Yes / Le Brexit représente le changement le plus important dans les relations que le Royaume-Uni a entretenu avec l’Europe et le monde depuis la fin de la Seconde Guerre mondiale. La décision britannique de mettre fin à plus de quatre décennies de participation au projet européen, la détermination du gouvernement de Theresa May à extraire son pays de l’Union Européenne (UE), mais aussi de l’Union douanière, du Marché intérieur, de la juridiction de la Cour Européenne de Justice, de l’ensemble des règlementations européennes, et même de la Convention Européenne des Droits de l’Homme, ont des implications multiples et lourdes de conséquences dans de vastes domaines. Le Royaume-Uni est certes le premier pays affecté, et ce sur tous les plans. Toutefois, la France et l’Allemagne, ainsi que le projet européen, sont aussi directement concernés par ce divorce qui laisse présager d’importantes répercussions économiques et politiques, mais aussi un déclin progressif de leur voisin d’outre-Manche, avec les conséquences qui pourront en découler.

This study is an attempt at determining the normative legitimacy of the Economic Community of West African States (ECOWAS). At its core, it scrutinizes the current mandate of the organization following the layering of economic integration objectives with human rights protection, sustenance of democracy, and the rule of law. The study discusses the elements of legitimacy across disciplines mainly, international law, international relations and political science. Legitimacy is eventually split along two divides, the normative and descriptive/sociological aspects. The study traces the normative content (shared/common values) underlying integration in Africa, concluding that integration has been born on new ideals such as human rights, democracy and the rule of law. Expectedly, Regional Economic Communities (RECs) as building blocks of the prospective African Economic Community (AEC) under the African Union (AU) regime are mandated to play a vital role in moving the continent forward upon these values. The inquiry is extended to the institutions of ECOWAS to determine their capacity to effectively implement the new mandate of the organization and operate supranationally. In the process, key legal and institutional shortcomings are discussed, particularly in relation to national institutions. It is argued that while human rights protection enhances the normative legitimacy of ECOWAS, it must not be pursued in isolation. Economic integration and protection of citizens’ rights are co-terminus and mutually reinforcing. Hence, community institutions must reflect this link if they are to be effective. The study concludes on the note that, while ECOWAS possesses layers of legitimacy, and have carried out legitimation steps, it cannot be considered a legitimate organization if Member States continue to be non-compliant with community objectives and if key legal questions remain unaddressed. It is submitted that ECOWAS is merely undergoing legitimation, whether it can eventually be considered a legitimate organization is dependent on addressing the identified challenges.

<p> </p><p>Upon a closer examination of the role and performance of the International Court of Justice, we find that it does primarily fulfil its role and obligation as far as the UN charter and the Courts stature are concerned. It is upon the application of Kjell Goldmann’s <em>Internationalists Programme </em>that we find ourselves wanting more from the Court.</p><p>If we assume the development of international institutions, exchange, communication and the like to be desirable and necessary for the continued development of international peace and security, the ICJ can be shown to have had historical opportunities to affect the development to such an effect, but lacks the formal means to do so.</p><p>With the subscription to the internationalists programme, we find that there are plenty of potential improvements that could reasonably be made. These are primarily about the official influence of the Court, with regards to cases relevant to it and its jurisdiction, which is severely crippled by current regulatory framework. This is a condition shared with plenty of other international courts in their various forms.</p><p>Essentially, the current state of the ICJ lacks the desirable attributes and possibilities to influence the development of international law to any meaningful extent. If we indeed were to look for an international court with the means to build international legal institutions and seek to further enforce international peace and security, the ICJ is not what we are looking for.</p><p> </p>

In classical international law, States alone were the makers and subjects of the law. Times have changed. Contemporary international law admits, not only States as its subjects but also individuals and international organisations; it controls not just the needs of States but also the needs of individuals as it continues to venture into areas which, in the classical era, were exclusively reserved to domestic law. The fact that international law now applies to entities other than States is no longer a subject of controversy both in theory and practice. On the contrary, the question relating to whether international law could originate from a source other than through the consent of States in the positivist sense of the law has remained a question of controversy. The question has been made more complex by the multiplicity of international institutions created by States and vested with authority to perform the functions entrusted to them under international law. The functions they perform influence the behaviours and expectations of both States and individuals; but the powers they exercise belong to the States which delegated the powers. Since the powers are delegated by States, it should follow that the powers be confined by the very fact of delegation to the functions for which the powers had been granted. Such powers cannot be used for any other purpose, perhaps. With this in mind, the question sought to be answered in this work is whether the powers granted to International Court of Justice to “decide disputes” – article 38(1) of the Statute of the Court) – implicates the power of judicial lawmaking. In other words, whether rules and principles arising from the decisions of the Court can be properly referred to as rules and principles of international law. The question becomes quite intriguing when placed within the context of article 38(1)(d) and article 59 of the Statute of the Court on the one hand, and the practice of the Court and of the States appearing before it on the other hand. Articles 38(1)(d) provides: “subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” By article 59: “The decision of the Court has no binding force except between the parties and in respect of that particular case”. Notwithstanding the language of the above provisions, it is shown in this work that like judges in municipal law, judges in the ICJ lay down rules and principles having legal implications for the decisions in subsequent cases as well as for the conduct of States, in general, regarding areas within the degrees of the settled case-law of the Court. It is accordingly argued that to the extent that rules and principles in the decisions of the Court are relevant as rules and principles of international law (in subsequent decisions of the Court) to the determination of international law rights and obligations of States, judicial decisions in article 38(1)(d) are a source of international law. This is notwithstanding the unhelpful language of paragraph (d) and the influence of article 59. Concerning article 59, the writer argues that the article has no bearing on the authority of judicial decisions in article 38(1)(d); its real function being to protect the legal rights and interests of States from a decision given in a case to which they were not parties.

