Engaging the Fundamentals: On the Autonomous Substance of EU Fundamental Rights Law

2013 ◽  
Vol 14 (10) ◽  
pp. 1917-1938 ◽  
Author(s):  
Daniel Augenstein

Some years back, Philip Alston argued that processes of globalization, such as the privatization of state functions and the deregulation of private power, while purportedly value-neutral, have “acquired the status of values in and of themselves.” The market is increasingly seen as “the most efficient and appropriate value-allocating mechanism.” As a consequence, human rights become subjected to a litmus test of their “market-friendliness.” As Alston puts it:In the world of globalization, a strong reaction against gender and other forms of discrimination, the suppression of trade unions, the denial of primary education or health care, can often require not only a showing that the relevant practices run counter to human rights standards but also a demonstration that they are offensive to the imperatives of economic efficiency and the functioning of the free market … In at least some respects the burden of proof has been shifted—in order to be validated, a purported human right must justify its contribution to a broader, market-based “vision” of the good society.

Author(s):  
Sarah Song

Chapter 6 examines three rights-based arguments for freedom of movement across borders. Three rights-based arguments have been offered in support of freedom of international movement. The first claims that freedom of movement is a fundamental human right in itself. The second adopts a “cantilever” strategy, arguing that freedom of international movement is a logical extension of existing fundamental rights, including the right of domestic free movement and the right to exit one’s country. The third argument is libertarian: international free movement is necessary to respect individual freedom of association and contract. This chapter shows why these arguments fail to justify a general right to free movement across the globe. What is morally required is not a general right of international free movement but an approach that privileges those whose basic human rights are at stake.


2020 ◽  
Vol 27 (4) ◽  
pp. 217-229
Author(s):  
Andrzej Marian Świątkowski

In all EU Member States the status of people employed on job platforms is not fully legally regulated. It is necessary to consider the sources of the contemporary phenomenon of electronic employment, which is not amenable to legal regulation in the Union constituting an “area of freedom, security and justice with respect for fundamental rights” (Art. 67 (1) of the Treaty on the Functioning of the European Union). The right to work in decent conditions, with adequate remuneration, belongs to this category of rights. In the discussion on employment platforms state authorities are more inclined to consider issues related to new technologies, processes and changes caused by the development and application of modern digital technologies (digitization) in almost all areas. The headquarters of trade unions mainly discuss the legal position of employees and the role of employment platforms in employment relations in the post-industrial era. Entrepreneurs and their organizations, including private institutions and employment platforms, are interested in equal treatment by national legislators in local labour markets. They are afraid of the breach of the balance favorable to their own economic interests, caused by the public interest in the possibility of using employment in atypical forms of employment. Services consisting in employment provided under employment platforms are incomparably cheaper than identical work performed by employees employed under employment contracts.


2020 ◽  
Vol 15 (1) ◽  
pp. 21-23
Author(s):  
Mariia Nesterova

The concept of religious freedom, the history of its development, the concept of religious freedom in acts of international organizations, as well as the legislation of Ukraine is considered. Human rights and freedoms do not depend on the socio-economic structure of the state and the level of its development. They should be provided to every person and guaranteed by the country. Constitution and national legislation. It should be noted that the relevance of the issue of international human rights standards (including religious freedom) has become much more acute for our country. No one should be subjected to coercion that diminishes his will to have or accept a religion or belief of his own choosing. Freedom to manifest religion or belief is subject only to restrictions established by law and necessary to protect public safety, order, health, and morals. The features of improvement and trends of changes in the understanding of religious freedom in different epochs and cultural and historical periods of the development of society are analyzed. For a meaningful understanding and clarification of all controversial issues related to the issues of freedom of religion, the origin and perception of it by thinkers and religious traditions of past centuries are considered. The problematic moments and promising achievements of the Ukrainian legislation in matters relating to religious freedom and the rights of believers are highlighted. Freedom of conscience and freedom of religion occupy an important place in the system of personal rights. Guaranteeing the equality of churches before the law, our state recognizes and abides by the provisions, none of them can claim a dominant role in society and the status of a state, and national interests should prevail over the interests of any religious organization.


