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121. European Asylum Law and the ECHR: An Uneasy Coexistence

Author:
Laurens Lavrysen
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
During the last two decades the European Union has become a major actor in the field of asylum law. Meanwhile, human rights law, in particular the European Convention on Human Rights (ECHR), has become of paramount importance in this field. This paper highlights certain areas of concern in the European Asylum System from the viewpoint of the ECHR. It particularly focuses on the Dublin II Regulation, the reception conditions and the detention of asylum seekers.
Topic:
Human Rights and Law
Political Geography:
Europe and Dublin

122. They Entered without any Rumor. Human Rights in the Belgian Legal Periodicals

Author:
Sebastiaan Vandenbogaerde
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Legal periodicals offer an opportunity to gaze on the daily pursuits of legal practitioners. By measuring the attention on a certain topic, it is possible to retrace to what extent it was deemed to be important for Belgian jurists. In this particular paper, a closer look will be taken at human rights and their relevance for Belgian legal practice. Therefore, research will be done in one of the most influential periodicals in Flanders: the Rechtskundig Weekblad. The attention on human rights, and more specific the European Convention of Human Rights, can give an impression of the importance of these rights for Belgian, and more specific, Flemish legal practice. As this periodical was preoccupied with the Flemish movement, its 'ideology' also affected its reporting of human rights. Thus, legal periodicals can be found at the crossroads of all actors in the legal world.
Topic:
Human Rights
Political Geography:
Europe

123. The EU Charter of Fundamental Rights and its Impact on Labor Law: a Plea for a Proportionality-Test "Light"

Author:
Herman Voogsgeerd
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Traditionally, fundamental human rights have occupied an important place in labor law. The ILO constitution of 1919 focuses, for example, on the right of freedom of association. Subsequent ILO documents stress other fundamental rights such as the right to non-discrimination in the field of labor. The fundamental rights of the worker did begin to get some attention in the EU too, especially in non-binding documents such as the Community Charter of the Rights of the Worker from 1989. Since the entry into force of the Treaty of Lisbon in 2009, the Charter of Fundamental Rights introduced at the summit in Nice is legally binding to the same extent as the EU Treaty itself. The Charter includes fundamental rights in the field of labor law under the heading 'solidarity'. In this article two basic questions will be addressed. The first question will address the 'old' issue of the clash between fundamental (labor) rights and the four economic freedoms of the EU, which are seen by the ECJ as of fundamental nature as well. Since the seminal cases of Viking and Laval, a lot has been written about this theme by both European and labor lawyers. I will not revisit the literature that has been written about these cases, but the more dogmatic issue of a (potential) clash between the four economic freedoms and the fundamental rights is still in need of clarification. The second question is whether the fundamental human rights will get a more important place in the case law of the European Court of Justice now that the Charter of Fundamental Rights is of binding character, or, will there be just a continuation of the already developed relationship between fundamental freedoms and rights or between two different kind of fundamental human rights? I will focus here on case law in the field of labor law. The article will finish with a plea for a proportionality test 'light' in order to limit the interference of EU law with the essence of fundamental rights.
Topic:
Economics, Human Rights, and Law
Political Geography:
Europe

124. Young Minds Rethinking the Mediterranean

Author:
Nihan Akıncılar, Anna Alexieva, Jennifer Brindisi, Evinç Doğan, Amanda E. Rogers, and Beatrice Schimmang
Publication Date:
12-2011
Content Type:
Book
Institution:
Global Political Trends Center
Abstract:
In this paper, Europeanization of minority rights in Turkey will be explained in detail and in the conclusion part, it will be compared and contrasted with the Europeanization of minority rights in Greece. In this comparison, it is difficult to compare and contrast the mechanisms of Europeanization in Turkey and Greece because these mechanisms are suitable for the member states of the European Union (EU). For the candidate countries, the question of “how it is Europeanized” can be only answered with conditionality. Therefore, instead of trying to adapt Turkey in the case of minority rights to the mechanisms of Europeanization for the member states, in this study, it will be dealt with how the EU matters in affecting the minority rights protection in candidate and member states. Therefore, what this study implies when it is expected to explain Europeanization of mi`nority rights in Turkey is not to handle this case through the Europeanization theories, but how the EU affects the candidate countries through conditionality.
Topic:
Conflict Resolution, Conflict Prevention, Foreign Policy, Political Violence, Human Rights, War, and Political Theory
Political Geography:
Europe, Turkey, and Greece

