RISULTATI RICERCA

The Hidden Normative Process Behind the Construction of European Migration Policies (di Anna Piasecka, Pietro Saitta) - ABSTRACT: This paper examines how legal science can provide a new perspective and instrument of analysis for understanding how action is produced by legal rules in a given system. By treating legal rules as a factor of explanation in perceiving political action, the authors aim to use them as a scientific perspective that will reflect whether there is a normative determination to generate harmonised legislation with regard to immigration and a multicultural society in Europe, or whether there is opposition based on various different national reasons and interests in EU member states. Tools s provided by the science or norms, as defined by the Swedish scholar H. Hydén, are applied to observe immigration policies, both at the supranational (European) level and the national (Italian) level. The results suggest that there is a process of disarticulation of these policies in the heterogeneous position typical of the European Union, which noticeably shows a lack of will to co-ordinate the actions of individual member states and induce them to share common visions on the question.

The legal rules regulating Italian nationality (Law N° 91 of 1992) say that the son or daughter of an Italian mother or father is automatically an Italian citizen. Nowadays, approximately one third of Argentina’s population is of Italian origin: according to this principle, if certain other prerequisites are satisfied, they should be entitled to be recognised as Italian nationals. Nevertheless, in the real world, although many Argentineans possess the necessary prerequisites, they encounter many difficulties when they attempt to have this Italian law implemented and their right of citizenship recognised. Considering this topic in the light of socio-legal theories on the implementation of law, this paper tries to single out the bureaucratic barriers encountered by Argentineans of Italian origin in the long process of achieving recognition as Italian citizens. An attempt is also made to understand whether this can be considered to be a case of the administrative misapplication of law.

This article discusses the need to overcome the derogatory focus that still pervades the EU in its approach to immigration policies, as the challenge of immigration reaches much further than the difficulty of adapting statistics and tools to suit the requirements of the labour market, or the measures to be adopted to maintain the standard of public order. Migratory flows are the catalyst that obliges us to face up to the need to reappraise the roots of our responses to the democratic construct of the social and political bond: responses that now feature a high deficit of inclusion and plurality in the extent to which they institutionalise the exclusion of immigrants as actors in the public space, their conceptual impossibility of managing to become citizens. The failed EU constitutional treaty was a lost opportunity to define an inclusive, plural notion of citizenship that could have opened up the possibility of full equality of rights to immigrants, including political rights. The article argues in favour of opening access for immigrants to a multilateral form of citizenship based on the notion of residents and residence that takes shape gradually, starting after three years of stable and legal residence.

Working against a background of moves for secession, the author considers questions pertaining to the choice of territorial loyalty and the significance of borders. The specific nature of secession resides in its constituting the crisis of all previously consolidated borders and the expression of tension in relation to them, although at the same time it does not appear to be so much a revolutionary as a conservative concept, as it does not oblige the classical concepts relative to the nature and structure of the state to be reappraised. The author then relates the commonest meaning of secession (the separation of a concentrated group of territories from a sovereign state) to individual forms of secession. In the process, she notes on the one hand how both forms of secession are still expressions of the constant (and at times dramatic) significance of borders and of their material substance and, at same time, how they both tend to deprive the fixed, stable nature of borders (the very foundation of the international community) of all their sanctity. On the other hand, she also notes that, while collective secession is relegated to the margins of rationality, as it contradicts the sovereign demarcation of spatial relations treated systematically by the international law of state borders, the individual right of secession (i.e. the right to migrate) premises the dissolution of sovereign political identities, obliging every kind of state organisation, national space and community thinking to be reappraised.

The aim of this essay is to describe the unusual way in which legal provisions addressed to protect human dignity are restored and re-affirmed after they have been violated. While on the one hand rights in general become positively relevant only when they are denied, de jure or de facto, on the other hand, in the special case of human dignity, this slight logical recursiveness and impurity turns into an insoluble doubt, a true aporia. The author’s view is that dignity cannot be a fully-fledged subjective right per se, since a clear-cut distinction between its assertion and its denial cannot be drawn in practice, such that every step in the analysis of this notion will be a further step toward extreme aporetic outcomes.