Humanizing solidarity in European refugee law

2017 ◽  
Vol 24 (5) ◽  
pp. 721-739 ◽  
Author(s):  
Valsamis Mitsilegas

The article will put forward a proposal for a paradigmatic change that aims to ‘humanize’ solidarity by moving away from a concept of state-centred solidarity to a concept of solidarity centred on the individual. It will demonstrate how the application of the principle of mutual recognition in the field of positive asylum decisions – accompanied by full equality and access to the labour market for refugees across the European Union – can play a key role in achieving this paradigmatic change. The relationship between solidarity and mutual recognition will be analysed in four steps: by exploring the parameters of the principle of solidarity as currently expressed in European refugee law; by examining the development of state-centred solidarity in secondary European refugee law as articulated by the Dublin system; by critically evaluating attempts to contain state-centred solidarity in the Dublin system via imposing fundamental rights limits to automatic mutual recognition; and by examining ways in which the recognition of positive asylum decisions throughout the European Union can act as a catalyst for a paradigmatic change leading to a model of solidarity that is centred on the refugee.

Author(s):  
Isabel Paraíso ◽  
Florencio Vicente Castro ◽  
José Magno

Abstract:Societies are intrinsically linked to the existence of States. If their development depends on the individual conduct of each citizen, it is with the States’ coherence, in the application of the political matrix, that better societies are built. The relationship is circular. Citizenship is constituted by the bond between an individual and a territorial and political entity. The new concept of citizenship that the European Union has been spreading, not only seeks to enhance and improve the assurance of economic and social rights but it also ensures that the citizen feels like a part of the European integration process. Among the written legal norms and the European Union’s guidelines, and their implementation by the Institution of Sovereignty, there is a subjective space in the relationship, whose interpretation differs from what is formally written in legal diplomas. In this kinetic gap, the relationship is driven by the psychosocial contract, being that the individual’s attitudes and behaviours result from perceptions based on an interpretative framework that each one creates about a certain reality. The current study mainly aims to discuss the austerity measures implemented in societies governed by the fundamental principles of a State of democratic right and by the principle of subsidiarity. We strictly follow the principles of objective hermeneutic interpretation applied to the documents produced by the European Union on citizenship. Citizenship cannot be a characteristic of only some nations. Nor can it be political rhetoric, with illusion intentions from Institutions which, in the empty exercise of duties assigned by Society, renounce the general will by stripping them from their fundamental rights, freedom and assurances.Keywords: Society, Citizenship, European Union, Psychological Contract.Resumo:As Sociedades estão intrinsecamente vinculadas à existência dos Estados. Se o desenvolvimento destas depende da honorabilidade individual de cada um dos cidadãos, é com o exercício de coerência dos Estados, na aplicação da matriz política, que se edificam melhores Sociedades. A relação é circular. A cidadania constitui-se pelo vínculo entre um indivíduo e uma entidade territorial e política. O novo conceito de cidadania que a União Europeia tem vindo a disseminar não procura apenas aumentar e melhorar a garantia de direitos económicos e sociais empreende, também, que o cidadão se sinta parte do processo de construção europeia. Entre as normas legais escritas e diretrizes da União Europeia, e a aplicação das mesmas pelas Instituições de Soberania, há um espaço subjetivo na relação, cuja perceção das partes dista do que está escrito formalmente em diplomas legais. Neste hiato cinético a relação é orientada pelo contrato psicossociológico, sendo certo que as atitudes e comportamentos dos indivíduos resultam das perceções, estribadas num quadro interpretativo que cada um cria acerca de uma dita realidade. O presente estudo tem como propósito primordial trazer à colação a discussão de medidas de austeridade implementadas, em sociedades governadas pelos princípios fundamentais de um Estado de direito democrático e pelo princípio da subsidiariedade. Seguimos rigorosamente os princípios da interpretação da hermenêutica objetiva aplicada aos documentos produzidos pela União Europeia acerca da cidadania. A cidadania não pode ser apanágio de algumas nações. Tão pouco retórica política, de intenções fantasmagóricas, de Instituições que, no exercício opaco de atribuições confiadas pela Sociedade, renunciam à vontade geral numa desterritorialização de direitos fundamentais, liberdades e garantias.Palavras-chave: Sociedade, Cidadania, União Europeia, Contrato Psicológico.


2009 ◽  
Vol 2 (3) ◽  
pp. 257-284 ◽  
Author(s):  
Christof Mandry

AbstractThe self-understanding of the Europeans has been profoundly put into question since 1989, and during the EU reform process, 'Europe' was confronted by the task of describing itself anew. In this context, the debate about the significance of the religious patrimony took on a key position in the discourse. The broad public discussions of the preambles to the European Charter of Fundamental Rights and the Treaty establishing a Constitution for the European Union (ECT) indicate that the relationship between religion and political remains a controversial issue. The article argues that the 'preamble disputes' are part and parcel of the European Union's quest for a political identity and that the outcome of the identity debate—the self-description as a 'community of values'—deals in a specific way with this fundamental question.


Author(s):  
Lorna Woods ◽  
Philippa Watson ◽  
Marios Costa

This chapter examines the development of the general principles by the Court of Justice (CJ) to support the protection of human rights in the European Union (EU) law. It analyses the relationship of the general principles derived from the CJ’s jurisprudence to the European Convention on Human Rights (ECHR), and the European Charter of Fundamental Rights (EUCFR). It discusses the possible accession of the EU to the ECHR and the implications of Opinion 2/13. It suggests that although the protection of human rights has been more visible since the Lisbon Treaty and there are now more avenues to such protection, it is debatable whether the scope and level of protection has increased.