125. Aida Torres Pérez. Conflicts of Rights in the European Union. A Theory of Supranational Adjudication

Author:
Constantin von der Groeben
Publication Date:
02-2011
Content Type:
Journal Article
Abstract:
Aida Torres Pérez' Conflicts of Rights in the European Union. A Theory of Supranational Adjudication 1 is a comprehensive monograph dealing with one of the most striking normative challenges in the European Union (EU): the relationship between the European Court of Justice (ECJ) and Member State courts in adjudicating fundamental rights. Torres Pérez presents the existing spheres of fundamental rights protection in the EU and provides a thorough analysis of the conflicts that emerge where these different spheres overlap. Her volume covers a number of different approaches and provides suggestions on how to deal with these conflicts and eventually proposes a normative model for ECJ adjudication through judicial dialogue based on comparative constitutional reasoning. The book is well structured in three parts. The first part gives a brief but thorough overview of the different systems of fundamental rights protection open to EU citizens. The author describes these different systems as the multilevel protection of rights in Europe and distinguishes between human rights protection through national constitutions (constitutional rights), through the ECJ (EU fundamental rights) and through the European Convention on Human Rights (convention rights). She outlines the conflicts that arise when these different systems of fundamental rights protection overlap. In general, such conflicts may arise when different rights are considered to be fundamental (at 10) and where community members disagree regarding fundamental rights interpretation (at 11), especially concerning sensitive issues like abortion or affirmative action (at 16). A potential for conflict exists whenever states act within a field of application of EU law which includes two types of situations: (i) state acts implementing EU law, and (ii) state acts derogating from the EU basic freedoms of movement (at 16). An example of a rights conflict between German courts and the ECJ is the 'banana saga', where the courts disagreed on …
Topic:
Human Rights and Governance
Political Geography:
Europe

126. The Ethos of Europe: Values, Law and Justice in the EU

Author:
Dario Castiglione
Publication Date:
04-2011
Content Type:
Journal Article
Journal:
Insight Turkey
Institution:
SETA Foundation for Political, Economic and Social Research
Abstract:
Although the analysis offered in this book is not very innovative in its details, the overall project is of some originality. Andrew Williams's main contention is that the EU project has developed its own institutional ethos, and that this is the product of both the entrenchment in European public discourse of a number of values, and of the way in which the European legal system (and its underlying philosophy) promotes and protects such values. Williams, however, is critical of the particular ethos that to date has supported the EU polity since he finds it partly incoherent in the articulation of its central values, and relatively uncommitted in the way in which it sustains them. The ethos's incoherence lies, in his view, in the way in which the values at the heart of the EU project are both ambiguous and indeterminate; while the lack of commitment is the product of the half-hearted way in which the institutional framework (in particular European law) supports a public philosophy for Europe, while functioning more as a prop for European governance.
Topic:
Human Rights
Political Geography:
Europe

127. Fighting Maritime Piracy under the European Convention on Human Rights

Author:
Stefano Piedimonte Bodini
Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
On the basis of real examples of anti-piracy operations conducted in the Indian Ocean by European navies, the article examines the legal implications of such military actions and their judicial medium- and long-term consequences in the framework of the European Convention on Human Rights. The only existing authority directly addressing maritime piracy, although from the sole perspective of state jurisdiction, is the recent Grand Chamber judgment in Medvedyev and Others v. France. The Court's approach and conclusions in Medvedyev will be analysed in section 2. Section 3 will explore other important issues likely to be raised under the Convention by anti-piracy operations. Section 4 will consider the question of state responsibility, i.e., jurisdiction and attribution, in the context of anti-piracy operations carried out on the high seas or on the territory of third states.
Topic:
Human Rights and International Law
Political Geography:
Europe

