The Legal Abyss of Discretion in the Resettlement of Refugees

2020 ◽  
Vol 32 (1) ◽  
pp. 54-85
Author(s):  
Tom de Boer ◽  
Marjoleine Zieck
Keyword(s):  
European Union ◽  
Point Of View ◽  
Fundamental Rights ◽  
European Convention ◽  
Burden Sharing ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Common European Asylum System ◽  
International Refugee Law

Abstract The world is experiencing its largest refugee crisis since the Second World War, and more than ever before, the lack of an equitable burden-sharing mechanism is making itself felt: the world’s poorest States are hosting most of the refugees. The durable solution of resettlement of refugees is, in theory, the principal means of securing responsibility sharing within the framework of international refugee law. In practice, this cannot be realized since fewer than 1 per cent of the world’s refugees can be resettled annually due to the small number of available resettlement places. However, initiatives are being developed to increase the number of States that offer resettlement places to refugees and hence the number of available resettlement places. Europe, too, traditionally lagging well behind in terms of the number of resettlement places it offers, is endeavouring to contribute more places. It must nonetheless be noted that Europe’s increasing support for resettlement is paired with a policy of extraterritorialization of asylum claims and minimization of ‘spontaneous’ refugee arrivals. If Europe indeed aims to replace the regular asylum system with controlled refugee resettlement, this will raise issues of access to asylum. While the current Common European Asylum System contains a plethora of procedural and substantive rights for asylum seekers, resettlement – due to its essentially discretionary nature – appears to take place in a legal void, that is, it appears to suffer from arbitrariness in the selection of refugees and a lack of procedural rights and legal remedies for the refugees involved in the resettlement process. The question is whether this is also the case with the European Union (EU) resettlement proposals and, if so, whether this can be sustained from a legal point of view. This article reviews these proposals, along with the current practice of refugee selection by EU Member States, and analyses them from a refugee rights perspective. It examines whether EU initiatives affect the discretionary nature of resettlement, and specifically analyses whether the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union apply to the resettlement procedures of EU Member States and, if so, what rights could be invoked by the refugees involved under those instruments.

scholarly journals European Regional Inequalities: The Other Face of Development

2017 ◽  
Vol 9 (4) ◽  
pp. 163
Author(s):  
Celeste Perrucchini ◽  
Hiroshi Ito
Keyword(s):  
European Union ◽  
Empirical Evidence ◽  
Capita Income ◽  
Relevant Literature ◽  
Point Of View ◽  
The European Union ◽  
Per Capita Income ◽  
Member States ◽  
Eu Member States ◽  
Per Capita

Empirical evidence suggests an overall convergence in terms of GDP and per capita income occurring among the European Union (EU) Member States. Nevertheless, economic inequalities have been increasing at the regional level within European Union countries. Through the review of relevant literature, this study analyzes the increasing inequalities from an economical point of view, focusing on Italy and the UK as examples. First, a general overlook of the empirical evidence of the GDP and per capita income at national and sub-national levels will be presented. Second, an explanation of the possible causes of the results will be proposed through the use of economical and sociological theories. The findings of this research might uncover the relative inefficacy of EU Cohesion policies and point towards the necessity for deeper and more thoughtful measures to continue the convergence of Member States while preserving internal equilibria. This paper ends with discussions for the future directions of the EU.

The Right to Healthcare in the Common European Asylum System

2018 ◽  
Vol 20 (2) ◽  
pp. 135-156
Author(s):  
Marco Inglese
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
European Convention ◽  
Undocumented Migrants ◽  
The European Union ◽  
Common European Asylum System ◽  
The Common ◽  
Interpretative Approach ◽  
The Right

Abstract This article seeks to ascertain the role of healthcare in the Common European Asylum System (CEAS). The article is structured as follows. First, it outlines the international conceptualisation of healthcare in the International Covenant of Economic, Social and Cultural Rights (ICESCR) and the European Social Charter (ESC) before delving into the European Convention on Human Rights (ECHR). Second, focusing on the European Union (EU), it analyses the role of Article 35 of the Charter of Fundamental Rights of the European Union (the Charter) in order to verify its impact on the development of the CEAS. Third, and in conclusion, it will argue that the identification of the role of healthcare in the CEAS should be understood in light of the Charter’s scope of application. This interpretative approach will be beneficial for asylum seekers and undocumented migrants, as well as for the Member States (MSs).

