Whither, the EU Charter of Fundamental Rights
So, has the Charter come of age, now that it is nearing its quarter century, and has been binding in force for nearly 15 of those years. No longer is the Charter a “sleeping beauty”, and no longer are fundamental rights mere epiphenomena in EU law – offshoots framed in the amorphous category of “general principles of law” – creations of the EU’s earlier desire for legitimacy in its quest for greater integration. The EU Charter contains the essence of a common language, a currency that all can understand. And the EU is better with it than without it.
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Solidarity Crimes, Legitimacy Limits
The criminalisation of humanitarianism has become pervasive in the EU over the last two decades. Overbroad definitions of the crimes of facilitation of irregular entry, transit and stay produce well known noxious effects on the human rights of migrants and civil society organisations. Nevertheless, the tendency has been to tighten the rules rather than contesting the EU’s failure to pursue a migration control system that is ‘fair towards third-country nationals’ and constructed ‘with respect for fundamental rights.’ In this blogpost, I argue that the EU legislator’s disregard for the human rights impacts of the facilitation regime constitutes an abuse of power. Legislative measures that have the effect of subverting legally enshrined principles (Arts 2, 6 & 21 TEU) and suppress the rights of civil society and the migrants with whom they engage are incompatible with core democratic premises.
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Gender, Equality, and the Predicaments of Faith
In the context of the rise of the global right, feminist debates on gender and sexual rights can and have at times slipped into a left and right ideological divide. In reflecting on the ways in which gender equality has been addressed in the context of Indian constitutional law over the past two decades, what emerges is a more complex picture.
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The EU’s Eastern Border and Inconvenient Truths
The Russian invasion of Ukraine in February 2022, alongside with the EU’s confrontation with Russia’s ally Belarus, however, has deeply impacted the securitisation of migration within the EU. Highly politicised conflict-related securitisation narratives have rarely found their way so swiftly into Member States’ domestic migration and asylum laws, leading to open and far-reaching violations of EU and international human rights law. Hardly ever before have ill-defined concepts and indiscriminate assumptions been so broadly accepted and used to shift from an individual-focused approach to blanket measures stigmatising, dehumanising and excluding entire groups. And rarely before have radical changes of this kind received so little criticism - a deeply unsettling and dangerous trend.
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Trading Rights for Responsibility
The newly published compromise text of the Asylum Procedures Regulation (APR) suggests to render border procedures mandatory in some cases, while also permitting first-entry states to derogate from them once their “adequate capacity” is reached. This adaptable approach to the use of border procedures seeks to resolve a long-standing disagreement between central EU countries and first-entry states. While the former consider the obligatory use of border procedures necessary to prevent onwards or ‘secondary’ movement of asylum-seekers, southern EU states argue that their mandatory use would place a further strain on their resources and overburden their capacities for processing asylum claims. This blogpost first explains the problems with border procedures, reviews their role in increasing responsibility of first-entry states, and explains why the new compromise Draft is unlikely to resolve the disagreement between first-entry states and other Members States.
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The European Legal Architecture on Security
As the European legal architecture on internal security is being built around large-scale databases, AI tools and other new technologies, the relationship between the public and private sectors has become increasingly complex. We examine one aspect of the Court of Justice of the European Union’s recent judgment in Ligue des droits humains, namely the data protection rules applicable to cooperation between the public and private entities in personal data sharing. The judgment enhances the ‘personal data autonomy’ of individuals and requires public authorities to justify to a high standard any obligations it seeks to place on the private sector to share personal data related, directly or indirectly, to travel by air.
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Playing Hide-and-seek with UK’s Parliamentary Supremacy
The ambiguous status of ‘retained EU law’ – this new category of domestic law consisting of the EU law applicable in the United Kingdom until 31 December 2020 – led the UK government to draft the Retained EU Law (Revocation and Reform) Bill, known also as the Brexit Freedoms Bill (‘the Bill’), with the promise to align retained EU law with ‘the UK’s priorities for unlocking growth’. It is the most recent effort of the government to achieve what it has not achieved so far: to scrap the supremacy of EU law once and for all or, to put it differently, to restore the supremacy of the UK Parliament. However, rather than restoring, the government’s legislative proposal threatens the fundamental principle of the UK’s constitution.
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A Second Scottish Independence Referendum in the UK Supreme Court
On October 11 and 12 an important case was argued in the UK Supreme Court over whether the Scottish Parliament has the competence to enact an independence referendum Bill. The Lord Advocate, Dorothy Bain KC, the principle Law Officer for the Scottish Government, brought a reference to the Supreme Court under the Scotland Act 1998 Schedule 6 paragraph 34. Even though the prospects for the case are unencouraging, an independence referendum is only one limb of the Scottish Government’s planned strategy for independence.
Continue reading >>What Monitoring for Fundamental Rights at EU Borders?
The legal and structural problem of fundamental rights protection and its monitoring at the EU’s external borders in the context of border police operations is high on the EU political and legislative agenda at the moment. In this blog I argue that a truly independent system for monitoring human rights compliance at EU borders must be established which is the responsibility of state bodies, building on existing entities such as Ombudspersons, National Human Rights Institutions, National Preventive Mechanisms. The border monitoring activities must be coordinated across Member States and the competent monitoring bodies must have access to their sister bodies in relevant third countries.
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When National Laws and Human Rights Standards Are at Odds
The UK Government’s agenda to erode human rights and to disentangle the UK from its European partners has now been fully materialised. Soon after Brexit, the UK Government announced its intention to replace the Human Rights Act, which incorporates the rights set out in the ECHR into domestic law, with a British Bill of Rights. The replacement draft Bill of Rights is now being considered by Parliament. Although the draft Bill confirms that the catalogue of rights remains the same, it introduces many significant changes. The draft Bill will water down, not strengthen, human rights protection in the UK.
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The European Union and Preventive (In)Justice
The expansion of the EU counter-terrorism acquis has signified what I have called the preventive turn in European security policy. Preventive justice is understood here as the exercise of state power in order to prevent future acts which are deemed to constitute security threats. There are three main shifts in the preventive justice paradigm: (i) a shift from an investigation of acts which have taken place to an emphasis on suspicion; (ii) a shift from targeted action to generalised surveillance; and, underpinning both, (iii) a temporal shift from the past to the future.
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Die Europäische Union und präventive (Un-)Gerechtigkeit
Die Ausweitung der EU-Befugnisse im Bereich der Terrorismusbekämpfung steht für die präventive Wende in der europäischen Sicherheitspolitik. Unter Präventivjustiz wird hier die Ausübung staatlicher Macht verstanden, um zukünftige Handlungen zu verhindern, die als Sicherheitsbedrohung angesehen werden. Im Paradigma der Präventivjustiz gibt es drei Hauptverschiebungen: (i) eine Verlagerung von der Untersuchung von Handlungen, die stattgefunden haben, hin zu einer Betonung des Verdachts; (ii) eine Verlagerung von gezielten Maßnahmen hin zu allgemeiner Überwachung; und, was beide untermauert, (iii) eine zeitliche Verlagerung von der Vergangenheit in die Zukunft.
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