Debating Human Rights in Europe: Legal and Policy-oriented Questions
This panel will consider legal and policy-oriented questions that have emerged over the last years regarding the protection of human rights in Europe (understood broadly, so as to cover both the European Union as well as the Council of Europe and the European Convention on Human Rights). The first two papers will primarily focus on the European Union and will discuss the possible connection between EU citizenship and fundamental rights, as well as the possibility to develop a coherent human rights-based EU common immigration and asylum policy. The latter two papers will primarily focus on the Council of Europe and the European Court of Human Rights, and will critically evaluate how the Strasbourg Court has addressed the increasing number and complexity of asylum claims based on one’s sexual orientation and then consider the possible impact of the entry into force of Protocol 15 ECHR on the Convention system and the Strasbourg Court.
Presentations of the Symposium
EU Citizenship and Fundamental Rights: Rethinking their Connection
Although citizenship rights are the rights of members qua citizens while human rights affirm the value of human dignity, I fully support a greater connectivity or reciprocal interdependence between EU citizenship and fundamental rights. EU citizenship and fundamental rights are contextually related, that is, situated within the emergence of a political European Union, but they are also normatively connected. In addition, the increased significance of one institution is conditioned by the increased significance of the other. Fundamental rights could thus be relied upon to affirm citizenship rights that have been violated when, for example, the Member States deny the family reunion of Union citizens by imposing requirements which are not present in the provisions of Directive 2004/38, and to strengthen citizens’ rights by limiting the discretion of the Member States when they derogate from free movement and EU citizenship. As regards the latter, fundamental rights provide additional layers of protection against the expulsion of EU citizens. Deepening and increasing the inter-connections between the Charter of Fundamental Rights and EU Citizenship create more opportunities for the enrichment of both institutions.
The Human Rights Dimension of EU External Asylum and Immigration Policy – The Case of Readmission Agreements
In recent years the European Union (EU) has been gradually developing a common European Immigration Policy in cooperation with third countries and to this end it has been building an external dimension of such policy.
The paper looks at the emergence and further development of the external dimension of EU immigration policy with a focus on readmission agreements. In this context it critically analyses the growing trend towards the informalisation of bilateral cooperation on readmission by examining their human rights impact and broader rule of law and accountability questions.
More generally, the paper questions whether it is possible to develop a coherent human rights-based EU common immigration and asylum policy given its highly fragmented legal framework.
An Exercise in Detachment: The Strasbourg Court and Sexual Minority Refugees
This contribution explores how the Council of Europe (CoE) – and the European Court of Human Rights (Strasbourg Court), in particular – have addressed the increasing number and complexity of asylum claims based on one’s sexual orientation. Although there are no reliable statistics on sexual orientation asylum claims, it is clear that thousands of the asylum seekers who arrive in Europe each year rely on their sexual orientation to present a claim for international protection. The law and policy produced by the CoE and the case law of the Strasbourg Court influence immensely how domestic authorities address sexual orientation asylum claims, so it is crucial to have a thorough understanding of this framework.
The Strasbourg Court was the first judicial instance at a European level to decide on cases relating to sexual orientation asylum claims. It has so far dealt with 21 separate cases of asylum on grounds of sexual orientation, three of which are currently awaiting a decision. Many of these cases led to contentious and disappointing decisions, such as the 2013 judgment in M.E. v. Sweden, which gave legitimacy to the idea that applicants can be sent back to their countries of origin and asked to be ‘discreet’ about their sexuality. This approach reflects a worrying detachment from the realities of sexual minorities in many countries around the world and from the individual experiences of sexual minority asylum seekers in Europe.
This paper thus critiques the CoE policy and Court’s case law in this field, whilst advancing policy and legal recommendations that address adequately the socio-cultural and sexual diversity of asylum-seekers and their intersectional experiences.
Margin of Appreciation and Subsidiarity: The Strasbourg Court post-Protocol 15 ECHR
As of January 2019, two states have not yet ratified Protocol 15 ECHR. When that Protocol enters into force, the Convention’s Preamble will be amended and a reference to the margin of appreciation doctrine and the subsidiarity principle will be included therein. It is well-known that notions of subsidiarity and deference have generated substantial attention over the last few years, during which time the question of the legitimacy of the Strasbourg Court emerged as one of the most debated (and, often, controversial) topics. The Copenhagen Declaration of April 2018 confirms that at least some of the contracting parties are not prepared to abandon efforts to limit the jurisdictional realm of the Court. In this context, the paper will argue that i) Protocol 15 ECHR will have implications for the Convention system; ii) albeit not in the direction that some of the critics of the Strasbourg Court might have anticipated, since it will leave the ECtHR in a relatively strong position despite the amendments in the Preamble; iii) yet it will also incite the Court to provide clearer definitions on the margin of appreciation, as well as on its relationship with European consensus.