European Union Rights and Values in Human Health

2019 ◽  
pp. 16-51
Author(s):  
Anniek de Ruijter
Keyword(s):  
Public Health ◽  
European Union ◽  
National Policy ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Eu Fundamental Rights ◽  
The Eu

This book looks at the impact of the expanding power of the EU in terms of fundamental rights and values. The current chapter lays down the framework for this analysis. Law did not always have a central role to play in the context of medicine and health. The role of law grew after the Second Word War and the Nuremberg Doctors Trials (1947), in which preventing the repetition of atrocities that were committed in the name of medicine became a guidepost for future law regarding patients’ rights and bioethics. In the period after the War, across the EU Member States, health law developed as a legal discipline in which a balance was struck in medicine and public health between law, bioethics, and fundamental rights. The role of EU fundamental rights protections in the context of public health and health care developed in relation with the growth of multilevel governance and litigation (national, international, Council of Europe, and European Union). For the analysis here, this chapter develops an EU rights and values framework that goes beyond the strictly legal and allows for a ‘normative language’ that takes into consideration fundamental rights as an expression of important shared values in the context of the European Union. The perspective of EU fundamental rights and values can demonstrate possible tensions caused by EU health policy: implications in terms of fundamental rights can show how highly sensitive national policy issues may be affected by the Member States’ participation in EU policymaking activities.

Fundamental Rights and the United Nations Financial Sanction Regime: The Kadi and Yusuf Judgments of the Court of First Instance of the European Communities

2006 ◽  
Vol 19 (3) ◽  
pp. 753-772 ◽  
Author(s):  
MIELLE BULTERMAN
Keyword(s):  
European Union ◽  
Human Rights ◽  
Legal Reasoning ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Community Regulation ◽  
Court Of First Instance ◽  
Right Of Access

Under the UN sanctions regime of Resolution 1267, UN member states are obliged to freeze the assets of persons and entities which are associated with Usama bin Laden, and which therefore reason have been listed by the UN. Within the European Union this ‘UN sanctions list’ is implemented by means of a Community regulation, having direct effect in all EU member states. The regulation was challenged by several individuals and an organization, which were added to the UN sanctions list on the basis of their association with al Qaeda. The regulation was challenged on two grounds. First, the applicants claimed that the Community did not have the competence to adopt the contested regulation. In the second place, the applicants claimed that the Community regulation infringed their human rights (right to property, right of access to court). Thus the CFI was asked to determine to what extent it is competent indirectly to review measures adopted under the UN Charter. This delicate legal question is answered in a lengthy judgment, the legal reasoning of which is not always convincing.

scholarly journals An Analysis of Dynamic Changes in Selected Areas of Sustainable Development of the European Union Countries

2018 ◽  
Vol 18 (1) ◽  
pp. 93-107 ◽  
Author(s):  
Iwona Bąk ◽  
Katarzyna Cheba
Keyword(s):  
European Union ◽  
Sustainable Development ◽  
Methodological Approach ◽  
Point Of View ◽  
Reference Points ◽  
The European Union ◽  
Member States ◽  
The Sustainable Development ◽  
Eu Member States ◽  
The Individual

Abstract The aim of the study is to determine the pace and directions of changes (understood as: improvement or deterioration) occurring in selected areas of sustainable development of EU Member States. The paper analyzes dynamics of changes in selected areas of sustainable development monitored on the basis of headline indicators published by Eurostat from 2008 to 2015. In the paper, three variants of reference points of synthetic measure of development were considered. On the basis of the obtained results, the countries in which the improvement in the sustainable development and its deterioration can be observed were identified. The results have confirmed the existence of significant developmental disparities between EU Member States in this field, but it should be noted that the obtained results depend on the methodological approach both to the selection of features and the adoption of a specific standardization formula, as well as the considered variants of reference points. The results obtained can be utilized in subsequent years to examine the directions of change observed both from the point of view of European Union as one organization, and the individual EU Member States.

scholarly journals Contradictions in Frontex Operations: the Push-back

2020 ◽  
Vol 20 (4) ◽  
pp. 85-92
Author(s):  
Gábor Kemény ◽  
Michal Vít
Keyword(s):  
European Union ◽  
Human Rights ◽  
Influencing Factors ◽  
Fundamental Rights ◽  
Organisational Structure ◽  
The European Union ◽  
Council Of Europe ◽  
Member States ◽  
Eu Member States ◽  
The Eu

The aim of the paper is to introduce the legal misfits between the standards of human rights as stated by the European Union and the Council of Europe and practical day to day experience related to EU member states. For this purpose, the article focuses on political and legal assessment of the so-called pushbacks at the Greek-Turkish external border and introduces the influencing factors, such as the various interpretation of the legislation, differences in the organisational structure and values. Authors concluded that these factors are endangering the fulfilment of the fundamental rights and the efficiency of the border protection thus the security of the EU and its member states.