Author(s):  
Celso Maran de Oliveira

Access to potable water is absolutely essential to the maintenance of life, as well as to provide regular exercise of other human rights. The lack of access to water in sufficient quantity or access to non-potable water may cause serious and irreparable damage to people. This paper investigates the evolution of international and national recognition of this fundamental human right, whether implicit or explicit. This was accomplished by the study of international human rights treaties, bibliographic information on water resources and their corresponding legal systems, national and international. The results suggest that sustainable access to drinking water is a fundamental human right in the context of international relations and the State. Further, even without explicitly stating this right in the Constitution of 1988, Brazil has incorporated the main international provisions on the subject, but this right must be acknowledged according to the principles of non-typical fundamental rights and the dignity of the human person. This right should be universally guaranteed by the Government in sufficient quantity and quality, regardless of the economic resources of individuals.


2008 ◽  
Vol 57 (1) ◽  
pp. 87-112 ◽  
Author(s):  
Daniel Thym

AbstractApplying the European Convention on Human Rights (ECHR) to immigration cases has always been a balancing exercise between the effective protection of human rights and the Contracting States' autonomy to regulate migration flows. In its recent case law, the European Court of Human Rights in Strasbourg (ECtHR) has considerably extended the protective scope of Article 8 ECHR by granting autonomous human rights protection to the long-term resident status independent of the existence of family bonds under the heading of ‘private life’. This has important repercussions for the status of legal and illegal immigrants across Europe, since the new case law widens the reach of human rights law to the legal conditions for leave to remain, effectively granting several applicants a human right to regularize their illegal stay. The contribution analyses the new case law and develops general criteria guiding the application of the ECHR to national immigration laws and the new EU harmonization measures adopted in recent years.


2018 ◽  
Vol 48 (5) ◽  
pp. 463-473 ◽  
Author(s):  
Åsa Burman

This contradiction ”1. The universal right to free speech did not exist before the European Enlightenment, at which time it came into existence. 2. The universal right to free speech has always existed, but this right was recognized only at the time of the European Enlightenment.” (Searle) draws on two common and conflicting intuitions: The human right to free speech exists because institutions, or the law, says so. In contrast, the human right to free speech can exist independently of institutions—these institutions simply recognize a right we already have. John Searle argues that his status function account of human rights can preserve both intuitions by showing that the inconsistency between (1) and (2) is merely apparent. I argue that this solution works for tokens of human rights but not for types, while the contradiction concerns types. Hence, the status function account of human rights fails to preserve both intuitions.


2016 ◽  
Vol 1 (35) ◽  
Author(s):  
Arthur Ramos do Nascimento ◽  
Felipe Borges de Souza Domingues