2019 ◽  
Vol 21 (5) ◽  
pp. 409-420
Author(s):  
Anna Podolska

Abstract There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings.


2019 ◽  
Vol 26 (3) ◽  
pp. 441-448
Author(s):  
Maria Antonia Panascì

This case note examines the judgment of Court of Justice of the European Union delivered in Joined Cases C-569/16 and C-570/16 Stadt Wuppertal v. Maria Elisabeth Bauer and Volker Willmeroth v. Martina Broßonn on 6 November 2018. It engages with the noteworthy aspects of the ruling, such as the horizontal direct effect of the Charter of Fundamental Rights of the European Union (the Charter), the relationship between primary and secondary law in the European Union legal order and the scope of application of the Charter.


2013 ◽  
Vol 15 ◽  
pp. 383-415 ◽  
Author(s):  
Christopher McCrudden

AbstractThis chapter examines the relationship between the methods that the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) use to decide disputes that involve ‘human’ or ‘fundamental’ rights claims, and the substantive outcomes that result from the use of these particular methods. It has a limited aim: in attempting to understand the interrelationship between human rights methodology and human rights outcomes, it considers primarily the use of ‘comparative reasoning’ in ‘human’ and ‘fundamental’ rights claims by these courts. It is not primarily concerned with examining the extent to which the use of comparative reasoning is based on an appropriate methodology or whether there is a persuasive normative theory underpinning the use of comparative reasoning. The issues considered in this chapter do some of the groundwork, however, that is necessary in order to address these methodological and normative questions.


2015 ◽  
Vol 11 (3) ◽  
pp. 482-511
Author(s):  
Stephen Brittain

European Convention on Human Rights and the European Union Charter of Fundamental Rights: relationship – Teleological method of interpretation of the European Court of Justice: meaning, justifications, and criticisms – Originalist method of interpretation: meaning, justifications, and criticisms – Original meaning of Article 52(3) of the Charter: text, drafting history, case law – Conclusion: case law of European Court of Human Rights not strictly binding on the Court of Justice of the European Union.


Author(s):  
Emily HANCOX

Abstract Article 6 Treaty on European Union sets out two sources of fundamental rights in the EU—the Charter and the general principles of EU law—without specifying a hierarchy between them. Even though the Charter became binding over a decade ago, the Court of Justice of the European Union (‘CJEU’) is yet to clarify unequivocally how these two sources interact. In this article I argue based upon the relevant legal framework that the Charter ought to replace the general principles it enshrines. This leaves a role for general principles in the incorporation of new and additional rights into the EU legal framework. Such an approach is necessary to ensure that the Charter achieves its aims in enhancing the visibility of the rights protected by EU law, while also providing the impetus for more coherent rights protection within the EU. What an extensive survey of CJEU case law in the field of non-discrimination shows, however, is that the CJEU has struggled to let its general principles case law go, potentially hampering the transformative potential of the Charter.


2019 ◽  
Vol 7 ◽  
Author(s):  
Marek Moška ◽  
Peter Plavčan

This text provides an overview of the international document on the Global Compact for Safe, Orderly and Regular migration, alongside other international documents, in particular issued by the European Union, on the recognition of professional qualifications. Comments on the individual provisions of the document are also provided in connection with possible application practice. It is based on the current state of migration in Europe and the world, and explains the causes and consequences, details of migratory waves and the consequences of non-compliance with legal regulations by individual states in this area. In addition, the Global Compact is characterized, and the positive impacts and the requirements on important facts that are crucial for migrants in the receiving states are outlined. The negative impacts of migration in the social, economic and cultural spheres are also described. The text lists one of the 23 objectives of the Global Compact, namely the development of skills and the mutual recognition of skills, qualifications and competences. It highlights the risks of recognizing education and qualifications from the point of view of regulated and unregulated professions in the Member States of the European Union. This issue is governed by special regulations. Finally, the European Union Member States are recommended to focus on the actual employability of migrants on their labour markets by focusing on language courses for migrants, social assistance and, in particular, on organizing specialized courses for migrants to carry out specific activities in the field of specific occupations with employers in unregulated professions. Of course, the performance of regulated migrant professions is also proposed when meeting the requirements. Key words: global framework, migration, recognition of professional qualifications, international document.


Author(s):  
Rainer Hofmann ◽  
Alexander Heger ◽  
Tamara Gharibyan

The relationship between the fundamental rights as laid down in the German Constitution and the fundamental rights contained in the Charter of Fundamental Rights of the European Union has been exceedingly conflict-prone ever since the early days of the European Union. Related thereto is the ongoing controversy on the judicial prerogative of the German Federal Constitutional Court (BVerfG) within that system. Thus, two big players in the European multi level system, i.e. the BVerfG and the European Court of Justice (ECJ), clash with their judicial powers and diverging interests. With its two recent decisions, 1 BvR 16/13 and 1 BvR 276/17 of November 6, 2019, the First Senate of the BVerfG introduced a far-reaching change in its approach of protecting basic rights by clarifying the relationship between the EU fundamental rights and the fundamental rights of the German Constitution. At the same time, the BVerfG has made a strong effort to maintain its position within the multilevel cooperation of the constitutional courts of EU member states, particularly in relation to the ECJ, which by both sides is referred to as a "cooperative relationship". This article explains the repercussions of the aforementioned judgments on the protection of fundamental rights in the European multi-level system.


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