@misc{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {International Law for International Relations}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780199558421}, pages = {XXX, 431 S.}, language = {en} } @misc{CalıMeckledGarcia, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Meckled-Garc{\´i}a, Saladin}, title = {The Legalisation of Human Rights}, publisher = {Routledge}, address = {London}, isbn = {978-0415361231}, pages = {X, 208}, language = {en} } @article{CalıGhaneaJones, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Ghanea, Nazila and Jones, Benjamin}, title = {Big Promises, Small Gains: Domestic Effects of Human Rights Treaty Ratification in the Member States of the Gulf Cooperation Council}, series = {Human Rights Quarterly}, volume = {38}, journal = {Human Rights Quarterly}, number = {1}, issn = {1085-794X}, doi = {10.1353/hrq.2016.0017}, pages = {21 -- 57}, abstract = {In recent years, the Gulf Cooperation Council (GCC) states have been in-creasingly willing to ratify United Nations human rights instruments. This article examines the underlying rationales for these ratifications and the limited range and drivers of subsequent domestic reforms post ratification. Drawing on both a quantitative analysis of engagement with the UN treaty bodies and Charter-based mechanisms in over 120 UN reports and qualitative interviews with over sixty-five government officials, members of civil society, National Human Rights Institutions, lawyers, and judges from all six states, this article argues that in the GCC states, UN human rights treaty ratification results from a desire to increase standing in the international community. Treaty ratification has limited effects driven by international socialization and cautious leadership preferences.}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Comparing the support of the EU and the US to international human rights law qua international human rights law: Worlds too far apart?}, series = {International Journal of Constitutional Law}, volume = {13}, journal = {International Journal of Constitutional Law}, number = {4}, publisher = {Oxford University Press}, issn = {1474-2659}, doi = {10.1093/icon/mov058}, pages = {901 -- 922}, abstract = {Support for international human rights law (IHRL) is one area where most international lawyers would have a hunch that the European Union fares better than the United States overall. In this article I focus on Pollack's dependent variable, "support" for international law, and its four dimensions: leadership, commitment, compliance, and internalization and investigate this hunch. I find that the conventional contrast between the US and the EU with regard to their support for IHRL is valid, with respect to political support for IHRL, but less so for judicial support. I argue that the marked differences between the EU and the US in the field of political support for IHRL are best explained by the thickness of the institutional human rights regime with respect to EU member states In the case of judicial support, the CJEU shares with the US Supreme Court the reflex of protecting its own constitutional autonomy, despite the comparatively better legal resources at its disposal to support IHRL.}, language = {en} } @article{CalıKoch, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Koch, Anne}, title = {Foxes Guarding the Foxes? The Peer Review of Human Rights Judgments by the Committee of Ministers of the Council of Europe}, series = {Human Rights Law Review}, volume = {14}, journal = {Human Rights Law Review}, number = {2}, publisher = {Oxford Academic}, issn = {1744-1021}, doi = {https://doi.org/10.1093/hrlr/ngu007}, pages = {301 -- 325}, abstract = {This article investigates the reliability of the peer review of human rights judgments by the Committee of Ministers of the Council of Europe. It argues that, even if composed of politically motivated actors, the Committee is not to be dismissed too cursorily as a deficient and unreliable system of compliance monitoring. Evidence shows that formal and informal institutional constraints, in particular the presence of a strong Secretariat, constrain the propensity to bargain amongst Council of Europe diplomats acting as peers when monitoring the implementation of judgments of the European Court of Human Rights. Our finding runs contrary to the proposition that Europe constitutes a special case of cultural convergence around respect for international human rights law. The article further argues that hybrid models of compliance monitoring which combine political as well as judicial and technocratic elements may be more effective in facilitating human rights compliance than direct international court orders or expert recommendations.