Reforma agrária e o acesso à terra como um direito humano para as famílias rurais nos países do MERCOSUL: uma análise comparada constitucional e agraristaAgrarian reform and the access to land as a human right for rural families in the MERCOSUL countries: a constitutional and agrarian comparative analysis Arthur Ramos do Nascimento[1]Felipe Borges de Souza Domingues[2] RESUMO: O presente artigo traz ao debate nacional elementos iniciais para reflexão sobre a forma como os países do MERCOSUL encaram o tema da Reforma Agrária e o acesso à terra dentro de uma perspectiva de direitos humanos. Inicialmente analisando o MERCOSUL enquanto um processo de integração e de desenvolvimento regional, a pesquisa apresenta nuances históricas e sociológicas dos países sul-americanos como forma de compreensão da realidade agrária e dos movimentos campesinos pela luta do campo. A partir daí, observa-se a discussão da Reforma Agrária nos países do MERCOSUL, as peculiaridades e diferenças nacionais. A abordagem sobre os direitos humanos e a concepção nacional dos Estados-Membros permite identificar que a proximidade não se limita apenas à questão geográfica, mas que os países compartilham uma identidade muito próxima de concepções e organização, consideradas as devidas proporções e peculiaridades. Assim, é possível analisar as políticas adotadas pelos países membros do MERCOSUL no sentido do acesso à terra como um direito humano e a importância da Reforma Agrária para o desenvolvimento econômico e social. Constata-se a fragilidade das políticas comuns e a ausência de políticas efetivas que incidam sobre todos os países do MERCOSUL, identificando-se ações articuladas, mas sem o status de uma política supraestatal que poderia alcançar maior efetividade para a realidade das famílias rurais. PALAVRAS-CHAVE: Violência simbólica. Lei Maria da Penha. Violência institucional. ABSTRACT: This article contributes to the national debate bringing initial elements for reflection on how the Mercosur countries view the issue of Agrarian Reform and access to land within a perspective of human rights. Initially analyzing Mercosur as a process of integration and regional development, the research shows historical and sociological nuances of the South American countries as a way of understanding the agrarian reality and peasant movements struggling in the countryside. Since then, it was examined the discussion of land reform in the Mercosur countries, their national peculiarities and differences. The approach on human rights and the national conception of each Member State allows the identification that their proximity is not limited to the geographical issue, but that each country shares close concepts and organization, considering its own dimension and peculiarities. Thus, it is possible to analyze the policies adopted by the MERCOSUL member countries in the sense that the access to land is a human right and the importance of Agrarian Reform to economic and social development. It is noted the fragility of common policies and the absence of effective policies concerning all the countries of MERCOSUL. Joint actions are identified, but without the status of a supranational policy that could achieve greater effectiveness to the reality of rural families. KEYWORDS: Acesso à terra. Direitos Humanos. MERCOSUL. Reforma Agrária comparada.[1] Professor da Universidade Federal da Grande Dourados. Mestre em Direito Agrário pela Universidade Federal de Goiás, 2012. Especialista em Direito Civil e Processo Civil pela Pontifícia Universidade Católica de Goiás, 2008). Graduado em Direito (Pontifícia Universidade Católica de Goiás, 2006.[2] Graduando em Direito pela Universidade Federal da Grande Dourados.


Author(s):  
Sionaidh Douglas-Scott

The twenty-first century European Union proclaims its respect for fundamental rights. Indeed, in an era of concern for human rights, it would seem strange if the European Union (EU) did not engage with them. Yet, the EU’s concern for fundamental rights has at least two very different historical sources. First, the Internal Market project has always lain at the heart of the Union and it requires the removal of national obstacles to integration—even possibly those predicated upon fundamental rights. Consequently, the EU’s own focus on fundamental rights constitutes a response to the thinly veiled threat of national courts invoking their own human rights standards to review EU law. On the other hand, the second source relates to the Union’s earliest days, as the Coal and Steel Community and later the European Economic Community (EEC), and as a clear response to the horrors of the early/mid-twentieth century. The objective from the outset was to stop yet another deadly, destructive war in Europe. As Klaus Günther has written, ‘We realise that the European history of human rights is written in blood. And it goes on …’. But perpetual peace in Europe did not merely entail economic integration as an end to conflict—it


Housing Shock ◽  
2020 ◽  
pp. 87-106
Author(s):  
Rory Hearne

This chapter explores the author’s housing journey, from living in private rental housing, to working with disadvantaged communities on housing and human rights, campaigning on homelessness and the right to housing, to being a publically engaged academic researching and engaging in the national policy debate on housing. It details the everyday impact of austerity on disadvantaged social housing communities and their response through a successful ‘Rights-in-action’ human right to housing campaign. It also details participatory action research with homeless families, the Participatory Action Human Rights and Capability Approach. In then discusses the role of academics, policy makers and researchers in social change, empowerment and participation in relation to social justice and housing issues. It interrogates the concept of knowledge production – who’s interest does it serve? Drawing on Freire and Gramsci the Chapter outlines five areas, for the academic researcher (and this can be applied to policy analysts and researchers, NGOs, human rights organisations, trade unions and community activists) to contribute to achieving an egalitarian, socially and environmentally just, and rights-based housing system.


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