State aid for employment and competitiveness of the European Union countries - a legal and finance approach

2020 ◽  
Author(s):  
Piotr PODSIADLO
Keyword(s):  
European Union ◽  
Legal Regulation ◽  
State Aid ◽  
Point Of View ◽  
The European Union ◽  
Member States ◽  
Competition Mechanism ◽  
Eu Member States ◽  
Per Capita ◽  
New Jobs

Due to the imperfect functioning of labour markets in certain cases, State aid may be an appropriate instrument for creating new jobs and preserving existing ones. Legal regulation of the issue of State aid is an element of the competition mechanism protection, which was recognized in the Treaty on the Functioning of the European Union (TFEU). This paper discusses guidelines for implementation of art. 107–109 of the TFEU, from the point of view of State aid for employment. Statistical analysis was carried out on State aid granted by EU Member States in the period 2001–2018 – from the perspective of its impact on competitiveness of these countries. This should lead to verify the thesis that the amount of State aid granted by EU Member States for employment should be positively correlated with the size of the GDP per capita of these countries.

The agreement terminating intra-EU BITs: are its provisions on ‘New’ and ‘Pending’ Arbitration Proceedings compatible with investors’ fundamental rights?

2020 ◽  
Author(s):  
Gordon Nardell QC ◽  
Laura Rees-Evans
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
European Convention ◽  
Access To Justice ◽  
Bilateral Investment Treaties ◽  
The European Union ◽  
Member States ◽  
Legal Questions ◽  
The Status ◽  
Investment Treaties

Abstract On 5 May 2020, 23 Member States of the EU signed a plurilateral treaty with the purpose of terminating the nearly 130 Bilateral Investment Treaties (BITs) between them (the so-called ‘intra-EU BITs’) and the 11 sunset clauses that continue in effect in intra-EU BITs that have already been terminated. The treaty, entitled the ‘Agreement for the Termination of Bilateral Investment Treaties Between the Member States of the European Union’, marks the beginning of the next—but by no means the final—chapter in the controversy over the status of intra-EU BITs. In this article, we examine one of the many important legal questions raised by the Agreement; namely, whether its attempt to undercut arbitrations commenced well before the Agreement came into force, including those resulting in awards rendered before the Achmea judgment, is compatible with investors’ rights under the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. We argue that by purporting to deprive investors of the fruits of valid claims in this way, the Agreement infringes Article 1 of the First Protocol to the ECHR (‘A1P1’) and may also breach the rights of access to justice and a fair hearing under Article 6(1) (and their equivalents in the Charter).

Sharing Is Caring? Exploring the Relationship Between Preferences for Online Participation and Support for Solidarity Between EU Member States

2019 ◽  
Vol 63 (4) ◽  
pp. 523-537
Author(s):  
Verena K. Brändle ◽  
Olga Eisele
Keyword(s):  
European Union ◽  
Social Inclusion ◽  
Large Scale ◽  
Public Support ◽  
Burden Sharing ◽  
The European Union ◽  
Online Participation ◽  
Member States ◽  
Individual Level ◽  
Eu Member States

The article explores the influence of online participation on individual-level support for burden-sharing measures among EU member states. The analysis is set against the backdrop of the discussion about solidarity in times of EU crises and follows an innovative approach by operationalizing social inclusion in the European Union via online participation. It is argued that the specific nature of the European Union favors the use of online channels for political information and participation, but that despite its inclusive potential, online participation does not necessarily mean public support for the European Union. Instead, we hypothesize that people who make more use of online participation channels—thus are supposedly better equipped to participate in EU politics—are more critical in their evaluation of burden-sharing measures. Based on a large-scale survey among EU citizens in late 2016, we conduct a regression analysis taking into account the influence of EU support and general considerations on solidarity. Results lend support to our hypothesis that people who participate in political affairs online do not express greater support for EU burden-sharing measures but are more critical. Results are interpreted as an expression of the constraining dissensus regarding EU politics: Negative effects are read as criticism of how solidarity in the European Union is implemented, not as opposition to solidarity in the European Union as such.

Fundamental Rights and the Transformation of Governance in the European Union

2007 ◽  
Vol 9 ◽  
pp. 133-175 ◽  
Author(s):  
Olivier de Schutter
Keyword(s):  
European Union ◽  
Mutual Recognition ◽  
Fundamental Rights ◽  
Regulatory Competition ◽  
The European Union ◽  
Member States ◽  
Mutual Cooperation ◽  
Eu Member States ◽  
Charter Of Fundamental Rights ◽  
The Eu

It has been argued in many places, and in different forms, that the establishment between the EU Member States of an internal market, and now of an area of freedom, security and justice, requires the European Union to legislate in the field of fundamental rights, either in order to avoid a form of regulatory competition between the Member States or in order to ensure mutual trust allowing for mutual cooperation between judicial, police and administrative national authorities. ‘Negative integration’, in the form of the lowering of barriers to the movement of goods, services, persons and capital, or in the form of mutual recognition of judicial decisions or exchange of information between national authorities, should thus be followed with, or compensated by, ‘positive integration’, in the form of the setting of common standards applicable throughout the EU Member States. The EU Charter of Fundamental Rights, moreover, provides the baseline from which to act, since it represents a set of values which all the Member States have agreed to consider as fundamental. The question (so it would seem) is now that of implementing the Charter, by using the legal bases provided for in the treaties to the fullest extent possible.

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