}, language = {en} } @article{CalıKochBruch, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Koch, Anne and Bruch, Nicola}, title = {The social legitimacy of Human Rights Courts: a grounded interpretivist analysis of the European Court of Human Rights}, series = {Human Rights Quarterly}, volume = {35}, journal = {Human Rights Quarterly}, number = {3}, publisher = {The Johns Hopkins University Press}, issn = {1085-794X}, doi = {10.1353/hrq.2013.0057}, pages = {955 -- 984}, abstract = {This article offers an empirically grounded interpretivist theory of the social legitimacy of the European Court of Human Rights based on domestic judicial and political elite accounts of the legitimacy of the Court in Turkey, Bulgaria, United Kingdom, Ireland and Germany. The central argument of the article is that the social legitimacy of the European Court of Human Rights is based on a constant comparison between the values and goals of domestic institutions and the values and goals of the European Court of Human Rights. More specifically, the social legitimacy of the European Court of Human Rights is grounded in the logic of a fair compromise: What actors think they lose by according legitimacy to the European Court of Human Rights must be balanced by what they perceive to gain in return. Three factors organise how actors in different domestic settings struck a fair compromise in their domestic contexts: a) perception of domestic human rights conditions, b) commitment to cosmopolitan ideals of human rights and international law and c) commitment to domestic institutions.}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {The Logics of Supranational Human Rights Litigation, Official Acknowledgment, and Human Rights Reform: The Southeast Turkey Cases before the European Court of Human Rights, 1996-2006}, series = {Law and Social Inquiry}, volume = {35}, journal = {Law and Social Inquiry}, number = {2}, issn = {1747-4469}, doi = {10.1111/j.1747-4469.2010.01187.x}, pages = {311 -- 337}, abstract = {This article examines the domestic impact of supranational human rights litigation on acknowledgment of state violence in the context of macroprocesses of global governance. The article's argument is that the impact of supranational human rights litigation on the process of acknowledgment must be seen through counternarratives on state violence. The article undertakes a detailed textual analysis of the truth claims and denial strategies that emerged from the European Court of Human Rights proceedings on state violence during Turkey's struggle against the armed group the Kurdistan Workers Party (PKK). It assesses these in the context of the human rights reforms that were created following pressure from European-level governance processes. The article argues that attention must be paid to agency in acknowledgment and truth-telling processes, and points to the limits of technical-bureaucratic forms of human rights reform interventions in the context of state violence.}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {On Interpretivism and International Law}, series = {European Journal of International Law}, volume = {20}, journal = {European Journal of International Law}, number = {3}, issn = {1464-3596}, doi = {10.1093/ejil/chp038}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-22561}, pages = {805 -- 822}, abstract = {This article argues for the relevance of interpretivism within theoretical and normative debates about international law. To do this, the article carries out two tasks. First, it draws out the central features of interpretivism that make it a theoretically distinct contribution to understanding the nature and theory of law. Secondly, it identifies four important objections, two external and two internal, to the relevance of interpretivism to international law. External objections stem from positivism and anti-essentialism about international law. Internal objections, on the other hand, stem from the view that international law does not suit the application of interpretivism. I show that it is possible to counter all four and conclude by pointing to the nature of future work that needs to be undertaken to develop a substantive interpretivist account of international law.}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {The Purposes of the European Human Rights System: One or Many?}, series = {European Human Rights Law Review}, volume = {3}, journal = {European Human Rights Law Review}, issn = {1361-1526}, pages = {299 -- 306}, language = {en} } @book{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {The Authority of International Law}, publisher = {Oxford University Press}, address = {Oxford}, doi = {10.1093/acprof:oso/9780199685097.001.0001}, pages = {224}, abstract = {This book tackles an old, but ever relevant question: does international law enjoy legal authority over domestic orders? If so, what is the form and extent of the authority of international law? The book answers the first question in the positive. International law enjoys authority over domestic political and judicial organs. Such authority, however, has sui generis characteristics. It may not be conclusive authority. It may also not demand blind obedience. What international law demands at the very least is minimalist deference. The book answers the second question by holding that each and every international law does not make identical claims to authority. What form and extent of authority international law enjoys depends on whether a particular international law imposes a strong, a weak, or a rebuttable duty. The duty of a domestic judge and politician is to reflectively ask and engage with what kind of a duty she is engaged in when bringing the international law's authority back home. The book has a decidedly practice-based and doctrinal approach to the questions it sets for itself. It demonstrates that realists, rationalists, and more recently democratic theorists have long attacked international lawyers. It is time to respond by offering a defence of the authority of international law and how it functions.