| 1. |
- Loxa, Alezini, et al.
(författare)
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Migration as a Constitutional Crisis for the European Union
- 2022
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Ingår i: Migrants' Rights, Populism and Legal Resilience in Europe. - : Cambridge University Press.
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Bokkapitel (refereegranskat)abstract
- This chapter aims to offer insights into the wider implications for the rule of law, including for the EU constitutional order, of the restrictions of migrants’ and asylum-seeker’ rights that follow from systematic noncompliance with the Common European Asylum System (CEAS) by certain Member States. In other words, has the migration and asylum crisis developed into an EU constitutional crisis? There is a growing body of literature about the constitutional crisis of the EU. A rich debate also exists as to the failures of the CEAS. Our aim is to bring these two into conversation to demonstrate that migration governance has a constitutive role for the EU. If the EU fails to treat the migration crisis as an EU constitutional crisis, the EU might risk disintegration and return to the national. This would take the evolution of the European project further away from its telos.The framing of our research question and our arguments requires at least three initial clarifications that are offered in Section 2. The first refers to our understanding of the EU constitutional order and when this order can be perceived as being in crisis. The second refers to our understanding of a migration and asylum crisis. The third refers to the specificities of the EU as a supranational legal order in relation to the migration crisis as an EU constitutional crisis. Section 3 presents how the EU constitutional order has been challenged by the migration crisis. Specifically it presents how non-compliance, non-enforcement and informalization have become characteristics of EU migration and asylum governance especially post 2015 and have prompted a constitutional crisis where both EU institutions and Member States furnish disintegration. Given the current vision of the EU on the development of its asylum and migration governance, as expressed in the New Asylum and Migration Pact, Section 4 shows that these characteristics are likely to persist and will continue to have constitutional implications. Finally, Section 5 examines what the future holds for EU migration and asylum governance in view of the rise of populism in EU Member States, to conclude that all the alternative scenarios indicate that it might be wiser for the EU to not come forward with new proposals (such as the New Pact) in ‘politically and symbolically charged areas’ (such as migration and asylum) during populist times.
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| 2. |
- Stoyanova, Vladislava, et al.
(författare)
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Due Diligence versus Positive Obligations: Critical Reflections on the Council of Europe Convention on Violence against Women
- 2020
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Ingår i: International Law and Violence Against Women : Europe and the Istanbul Convention - Europe and the Istanbul Convention. - 9780367257668 - 9780429289736
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Bokkapitel (refereegranskat)abstract
- Article 5 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention) enshrines the standard of due diligence to frame states’ obligations. In the existing literature in the area of violence against women, the standard of due diligence has been uncritically endorsed; the reason being that it has played a crucial role in the recognition of the violence as a human rights violation. This chapter offers a different and more critical perspective. It is an in-debt inquiry as to the meaning of the due diligence standard, its limits and any reasons to be cautious about it. It asks the question whether there any peculiarities as to how it has been framed in the Istanbul Convention, which could be a reason for concern. I clarify that in general the European Court of Human Rights does not use the concept of due diligence; rather, violence against women can trigger states’ positive human rights obligations. I show that not all positive obligations are obligations of due diligence. Better sensitivity as to the divergences and their implications is called for. Such a sensitivity is absent in the existing literature, where currently a confusion reigns. I argue that it is doubtful whether the reference to due diligence adds any concreteness; rather, this reference obscures. This chapter is an attempt to disentangle and better understand the relationship between due diligence and positive obligations in human rights law. A meaningful effort to juxtapose the two frameworks (due diligence versus positive obligations) requires a better understanding of each one of them, which is also offered. The main argument is that it is important to be sensitive of the nuances and differences between the two frameworks. A general references to the due diligence standard, as can be found in Article 5 of the Istanbul Convention, poses the danger of ignoring these nuances.
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| 3. |
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| 4. |
- Stoyanova, Vladislava
(författare)
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The Disjunctive Structure of Positive Rights under the European Convention on Human Rights
- 2018
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Ingår i: Nordic Journal of International Law. - : Brill. - 0902-7351 .- 1571-8107. ; 87:3, s. 344-392
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Forskningsöversikt (refereegranskat)abstract
- The European Court of Human Rights (ECtHR) has reiterated that states have discretion regarding what means to use to fulfil their positive obligations under the European Convention on Human Rights (echr). Given the "wide range of possible measures" that could be taken to ensure compliance with positive rights, these rights have a disjunctive structure since an omission has no definitive counterpart. This article examines how the ECtHR deals with the disjunctive structure of positive rights and how it addresses alternative protective measures that could have been extended. In order to identify the main points of contention, I first draw on legal-theoretical literature that has grappled with the structure of positive rights. I then examine what the Court actually does when it adjudicates positive obligation cases under qualified and unqualified rights. I analyse how and why the review endorsed in the ECtHR's judgments diverges from or converges with the theoretical model.
