Foreigners: Wanted Dead or Alive?

2016 ◽  
Vol 18 (4) ◽  
pp. 409-441
Author(s):  
Céline Bauloz
Keyword(s):  
European Union ◽  
Human Rights ◽  
Premature Death ◽  
Integrated Approach ◽  
International Human Rights Law ◽  
The European Union ◽  
Human Rights Law ◽  
European Court ◽  
The One ◽  
Seriously Ill

While non-refoulement is an absolute principle of international human rights law, its application to seriously ill individuals exposed to premature death and physical and mental suffering because of the substandard medical system in their country of origin seems to have followed a double standard in Europe. On the one hand, medical cases are increasingly treated at the margin of the non-refoulement principle by the European Court of Human Rights, being only covered in highly exceptional cases. On the other hand, seriously ill individuals have been excluded from the scope of subsidiary protection in the European Union as confirmed by the Court of Justice of the European Union. Against such restrictive interpretations, the present article calls for an integrated approach where all non-refoulement claims, including those on medical grounds, are to be assessed along the same criteria so as to ensure seriously ill individuals a genuine right to live in dignity.

Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law

2013 ◽  
Vol 7 (1) ◽  
pp. 47-71 ◽  
Author(s):  
Yuval Shany
Keyword(s):  
Human Rights ◽  
Functional Approach ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
European Court ◽  
Normative Significance ◽  
International Human ◽  
The One ◽  
Relations Of Power

Abstract International human rights law (IHRL) has struggled to define a standard for determining the extraterritorial applicability of its norms that would reconcile the ethos of universal entitlement, on the one hand, with the centrality of borders in delineating state powers and responsibilities under international law, on the other hand. The case law of the UN Human Rights Committee and the European Court of Human Rights (ECtHR) favors barring states from engaging in conduct outside their borders that would be impermissible if undertaken inside their borders. Still, attempts to demarcate the precise scope of extraterritorial application through allusion to degrees of control over individuals or areas, or by the nature of the obligation itself – have led to unsatisfactory, if not arbitrary results. This article opines a move to functionalism as the basis for extraterritorial applicability – requiring states to protect IHRL in situations they can do so. Under this approach, which takes universality seriously, borders lose much their normative significance. I suggest limiting the functional approach to extraterritorial applicability in accordance with two key notions: (1) the intensity of power relations – factual relations of power entailing direct, significant and foreseeable potential impact – should result in the application of IHRL obligations; or, alternatively, (2) special legal relations – relations of power that put the state in a unique legal position to afford IHRL protection would also justify the imposition of extraterritorial obligations.

scholarly journals PERLINDUNGAN HUKUM HAK ASASI MANUSIA INTERNASIONAL TERHADAP IMIGRAN SURIAH

Yustitia ◽  
2021 ◽  
Vol 7 (2) ◽  
pp. 148-158
Author(s):  
Mentari Jastisia
Keyword(s):  
European Union ◽  
Human Rights ◽  
Asylum Seekers ◽  
European Convention ◽  
International Human Rights Law ◽  
The European Union ◽  
Human Rights Law ◽  
International Human Rights ◽  
The Status ◽  
International Human

Immigrants are people who have fled from their country to other countries where they can be referred to as refugees or asylum seekers. There are legal instruments that regulate and provide protection for them. Arrangements for asylum seekers are contained in the 1967 Declaration of Territorial Asylum, State practice, humanitarian issues, Declaration of Human Rights (UDHR). Meanwhile, the arrangements for refugees are contained in the Convention Relating to the Status of Refugees 1951, Protocol relating to the status of Refugees 1967, International Covenant on Civil and Political Rights (ICCPR). This papers uses a normative juridical method. This juridical approach is because this research analyzes existing legal aspects, and is normative because this research focuses more on the analysis of existing laws and regulations and other regulations, using secondary data, namely scientific references or other scientific writings as study material that can support the completeness of this scientific papers. Regarding legal protection for Syrian immigrants, the same applies to immigrants from other state as regulated in the arrangements that have been regulated. Countries in the European Union implement international human rights law protections for Syrian immigrants residing in European Union countries consistently as mandated in the European Convention on Human Rights, Convention applying the Schengen Agreement dated June 14, 1985, Lisbon treaty, Dublin II Regulation (Council Regulation (EC) 343/2003) 2003. The indication is that there are several countries in the European Union such as Greece, Hungary which refuse and do not want to take more responsibility for their obligations as a State related to the provisions of international human rights law to provide protection for Syrian immigrants. in Europe

scholarly journals EU, Trading and human rights: consistent framework?

2021 ◽  
pp. 244-260
Author(s):  
Carolina Jiménez Sánchez
Keyword(s):  
European Union ◽  
Human Rights ◽  
Negative Impact ◽  
International Human Rights Law ◽  
The European Union ◽  
Human Rights Law ◽  
The Relationship ◽  
Human Rights Violation ◽  
The Eu

The relationship between European Union and International Human Rights Law has not always been close. The global projection of the EU, specially, its interest in becoming a leader in international trade, is facing its negative impact in some territories, specially those affected by human rights violation or negation of fundamental rules of International Law, such as ius cogens self-determination of people. This paper will examine to what extend the practice of the European Union trading with occupying and administrative powers in some territories could jeopardise its compliance with its own values and principles.