}, language = {en} } @techreport{CostelloGroenendijkHalleskovStorgaard, type = {Working Paper}, author = {Costello, Cathryn and Groenendijk, Kees and Halleskov Storgaard, Louise}, title = {Realising the Right to Family Reunification of Refugees in Europe}, abstract = {This issue paper examines family reunification for refugees as a pressing human rights issue. Without it, refugees are denied their right to respect for family life, have vastly diminished integration prospects and endure great additional unnecessary suffering, as do their family members. The Commissioner for Human Rights calls on all Council of Europe member states to uphold their human rights obligations and ensure the practical effectiveness of the right to family reunification for refugees and other international protection beneficiaries. To do so, states should (re-)examine their laws, policies and practices relating to family reunification for refugees. This issue paper contains 36 recommendations to that end.}, language = {en} } @techreport{GuildCostelloMorenoLax, type = {Working Paper}, author = {Guild, Elspeth and Costello, Cathryn and Moreno-Lax, Violeta}, title = {Implementation of the 2015 Council Decisions establishing provisional measures in the area of international protection for the benefit of Italy and of Greece}, abstract = {This study, commissioned by the European Parliament's Policy Department for Citizens' Rights and Constitutional Affairs at the request of the LIBE Committee, examines the EU's mechanism of relocation of asylum seekers from Greece and Italy to other Member States. It examines the scheme in the context of the Dublin System, the hotspot approach, and the EU-Turkey Statement, recommending that asylum seekers' interests, and rights be duly taken into account, as it is only through their full engagement that relocation will be successful. Relocation can become a system that provides flexibility for Member States and local host communities, as well as accommodating the agency and dignity of asylumseekers. This requires greater cooperation from receiving States, and a clearer role for a single EU legal and institutional framework to organise preference matching and rationalise efforts and resources overall.}, language = {en} } @techreport{GuildCostelloGarlicketal., type = {Working Paper}, author = {Guild, Elspeth and Costello, Cathryn and Garlick, Madeline and Moreno-Lax, Violeta}, title = {Enhancing the Common European Asylum System and Alternatives to Dublin}, abstract = {Upon request by the LIBE committee, this study examines the reasons why the Dublin system of allocation of responsibility for asylum seekers does not work effectively from the viewpoint of Member States or asylum-seekers. It argues that as long as it is based on the use of coercion against asylum seekers, it cannot serve as an effective tool to address existing imbalances in the allocation of responsibilities among Member States. The EU is faced with two substantial challenges: first, how to prevent unsafe journeys and risks to the lives of people seeking international protection in the EU; and secondly, how to organise the distribution of related responsibilities and costs among the Member States. This study addresses these issues with recommendations aimed at resolving current practical, legal and policy problems.}, language = {en} } @techreport{GuildCostelloGarlicketal., type = {Working Paper}, author = {Guild, Elspeth and Costello, Cathryn and Garlick, Madeline and Moreno-Lax, Violeta and Mouzourakis, Minos}, title = {New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection}, abstract = {Upon request by the LIBE committee, this study examines the workings of the Common European Asylum System (CEAS), in order to assess the need and potential for new approaches to ensure access to protection for people seeking it in the EU, including joint processing and distribution of asylum seekers. Rather than advocating the addition of further complexity and coercion to the CEAS, the study proposes a focus on front-line reception and streamlined refugee status determination, in order to mitigate the asylum challenges facing Member States, and guarantee the rights of asylum seekers and refugees according to the EU acquis and international legal standards.}, language = {en} } @techreport{KaytazCostello, type = {Working Paper}, author = {Kaytaz, Esra and Costello, Cathryn}, title = {Building Empirical Research into Alternatives to Detention: Perceptions of Asylum-Seekers and Refugees in Toronto and Geneva}, abstract = {Recent research in Toronto and Geneva indicates that asylum seekers and refugees are predisposed to be cooperative with the refugee status determination (RSD) system and other immigration procedures, and that the design of alternatives to detention can create, foster and support this cooperative predisposition - or can undermine or even demolish it.