128. Rights at the Frontier: Border Control and Human Rights Protection of Irregular International Migrants

Author:
Julian M. Lehmann
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In light of recent events causing people's movement into Europe, continued misuse of the term “migrant” in policy making and public discourse, and at the occasion of events celebrating the international regime of refugee protection, the human rights protection of irregular migrants is explored in relation to irregular migrants' entry/admission and expulsion/deportation. The term “migrant” has, in contrast to the term “refugee”, no bearing on whether or not an international migrant has a need for international protection. While many irregular migrants have no such need, other migrants may be refugees or be in need of international protection “outside” the framework of the 1951 Convention relating to the Status of Refugees. The paper analyses the international human rights law framework applying to individuals with and without need for international protection, when their claims have a socio-economic dimension. The principle of non-refoulement remains the most important source of protection for irregular migrants; it is not concerned with the irregular status of a migrant and also has a bearing on procedural rights in status determination. Socio-economic motivations for flight are not a bar to being a refugee within the meaning of the 1951 Convention, if their underlying cause is persecution, or if motives are mixed. Refugee law can accommodate such claims and overcome a strict dichotomy but is currently only rarely and restrictively applied in this regard. In expulsion cases, virtually only the prohibition of torture, inhuman or degrading treatment is relevant. For individuals that have no need for international protection there are mitigating individual circumstances which a state has to take into account. All pertinent norms of international human rights law apply without distinction and irregular migrants may have, just as refugees may have, humanitarian needs that states should meet.
Topic:
Human Rights
Political Geography:
Europe

129. Complementary Protection for Victims of Human Trafficking under the European Convention on Human Rights

Author:
Vladislava Stoyanova
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The international legal framework regulating the problem of human trafficking contains the presumption that the return of victims of human trafficking to their countries of origin is the standard resolution for their cases. However, victims might have legitimate reasons for not wanting to go back. For those victims, resort to the legal framework of the European Convention on Human Rights could be a solution. I elaborate on the protection capacity of Article 3 when upon return victims face dangers of re-trafficking, retaliation, rejection by family and/or community and when upon return to the country of origin victims could be subjected to degrading treatment due to unavailability of social and medical assistance. In light of the Rantsev v. Cyprus and Russia case, I develop an argument under Article 4 that states cannot send victims to those countries which do not meet the positive obligations standard as established in the case. Article 8 could be relevant: first, when the level of feared harm in the country of origin does not reach the severity of Article 3 but is sufficiently grave to be in breach of the right to private life and engage the non-refoulement principle, and second, when the victim has developed social ties within the receiving state and the removal will lead to their disruption.
Topic:
Human Rights
Political Geography:
Russia and Europe

130. A Tradition in Delivering Injustice: Judiciary and Rights in Turkey

Author:
Necati Polat
Publication Date:
10-2011
Content Type:
Journal Article
Journal:
Insight Turkey
Institution:
SETA Foundation for Political, Economic and Social Research
Abstract:
This piece is on a number of critical rulings issued recently by high courts in Turkey in brazen disregard of the discourse of human rights, to which a growing commitment appears paradoxically to be the case in democratic politics. The bureaucratic authority that characterizes the dissipating old regime in the country is often associated with the military. Yet the civilian bureaucracy, in particular the high judiciary, with justices long handpicked from among the legal elite with a disdain of democratic politics, has been just as crucial in sustaining the old order molded by anachronisms of the 1930s, when the regime that defines this order, Kemalism, emerged in concerted thinking with authoritarianisms prevalent in Europe at the time. The overhaul of the system of high courts from 2010 has clearly been momentous in seeking to bring the judicial establishment into line with democracy and human rights. Still, the settled reflexes seem on the whole to be resilient in dictating the outcome in crucial cases, rendering the transformation both sluggish and painful.
Topic:
Human Rights and Politics
Political Geography:
Europe and Turkey