Equality and Affirmative Action in International Human Rights Law and its Relevance to the European Union

2000 ◽  
Vol 4 (1) ◽  
pp. 3-45 ◽  
Author(s):  
Ursula O'Hare
Keyword(s):  
Human Rights ◽  
Affirmative Action ◽  
International Human Rights Law ◽  
The European Union ◽  
Human Rights Law ◽  
Community Law ◽  
Court Of Justice ◽  
European Court ◽  
Positive Action ◽  
Human Rights Norms

Human rights norms have played an increasingly important role in recent equality cases before the European Court of Justice, including the Marschall case on positive action. This paper aims to contribute to the positive action debate in Community law by exploring the meaning of the equality principle in human rights law and outlining the potential relevance of the human rights approach to affirmative action for the development of the equality principle in Community law. The paper suggests that the equality principle in human rights law, not only permits, but arguably may, in certain circumstances, require states to adopt affirmative action in fulfilment of their obligations to respect the equality principle. Human rights law thus represents a valuable resource upon which the Court could draw in developing the equality principle in Community law. Should the Court have regard to human rights law in framing the future scope of the equality principle in Community law this may result in a bolder approach to positive action in Community law than hitherto adopted by the Court. The paper, however, also recognises the limits of human rights law and concludes with an assessment of those steps which the international community may need to take if the Court is to be expected to draw upon human rights norms in informing its interpretation of Community equality law.

International Human Rights Law and Blockade

2018 ◽  
Author(s):  
Phillip Drew
Keyword(s):  
Human Rights ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
European Court ◽  
Power And Control ◽  
International Human ◽  
Extraterritorial Jurisdiction ◽  
And Control

The years since the beginning of the twenty-first century have seen a significant incursion of international human rights law into the domain that had previously been the within the exclusive purview of international humanitarian law. The expansion of extraterritorial jurisdiction, particularly by the European Court of Human Rights, means that for many states, the exercise of physical power and control over an individual outside their territory may engage the jurisdiction of human rights obligations. Understanding the expansive tendencies of certain human rights tribunals, and the apparent disdain they have for any ambiguity respecting human rights, it is offered that the uncertain nature of the law surrounding humanitarian relief during blockades could leave blockading forces vulnerable to legal challenge under human rights legislation, particularly in cases in which starvation occurs as a result of a blockade.

scholarly journals Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions

2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
Author(s):  
Mattias Derlén ◽  
Johan Lindholm
Keyword(s):  
European Union ◽  
Case Law ◽  
Three Dimensions ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Number Of Factors ◽  
The One

AbstractThe case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

scholarly journals Castaño avoids a clash between the ECtHR and the CJEU, but erodes Soering. Thinking human rights transnationally

2020 ◽  
pp. 203228442097974
Author(s):  
Sibel Top ◽  
Paul De Hert
Keyword(s):  
European Union ◽  
Human Rights ◽  
Union Member ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Criminal Matters ◽  
European Union Member States

This article examines the changing balance established by the European Court of Human Rights (ECtHR) between human rights filters to extradition and the obligation to cooperate and how this shift of rationale brought the Court closer to the position of the Court of Justice of the European Union (CJEU) in that respect. The article argues that the ECtHR initially adopted a position whereby it prioritised human rights concerns over extraditions, but that it later nuanced that approach by establishing, in some cases, an obligation to cooperate to ensure proper respect of human rights. This refinement of its position brought the ECtHR closer to the approach adopted by the CJEU that traditionally put the obligation to cooperate above human rights concerns. In recent years, however, the CJEU also backtracked to some extent from its uncompromising attitude on the obligation to cooperate, which enabled a convergence of the rationales of the two Courts. Although this alignment of the Courts was necessary to mitigate the conflicting obligations of European Union Member States towards both Courts, this article warns against the danger of making too many human rights concessions to cooperation in criminal matters.

Fixing, Adjusting, Regulating, Protecting Human Rights - The Shifting Uses of Regularisations in the European Union

2011 ◽  
Vol 13 (3) ◽  
pp. 297-316 ◽  
Author(s):  
Albert Kraler
Keyword(s):  
European Union ◽  
Human Rights ◽  
Legal Status ◽  
The European Union ◽  
Human Rights Law ◽  
Irregular Migrants ◽  
National Human ◽  
Almost All ◽  
Human Rights Based Approach ◽  
The Eu

AbstractAlmost all Member States in the European Union currently make use, or in the past have made use of some form of regularisation of irregular immigrants, although to greatly varying degrees, in different ways and as a rule only reluctantly. A distinct feature of recent regularisations has been the shift towards a humanitarian justification of regularisation measures. In this context, regularisation has become reframed as an issue of the protection of irregular migrants’ human rights. As a result, regularisation has to some extent also been turned from a political tool in managing migration into an issue of international, European and national human rights law. While a human rights framework indeed offers a powerful rationale and at times compelling reasons why states ought to afford a legal status to irregular migrants, I argue that a human rights based approach must always be complemented by pragmatic considerations, as a human rights based justification of regularisation alone will be insufficient to find adequate responses to the changing presence of irregular migrants in the EU, not all of which can invoke human rights based claims to residence.

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