}, language = {en} } @techreport{LazarusCostelloGhaneaetal., type = {Working Paper}, author = {Lazarus, Liora and Costello, Cathryn and Ghanea, Nazila and Zeigler, Katja}, title = {Report on the evolution of Fundamental Rights Charters and Caselaw: A comparison of the EU, Council of Europe and UN Systems}, pages = {254}, abstract = {This report examines the human rights protection systems of the United Nations, the Council of Europe and the European Union. It explores the substantive rights, protection mechanisms, modes of engagement within, and the interactions between each system. The report also outlines the protection of minority rights, and the political processes through which human rights and institutions evolve and interact. A series of recommendations are made on how to advance the EU human rights system.}, language = {en} } @techreport{Costello, type = {Working Paper}, author = {Costello, Cathryn}, title = {Report on Improving the Quality and Consistency of Asylum Decisions in the Council of Europe Member States}, abstract = {There are important shortcomings in terms of quality and consistency of the asylum decisions taken in the Council of Europe member states. As evidence of this, in 2007 acceptance rates varied considerably between 1\% and 39\% in countries receiving significant numbers of asylum seekers. The situation was even more dramatic when looking at certain specific groups of asylum seekers. For example, again in 2007, the acceptance rates for Iraqis seeking protection in Europe varied between 0 and 81\%. The very low recognition rates in certain countries, or for certain groups of asylum seekers, may be due to difficulties in accessing the asylum process, poor procedural safeguards in the asylum proceedings, restrictive and divergent interpretation of eligibility criteria, lack of objective and reliable country of origin information, poor evidential assessment, in particular the culture of disbelief in asylum adjudication, political pressure, lack of training of the relevant authorities and their personnel, or a combination of these factors. The Committee of Ministers of the Council of Europe should be invited to prepare guidelines to address the difficulties outlined above. These guidelines should encourage Council of Europe member states to develop higher standards of protection, based on their own domestic standards of human rights or humanitarian impulse, reflecting the nature of the European Convention on Human Rights as a pan-European minimum standard. Furthermore the Committee of Ministers should consider a mechanism for monitoring the quality and consistency of asylum decisions, and to facilitate this task, consider guidelines on harmonisation of asylum data across Council of Europe member states, taking into account work already carried out at by the European Union. The Committee of Ministers should also review the asylum curriculum in member states and develop training programmes, tools and data-bases of jurisprudence of asylum decisions across Europe. Finally, there is a pressing need for the Committee of Ministers to establish a new inter-governmentalCommittee with a permanent mandate to examine asylum and refugee issues to replace the work formerly carried out by the Ad hoc Committee of experts on the legal aspects of territorial asylum, refugees and stateless persons (CAHAR).}, language = {en} } @book{BacikCostelloDrew, author = {Bacik, Ivana and Costello, Cathryn and Drew, Eileen}, title = {Gender InJustice: Towards the Feminisation of the Legal Professions?}, isbn = {0953497917}, publisher = {Hertie School}, pages = {431}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {European Community Judicial Review in the Irish Courts - Scope, Standards and Separation of Powers}, series = {Irish perspectives on EC law}, booktitle = {Irish perspectives on EC law}, editor = {Lucey, Mary Catherine and Keville, Cathrina}, publisher = {Round Hall Ltd}, address = {Dublin}, isbn = {978-1-85800-280-4}, publisher = {Hertie School}, pages = {17 -- 50}, language = {en} } @book{Costello, author = {Costello, Cathryn}, title = {The Oxford Handbook of International Refugee Law}, editor = {Costello, Cathryn and Foster, Michelle and McAdam, Jane}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198848639}, publisher = {Hertie School}, pages = {1344}, abstract = {The Oxford Handbook of International Refugee Law is a comprehensive, critical work, which analyses the state of research across the refugee law regime as a whole. Drawing together leading and emerging scholars, the Handbook provides both doctrinal and theoretical analyses of international refugee law and practice. It critiques existing law from a variety of normative positions, with several chapters identifying foundational flaws that open up space for radical rethinking. Many authors work directly in the field, and their contributions demonstrate how scholarship and practice can mutually inform each other. Contributions assess a wide range of international legal instruments relevant to refugee protection, including from international human rights law, international humanitarian law, international migration law, the law of the sea, and international and transnational criminal law. Geographically, contributors examine regional and domestic laws and practices from around the world, with 10 chapters focused on specific regions. This Handbook provides an account, as well as a critique, of the status quo, and in so doing it sets the agenda for future academic research in international refugee law.