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6020 results in European government, politics and policy

Page 87 of 301

  • 3 - Establishing Responsibility?

  • from Part I
  • Moritz Baumgärtel, Universiteit Utrecht, The Netherlands
  • Book:
    Demanding Rights
    Published online:
    03 May 2019
    Print publication:
    09 May 2019, pp 46-80

  • Summary

    This chapter deals with some of the most acclaimed judgments of the European courts as it evaluates three cases that are concerned with the controversial returns of asylum seekers under the EU’s Dublin Regulation, whose main features will shortly be introduced. As will become clear in the detailed analysis of M.S.S., the ECtHR engaged in active law development by challenging the presumption that such transfers are per se in accordance with human rights standards. However, other rulings including notably the CJEU’s decision in N.S. and M.E. undermined this progress temporarily, requiring the ECtHR to reaffirm its stance once again in Tarakhel. While all three cases display a high degree of strategic orientation, their systemic impact of these judgments has been relatively limited to a moratorium regarding transfers to Greece. The evaluation of case-specific effectiveness in this area relates mostly to specific cases or to instances with similar sets of facts and is achieved either through the executive or the domestic judiciary rather than through legislative amendments.

  • 7 - Migrant Rights as Existential Commitments

  • from Part II
  • Moritz Baumgärtel, Universiteit Utrecht, The Netherlands
  • Book:
    Demanding Rights
    Published online:
    03 May 2019
    Print publication:
    09 May 2019, pp 137-153

  • Summary

    This chapter proposes that a reconceptualization of human rights is needed for migrant rights to become a reality in Europe. It begins with a brief presentation of scholarship that, based on societal arguments related to dependency, identity and costs, has drawn attention to the inherently uncertain character of migrant rights. As answers to these objections can be found neither in approaches that solidify human rights as law nor in those that equate it to social norm, this chapter draws on recent works that have conceptualised human rights as existential commitments, adding to their phenomenological account a perspective of human rights as self-conception held by persons and societies. Depending on their identity, human rights can be more or can be less demanding. The final section of this chapter refocuses on the legal sphere and, more specifically, on the principle of vulnerability. The argument is that vulnerability conceived as a ‘socially induced’ condition could be used to reconnect legal and existential human rights commitments that exist in Europe, thus offering the European courts a tool to promote migrant rights in line with the expectations held by society.

  • 6 - From Strategic to Consolidating Litigation

  • from Part II
  • Moritz Baumgärtel, Universiteit Utrecht, The Netherlands
  • Book:
    Demanding Rights
    Published online:
    03 May 2019
    Print publication:
    09 May 2019, pp 121-136

  • Summary

    This chapter focuses on migrant rights defenders in the context of migrant rights litigation, addressing the question of whether strategic actions in Europe can be optimised against the background of the demanding character of migration rights. Offering a broad review of the literature, it firstl defines some of the characteristics and constraints inherent in strategic litigation. Based on these parameters, it then explores the issue of case selection, using insights from the first part of the book to illustrate how cases arise in practice and how such modalities entail sometimes positive, sometimes negative consequences for migrants and their defenders. Another important aspect dealt with in this chapter is consolidating actions to be taken both at the national and the European levels, their objective being the optimal ‘exploitation’ of existing case law. Finally, the attention turns to tactics that actively ‘set the stage’ of litigation to enhance the judicial and that could reinforce the reputational capital of the European courts.

Page 87 of 301