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Is the Bossi-Fini Law in Compliance With Arts 2 and 26 of the International Covenant on Civil and Political Rights

Is the Bossi-Fini Law in Compliance With Arts 2 and 26 of the International Covenant on Civil and Political Rights

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Published by Umberto Tramontano
Is the Bossi-Fini Law in compliance with arts 2 and 26 of the International Covenant on Civil and Political Rights
Is the Bossi-Fini Law in compliance with arts 2 and 26 of the International Covenant on Civil and Political Rights

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Categories:Types, Research, Law
Published by: Umberto Tramontano on Sep 02, 2011
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01/08/2013

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Is the Bossi-Fini Law (L.189/2002) in compliance with arts 2 and 26 of theInternational Covenant on Civil and Political Rights?
Mario Umberto Tramontano
 
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Acknowledgments
This research paper would not have been possible without the support of manypeople, all of whom I cannot possibly thank here. However, I would like to thank afew of them directly. First, I would like to thank my supervisor Natalia Szablewska forall the support and encouragement she has shown me throughout during the writingof my paper. I would also like to thank my sisters Michela and Antonella whoseadvices were vital to my research. Finally, none of this would have been possiblewithout the support of my friends. In particular I want to thank Vico for his patienceand help. And to my parents, whose love and sacrifice have made it possible for meto study what I have always wanted to.
 
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Abstract
The Italian government has shifted its approach to immigration by introducing arevolutionary bill based on zero tolerance against irregular migrants. Among otherthings, the Bossi-
Fini Law (L.189/2002) established an “aggravating circumstance”
which envisages an increase of punishment for migrants as well as differentprovisions that tend to criminalise irregulars. The system of annual quotas serves asa way of selecting those who are allowed to work, whereas the requirement to havea job before entering the country
de facto 
fosters illegality. The ultimate aim of thelegislation seems to be the criminalisation of the migrant population so as to allowdetention and/or repatriation. Yet, the differential regime may lack the required valid justification, reasonableness and objectivity demanded by arts 2 and 26 of theICCPR on the principle of equality before the law and non-discrimination.In order to test whether said legislation violates Italian international obligations, I willuse a legal interpretative method based particularly on guidelines provided by boththe Italian Civil Code and the Vienna Convention on the Law of Treaties. Byanalysing the jurisprudence of the Italian Constitutional Court and the Human RightsCommittee I will assess the aforementioned test. The variety of sources used followart.38 of the International Court of Justice Statute that codifies the sources ofinternational law.I argue that the implementation overtime of L.189/2002 has put Italy in breach of itsinternational obligations under arts 2 and 26 of the ICCPR. Despite recognisingequality before the law and non-discrimination in its Constitution, the inconsistentand politically influenced process of constitutional review has allowed for some gapsin the protection of migrants from discrimination as conceived by the Human RightsCommittee in its jurisprudence.

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