to do so—i.e., whether the preconditions for the exercise of the Court’s jurisdiction have been fulfilled. As demonstrated by the vehement reactions of Israeli and Russian authorities in relation to the Palestinian and Ukrainian declarations, this assessment may be particularly delicate in situations where the side effect of an ad hoc declaration is to broaden the territorial reach of the Statute. In a recent decision, the Pre-Trial Chamber has found that the Court has an inherent power to exercise kompetenz-kompetenz at any stage of the proceeding, including with regard to its territorial jurisdiction. Conversely, the judges decided not to interfere with the discretionary nature of the Prosecutor’s power to seek such rulings. Considering the legal and political impact of the described scenarios, this contribution argues that an amendment to the Statute should be adopted, requiring the Prosecutor to refer the assessments concerning the Court’s jurisdictional reach to the Pre-Trial Division in case such determinations may affect the legal status or interests of a third State.
Luigi Prosperi

At the Frontier: Values and Borders in the EU’s External Relations

Abstract
In the European process of integration, the economic aspect has always been a necessary step towards the establishment of a political union between Member States. The emergence of non-economic values has been key in this sense, as it has led to reshaping the nature of European integration and to the progressive redrafting of its founding treaties. In fact, Article 2 of the Treaty on the European Union lists the values on which the European Union is founded, but it does not refer to the economic features of the European integration, focusing instead on human dignity, freedom, democracy, equality, the rule of law, and human rights. Under Article 3(5) and Article 21(1) of the same Treaty, the European Union is legally bound to project these values beyond its borders. The paper highlights some consistency issues that arise from some regulations that the European Union has adopted in this regard. Its purpose is to assess whether the choice made by the European Union leaves room for the alternative set of values that other countries might have decided to adopt.
Alessandro Rosanò

Backmatter

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