This thesis explores subsidiarity's untapped potential as an enforceable legal principle in EU law. To date, discussion of the principle's function in European integration remains overly focused on its effect as a restraint on the Union legislature. In the first part of the thesis, I seek to challenge this entrenched view. Specifically, I question whether or not the subsidiarity principle could and, ultimately, should apply also as a brake on the interpretative authority of the Court of Justice. Arguing that subsidiarity does indeed have a role to play in this context, I then turn to examine, in the second part of the thesis, the implications of this conclusion for the Court's interpretation of the scope of the Treaty provisions guaranteeing intra-EU movement. In the final analysis, I argue that the subsidiarity principle necessitates an adjustment of the Court's current approach to defining the concept of an obstacle to intra-EU movement. This adjustment isolates and protects an appropriate sphere of Member State regulatory competence from the Court's scrutiny at Union level. In so doing, it ensures that, in the process of establishing and managing a functioning internal market, Member States retain some space to breathe.

Resumé The thesis named Case Law of the Court of Justice of the European Union in the Area of Environmental Protection deals with three types of action in which the judicial protection of the environmental interests is provided. First the chambers of the Court of Justice of the EU are characterised - the Court of Justice, the General Court and the Civil Service Tribunal. Chapters on particular types of action follow. Each of them is attached with analysed related significant cases that the Court of Justice of the EU adjudicated upon. The first type of action is the action for failure to fulfil obligations where the principal questions are possibilities of imposing fines on member states that infringe the EU law. Sanctions are imposed in two forms - a penalty or a lump sum. The second type of action is the reference for a preliminary ruling in which the Court of Justice of the EU interprets the EU law a helps courts of the member states apply the EU law. The final chapter examines the action for annulment in which the fundamental and very disputable question is the question of right of action in environmental matters. After the comparison with other areas of the EU law, in particular the area of the competition law, it results from the thesis's chapters that the Court of Justice of the EU provides a very...

This thesis focuses on the legal aspects of Kosovo's unilateral declaration of independence. At first I describe the historical and political development in this region. Further follows the explanation of the instruments of international law, such as the definition of a state, the unilateral acts of states and the role of the International Court of Justice. As conclusion I descirbe the role of this instruments on the example of Kosovo and evaluate the impact of the Kosovo indendence on the legal sphere.

O objeto de estudo desta dissertação recai sobre as funções jurisdicionais do Superior Tribunal de Justiça no Estado Democrático de Direito, visando verificar uma possível mudança na sua compreensão, atividades e competências, desde a sua criação pela Constituição de 1988 até os dias atuais e seu papel no desenvolvimento do Direito. Para tanto, pautado nas mudanças ocorridas na passagem do modelo de Estado Legislativo Liberal para o Estado Democrático de Direito, estuda-se a evolução do papel Judiciário e suas funções como prestador de serviços e poder do Estado. Nesse sentido, a fim de verificar os modelos de Corte que serviram de matriz para a organização do Poder Judiciário no ocidente, as diferenças de suas funções e os sistemas em que se encontram inseridas, o presente trabalho destaca a estrutura e competências da Corte de Cassação Francesa, seus reflexos na Europa continental, e o papel desempenhado pela Suprema Corte estadunidense, clássico exemplo de Corte de Precedentes. Assim, a partir de modelos distintos de Corte, esta dissertação faz a análise da formação e estruturação do Judiciário nas Constituições brasileiras, para poder analisar, o momento de criação, as funções, prerrogativas e competências do Superior Tribunal de Justiça e a potencial mudança na sua compreensão frente às alterações legislativas e constitucionais ocorridas desde 1988, notadamente da criação de um sistema de precedentes pelo Novo Código de Processo Civil. Por fim, o trabalho se dedica a análise de alguns julgados proferidos pelo STJ, que possam exemplificar a atuação da Corte no Estado Democrático de Direito, agindo esta como órgão apto a promover, ao lado do Poder Legislativo, o desenvolvimento do Direito em harmonia com as evoluções sociais. / The object study of this dissertation relapses about the Superior Court of Justice jurisdictional functions on the Democratic State of Law, aiming to verify a possible change on its comprehension, activities and competences, since its creation by the 1988 Constitution until the current days and its role on the law development. Therefore, guided on the changes made on the passage from the Liberal Legislative State to the Democratic State of Law, is studied the evolution on the Judiciary role and its functions as service provider and State power. In this way, in order to verify the Court models that served as pattern to the organization on the Judiciary on the west, the differences on its functions and the systems that are included on it, the present paper point out the structure and the competences of the French Court of Cassation, its reflexes on the continental Europe, and the role played by the American Supreme Court, a classical Precedent Court example. Thus, from the distinct Court models, this dissertation makes analyses on the formation and organization of the Judiciary on the Brazilian Constitutions, in order to analyze, the creation moment, the functions, prerogatives and competences of the Superior Court of Justice and the possible change on its comprehension in front of the legislatives and constitutionals changes happened since 1988, notably from the creation of a precedents system by the New Procedural Civil Code. Finally, the paper apply to analyze of some judgments given by the Superior Court of Justice, that can exemplify the action of the Court on the Democratic State of Law, acting as a public agency capable to promote, next to the Legislative, the development of the law in harmony with the social evolutions.

