| 18821. |
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| 18822. |
- Stoyanova, Vladislava
(författare)
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Inherent Instability or Tipping of the Balance: Populism, Immigration and Liberal Democracies
- 2021
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Ingår i: Migrants' Rights, Populism and Legal Resilience in Europe.
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Bokkapitel (refereegranskat)abstract
- This chapter investigates how the challenging questions and tensions caused by migrants and their universalist claims for inclusion, have been approached and resolved in liberal democracies. By regarding the development of populism as a real and dangerous political phenomenon that has a significant traction, the chapter asks whether populism adds something new to this approach and resolution. More specifically, does populism adds some distinctiveness that we should be more sensitive to?To address these questions, I first describe some inherent instabilities in liberal democracies and accepts that populism is a response to these instabilities. The rights of migrants have been a site for contestation and tension in this way also exposing the instabilities in liberal democracies. In particular, the question how inclusive or exclusive the bounded national community should be, has always been contestable. By zooming in on the case law of the European Court of Human Rights, the chapter then examines three areas where migrant’s universalist claims for inclusion have been addressed in human rights law. With reference to the requirement that the state has to provide justifications for measures that affect individuals, the paper asks how the tensions between exclusion versus inclusion and particularism versus cosmopolitanism, have been adjusted. It concludes that the adjustment has been in favour of exclusion and particularism. The concern that arises then is that populism might further shape this adjustment to the point where the balance is completely tipped in favour of exclusion and statism. Finally, the chapter draws on Dora Kostakopoulou’s work to explain that the question how inclusive or exclusive the bounded national community should be is a question that does not only concern the demarcation of the external boundaries of the community. The internal and the external are intertwined, which implies that exclusionary policies ultimately infect the ‘inside’ of the national community. As a consequence, anybody or any group can be framed as an ‘outsider’. The rise of populism has exposed this intertwinement. This means that the tipping of the balance in favour of exclusion and statism as to how migrants are treated, raises general concerns about the nature of the community and its organizing liberal values.The chapter thus argues that migration lawyers should be more effective in exposing these general concerns and in utilizing some more general constitutional law techniques for empowering minorities. Migration law experts should not only focus on the weakness of migration law, but expand their knowledge to other legal fields and see the weaknesses therein. Finally, my chapter also argues that constitutional lawyers, on their part, should be much more sensitive to any developments in the area of migration law. Such developments can pose dangers of general nature that should not be ignored at their inception.
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| 18823. |
- Stoyanova, Vladislava
(författare)
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L.E. v. Greece: Human Trafficking and the Scope of States’ Positive Obligations under the ECHR
- 2016
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Ingår i: European Human Rights Law Review. - 1361-1526. ; :3, s. 290-300
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Tidskriftsartikel (övrigt vetenskapligt/konstnärligt)abstract
- In L.E. v. Greece, the European Court of Human Rights found that Greece failed to fulfill its positive obligations under art.4 of the European Convention on Human Rights (ECHR). The judgment can be assessed as a step forward for alleviating the scarcity of judicial engagement with art.4 of the ECHR (the right not to be subjected to slavery, servitude, forced labour and human trafficking). While overall a positive development, in this note I will argue that in some respects the judgment is under inclusive, while in others it is over inclusive. I will demonstrate that the Court faces some challenging questions when it addresses positive obligations under art.4 and these questions have to be more seriously considered. I will also offer an alternative reasoning which is more useful for responding to the structural deficiencies in the protection offered to migrants subjected to severe forms of exploitation in Europe.
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| 18824. |
- Stoyanova, Vladislava
(författare)
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On the Bride’s Side? Victims of Domestic Violence and their Residence Rights under EU and Council of Europe Law
- 2019
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Ingår i: Netherlands Quarterly of Human Rights. - 0169-3441. ; 37:4, s. 311-335
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Tidskriftsartikel (refereegranskat)abstract
- Migrant women victims of domestic violence might face a stark choice between leaving an abusive relationship and tolerating the abuses so that they can preserve their residence rights in the host country. EU law suffers from some major limitations in addressing this situation. In view of the EU ratification of the Council of Europe Convention on Preventing and Combating Violence against Women (the Istanbul Convention), will the EU be required to take new measures in light of the demands imposed by Article 59 of the Convention that addresses the residence rights of migrant women victims of violence? By clarifying these demands and juxtaposing them with the relevant EU law standards, this article shows the divergences and convergences between the two regional European legal orders. It also forwards concrete suggestions as to which EU rules might need to be modified.
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| 18825. |
- Stoyanova, Vladislava
(författare)
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Populism, Exceptionality and the Right of Migrants to Family Life Under the European Convention on Human Rights
- 2018
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Ingår i: European Journal of Legal Studies. - 1973-2937.
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Tidskriftsartikel (refereegranskat)abstract
- The populist turn in national and international politics includes one common question across countries: curbing immigration and limiting the rights of migrants. In the light of these restrictive tendencies, the questions that this article seeks to address are: whether and how the European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights (ECtHR), can be a point of resistance against populism? More specifically, how might the ECtHR respond to the anti-migration dimension of the populist turn when adjudicating cases implicating the rights of migrants (with focus on the right to family life)? Given, the challenging political environment engendered by populism, how has the Court managed to maintain its standing in the sensitive area of migration? I acknowledge that the Court has offered a space where the state has to advance reasoned arguments to justify disruptions of family life in pursuit of immigration control objectives. At the same time, however, I also demonstrate that this space does not reflect the rigor of scrutiny as we generally know it in human rights law (i.e. the proportionality reasoning with its distinctive subtests). The Court acts with restraint; it sides with the sovereign and, therefore, any populist attacks (e.g. robbing ‘the people’ of their sovereignty) against the Court are unsubstantiated. I also air a note of caution for the Court itself. More specifically, in its restraint to exercise resistance against the sovereign, the Court is dangerously getting close to utilizing populist tools. Finally, I explain the ‘procedural turn’ taken by the Court when adjudicating the right to family life of migrants. While I acknowledge that this is a useful tool for the Court to maintain its standing in the sensitive area of migration, I also indicate the dangers that might emerge from its application.
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| 18826. |
- Stoyanova, Vladislava
(författare)
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Positive Obligations under the European Convention on Human Rights: Within and Beyond Boundaries
- 2023
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Bok (refereegranskat)abstract
- The book identifies the key analytical issues that need to be considered in determining whether a State is responsible under the ECHR for omissions. The focal question is whether and how omissions by the State can be conceptualised into failures to fulfil positive obligations. In addition to this technical analytical question, the book also reflects upon what is at stake for the political community when the triggering, the content, and the scope of positive human rights obligations are determined. A central question is then how the search for a balance between intrusion and restraint by the State, between protection and freedom from invasion, defines this community and pulls the analysis of state responsibility for omissions in different directions.The book is designed to become the main reference source concerning ECHR positive obligations.
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| 18827. |
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| 18828. |
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| 18829. |
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| 18830. |
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