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| 5. |
- Stoyanova, Vladislava
(författare)
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Victims of human trafficking in the asylum procedure. A legal analysis of the guarantees for 'vulnerable persons' under the second generation of EU asylum legislation
- 2015
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Ingår i: Seeking asylum in the European Union: Selected protection issues raised by the second phase of the common European asylum system.
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Bokkapitel (refereegranskat)abstract
- Victims of human trafficking have been designated as a group of migrants in need of special assistance and protection. As a result, a whole legal framework has been developed revolving around this group. Within Europe, this framework operates on two levels: the Council of Europe and the EU. EU law has added an additional layer of sophistication with its second generation of asylum legislation. The category ‘victims of human trafficking’ has been added to the group of persons considered as ‘vulnerable persons’ who might be in need of special reception conditions and/or special procedural guarantees. The objective of this article is to investigate how the above indicated legal instruments interact with each other.
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| 6. |
- Gauci, Jean-Pierre, et al.
(författare)
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The Human Rights of Smuggled Migrants and Trafficked Persons in the Un Global Compacts on Migrants and Refugees
- 2018
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Ingår i: International Journal of Migration and Border Studies. - 1755-2419. ; 4:3, s. 222-235
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Tidskriftsartikel (refereegranskat)abstract
- On 19 September 2016, the UNGA adopted the New York Declaration for Refugees and Migrants through which States committed to developing two compacts: one on refugees and one on safe, orderly and regular migration. The Zero Drafts of the compacts were published on 31 January 2018 and 5 February 2018, respectively. The move towards the discussion and adoption of the global compacts comes in part in recognition of the unprecedented number of displaced persons (and human mobility more generally) around the globe and cynically in response to the number of would be asylum seekers that arrived on Europe's shores over the past three years. This paper seeks to engage with what the global compacts should seek to achieve in relation to smuggling and trafficking and whether there is room for cautious optimism in what might be achieved by the compacts in relation to the protection of smuggled migrants and trafficked persons. In so doing, it focuses on the potential of the compacts within the existing framework of the UN protocols against human smuggling and human trafficking.
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| 7. |
- Guild, Elspeth, et al.
(författare)
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The Human Right to Leave Any Country: A Right to Be Delivered
- 2018
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Ingår i: European Yearbook on Human Rights. - : Institute of Southeast Asian Studies. - 9781780688008 ; , s. 373-394
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Bokkapitel (refereegranskat)abstract
- The right to leave a country is enshrined in both international human rights law and its European counterpart. It is a right which is independent and does not require the individual exercising it to show that he or she is admissible in some other country. It is exercisable even in the absence of evidence of possible admission to a destination country. However, in Europe (and some other parts of the world) some states are seeking to encourage their neighbours to interfere with people’s right to leave a country on the grounds that these European states fear that people want to come to their borders. This article examines the right to leave a state from the perspective of international and European human rights law and questions the legality of various efforts to make it dependent on a right of entry to another country.
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| 8. |
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International Law and Violence against Women: Europe and the Istanbul Convention
- 2020
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Samlingsverk (redaktörskap) (refereegranskat)abstract
- This book offers an in-depth and critical analysis of the Istanbul Convention, along with discussions on its impact and implications.The work highlights the place of the Convention in the landscape of international law and policies on violence against women and equality. The authors argue that the Convention with its emphasis on integrated and comprehensive policies has an important role in promoting equality, but they also note the debates on “genderism” that the Convention has triggered in some member states. The book analyses central concepts of the Convention, including violence, gender and due diligence. It takes up major commitments of the parties to the Convention, including support and services to victims, criminal law provisions and protection of migrant women against violence. The book thus makes a major contribution to the development of national laws, policies and practice.It provides a valuable guide for policy-makers, students and academics in international human rights law, criminal and social law, social policy, social work and gender studies.
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| 9. |
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| 10. |
- Stoyanova, Vladislava
(författare)
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A stark choice : Domestic violence or deportation? The immigration status of victims of domestic violence under the istanbul convention
- 2018
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Ingår i: European Journal of Migration and Law. - : Brill. - 1388-364X .- 1571-8166. ; 20:1, s. 53-82
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Tidskriftsartikel (refereegranskat)abstract
- The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention) is a relatively recent treaty that has the objective to protect women against all forms of violence and to design a comprehensive framework of measures for achieving this aim. Migrant women are of special concern given the awareness that when their migration status is dependent on that of their sponsoring spouse, they might be faced with a stark choice between staying in an abusive relationship or risking being deported. Article 59 (residence status) of the Convention is intended to respond to this problem by providing an immigration relief to migrant women victims of violence by carving out exceptions in the immigration control prerogatives of host states. Article 59 raises two interrelated questions: under what conditions are these exceptions triggered and what is their transformative potential in the light of the immigration rights that Article 59 extends to migrant women. This article argues that while the Istanbul Convention will generate some positive changes, the overall advancement triggered by the treaty in the area of protection of migrant women suffers from significant limitations.
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