Thesis advisor: James Cronin / In 1957, the Treaty of Rome was signed by six West European states to create the European Economic Community (EEC). Designed to foster a common internal market for a limited amount of industrial goods and to define a customs union within the Six, it did not at the time particularly stand out among contemporary international organizations. However, by 1992, within the space of a single generation, this initially limited trade zone had been dramatically expanded into the world's largest trade bloc and had pooled substantial sovereignty among its member states on a range of core state responsibilities. Most remarkably, this transformation resulted from a thoroughly novel political experiment that combined traditional interstate cooperation among its growing membership with an unprecedented transfer of sovereignty to centralized institutions. Though still lacking the traditional institutions and legitimacy of a fully-fledged state, in many policy areas, the European Union (EU) that emerged in 1992 was nonetheless collectively a global force. My dissertation argues that the organization's unprecedented transfer of national sovereignty challenged the very definition of the modern European state and its function. In structure and ambition, it represented far more than just a regional trade bloc among independent states: it became a unique political entity that effectively remodelled the fundamental blueprint of the conventional European state structure familiar to scholars for generations. How did such a dramatic transformation happen so quickly? I argue that three forces in particular were at play: the external pressures of globalization, the search for a new Western European and German identity within the Cold War world and the often unintended consequences of the interaction between member state governments and the Community's supranational institutions. In particular, I examine the history of the EEC's monetary union, common foreign policy, common social policy and the single market to explain the impact of the above forces of change on the EEC's rapid transformation. / Thesis (PhD) — Boston College, 2014. / Submitted to: Boston College. Graduate School of Arts and Sciences. / Discipline: History.

A presente dissertação aborda a problemática questão da responsabilidade do Estado por omissões judiciais em seus diversos aspectos. Apresenta um panorama geral do papel e da função do instituto da responsabilidade extracontratual do Estado concebido dentro de um sistema amplo de controle e responsabilidade em sentido amplo do Poder Judiciário e da magistratura, sobretudo no sistema brasileiro. Examina a tipologia dos atos oriundos do Poder Judiciário para fins da incidência da responsabilidade estatal. Analisa a responsabilidade do Estado em face dos atos jurisdicionais e não jurisdicionais do Poder Judiciário. Estuda separadamente cada requisito da responsabilidade do Estado por omissão. Traça as peculiaridades de cada um desses requisitos considerando as peculiaridades da atividade judiciária. Propõe e delimita, com enfoque (mas não exclusivamente) no processo cível, oito espécies de omissões judiciais passíveis de gerar a responsabilidade do Estado. Enfrenta, dentre essas espécies, a questão da denegação de justiça e morosidade judicial. Trata da responsabilidade pessoal do magistrado e demais servidores. Discorre sobre a relação dessa responsabilidade com a do Estado. E, por fim, expõe algumas questões processuais relacionadas a tais ações. / This dissertation addresses the highly problematic issue regarding liability of the State on court omissions in its various aspects. It provides an overview of the role and function of the liability of the State in torts considering the Brazilian broad control system of judicial acts. This work deals with specific types of acts related to liability of the State in the Judiciary, by analyzing the liability on judicial and non-judicial acts. It also studies each aspect of the liability of the State on court omissions considering the peculiarities of the judicial activity. Another point is the effort to clearly define eight species of court omissions focusing (but not exclusively) in Civil Procedure Law and the attempt to deal with issues related to justice denial and judicial delay. It studies judge and judicial employees accountability and the discussion related to this judicial accountability and the State. Finally, it presents some procedural issues related to such actions.