}, language = {en} } @incollection{CostelloIoffe, author = {Costello, Cathryn and Ioffe, Yulia}, title = {Non-Penalization and Non-Criminalization}, series = {The Oxford Handbook of International Refugee Law}, booktitle = {The Oxford Handbook of International Refugee Law}, editor = {Costello, Cathryn and Foster, Michelle and McAdam, Jane}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198848639}, publisher = {Hertie School}, abstract = {The chapter examines article 31 of the Convention relating to the Status of Refugees (Refugee Convention), the provision which purports to protect refugees from penalization for 'illegal entry and stay'. The chapter draws on the previous work by the authors for UNHCR, including a review of national caselaw and practice on article 31 from over forty States. It reflects on the crucial role of the provision in safeguarding the right to seek asylum and argues that non-penalization constitutes one of the objects and purposes of the Refugee Convention. As a result, the chapter considers the distinct obligation on States to refrain from any acts frustrating the treaty's object and purpose. Beyond article 31 of the Refugee Convention, the chapter explores international human rights law as a potentially wider source of protection. It examines whether the criminalization of irregular migration itself may be regarded as a human rights violation, thereby opening up a new avenue for legal research and advocacy. Finally, the chapter argues that aside from treaty obligations under international refugee and human rights law there is an emerging general principle of law relating to non-penalization of refugees and some other migrants.}, language = {en} } @incollection{CostelloO'Cinneide, author = {Costello, Cathryn and O'Cinneide, Colm}, title = {The Right to Work of Asylum Seekers and Refugees}, series = {The Oxford Handbook of International Refugee Law}, booktitle = {The Oxford Handbook of International Refugee Law}, editor = {Costello, Cathryn and Foster, Michelle and McAdam, Jane}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198848639}, publisher = {Hertie School}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The Legal Status and Legal Effects of the EU Charter of Fundamental Rights}, series = {Fundamental Social Rights: Current Legal Protection and the Challenge of the EU Charter of Fundamental Rights}, booktitle = {Fundamental Social Rights: Current Legal Protection and the Challenge of the EU Charter of Fundamental Rights}, publisher = {ICEL}, publisher = {Hertie School}, pages = {127 -- 149}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The Courts}, series = {What the Treaty of Nice Means}, booktitle = {What the Treaty of Nice Means}, editor = {Keatinge, Patrick and Dooge, Jim}, publisher = {Institute of International and European Affairs}, address = {Dublin}, isbn = {9781874109563}, publisher = {Hertie School}, pages = {61 -- 71}, language = {en} } @techreport{CostelloBettsZaun, type = {Working Paper}, author = {Costello, Cathryn and Betts, Alexander and Zaun, Natascha}, title = {A Fair Share: Refugees and Responsibility-Sharing, Report and Policy Brief}, abstract = {Developing countries account for a large majority of global refugee reception. 3.5 million out of Syria's 4 million refugees have sought refuge in three countries - Turkey, Lebanon and Jordan. Is it possible to achieve a fair distribution of protection seekers? This Delmi report examines the division of responsibilities for those in need of protection from a global perspective. It analyses past and present models and discusses its feasibility in practice.}, language = {en} } @techreport{CostelloIoffeBuechsel, type = {Working Paper}, author = {Costello, Cathryn and Ioffe, Yulia and B{\"u}chsel, Teresa}, title = {Article 31 of the 1951 Convention Relating to the Status of Refugees}, abstract = {The aim of this paper is to clarify the correct interpretation of Article 31 of the 1951 Convention Relating to the Status of Refugees (the 1951 Refugee Convention). The interpretation proposed is based on the binding international precepts relating to treaty interpretation, as reflected in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT).}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {EC Immigration \& Asylum Policymaking: Integrating a Role for the Oireachtas}, series = {National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures}, booktitle = {National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures}, editor = {Barrett, Gavin}, publisher = {Clarus Press}, isbn = {9781905536023}, publisher = {Hertie School}, pages = {205 -- 242}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The Asylum Procedures Directive in Legal Context: Equivocal Standards Meet General Principles}, series = {Whose Freedom, Security and Justice? EU immigration and asylum law after 1999}, booktitle = {Whose Freedom, Security and Justice? EU immigration and asylum law after 1999}, editor = {Baldaccini, Anneliese and Guild, Elspeth and Toner, Helen}, publisher = {Hart Publishing}, isbn = {9781841136844}, publisher = {Hertie School}, pages = {151 -- 193}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Administrative Governance and the Europeanisation of Asylum and Immigration Policy}, series = {EU Administrative Governance}, booktitle = {EU Administrative Governance}, editor = {Hofmann, Herwig C.H. and T{\"u}rk, Alexander H.}, publisher = {Edward Elgar Publishing}, isbn = {9781845422851}, publisher = {Hertie School}, pages = {287 -- 340}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Accidents of Place and Parentage: Birthright Citizenship and Border Crossings}, series = {The Citizenship Referendum: Implications for the Constitution and Human Rights}, booktitle = {The Citizenship Referendum: Implications for the Constitution and Human Rights}, publisher = {School of Law, Trinity College Dublin}, publisher = {Hertie School}, pages = {5 -- 33}, language = {en} } @incollection{CostelloBrown, author = {Costello, Cathryn and Brown, Eimear}, title = {ECHR and the European Union}, series = {ECHR and Irish Law}, booktitle = {ECHR and Irish Law}, editor = {Kilkelly, Ursula}, publisher = {Jordan Publishing}, isbn = {9781846611247}, publisher = {Hertie School}, pages = {35 -- 78}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {EU Asylum Law \& Policy}, series = {Sanctuary in Ireland, Perspectives on Asylum Law and Policy}, booktitle = {Sanctuary in Ireland, Perspectives on Asylum Law and Policy}, editor = {Fraser, Ursula and Harvey, Colin}, publisher = {Institute of Public Administration}, isbn = {9781904541042}, publisher = {Hertie School}, pages = {18 -- 51}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Irish and European Law}, series = {Ireland and the European Union: The First Thirty Years 1973-2003}, booktitle = {Ireland and the European Union: The First Thirty Years 1973-2003}, editor = {Hourihane, Jim}, publisher = {Lilliput Press Dublin}, isbn = {9781843510352}, publisher = {Hertie School}, pages = {26 -- 40}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Positive Action}, series = {Equality in Diversity: The New Equality Directives}, booktitle = {Equality in Diversity: The New Equality Directives}, editor = {Costello, Cathryn and Barry, Eilis}, publisher = {Irish Centre for European Law and The Equality Authority}, address = {Dublin}, isbn = {9781897606360}, publisher = {Hertie School}, pages = {117 -- 213}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Gender Equalities and the European Union Charter of Fundamental Rights}, series = {Economic and Social Rights under the Charter of Fundamental Rights of the European Union}, booktitle = {Economic and Social Rights under the Charter of Fundamental Rights of the European Union}, editor = {Hervey, Tamara and Kenner, Jeff}, publisher = {Hart Publishing}, isbn = {9781841130958}, publisher = {Hertie School}, pages = {111 -- 138}, language = {en} } @article{CostelloBriddick, author = {Costello, Cathryn and Briddick, Catherine}, title = {Introduction to the Symposium on Undoing Discriminatory Borders}, series = {AJIL Unbound}, volume = {115}, journal = {AJIL Unbound}, doi = {10.1017/aju.2021.49}, pages = {328 -- 332}, abstract = {Migration laws and controls distribute important social goods: the right to enter and reside in a particular state, and the rights that attach to any such residence. Migration controls determine individuals' life chances, including sometimes, their very survival. Migration control is a broad concept. Some practices, such as visa administration, control the possibility of travel by regular means, dictating access to mobility opportunities. Other aspects of migration control, such as the conferral of nationality, determine access to permanent residence rights, and the legal ability to pass on membership of a particular state to one's children. Some forms of migration control are automated and may also be undertaken by private actors, including for profit companies. Others may involve determination or adjudication by individual officials or judges. What unites this broad set of practices is that they comprise important public functions with profound implications for both "outsiders" and "insiders." As Chandran Kukathas argues, migration controls pose a threat to equality within states, challenging the notion that these practices primarily affect imagined "outsiders."1 Migration controls impact both "without" and "within" the state. This introductory essay explores discrimination in migration control and discusses how such treatment may be approached from an international legal perspective. We introduce the symposium's contributors and essays and establish the need for further research on this topic.}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {How Loud Do the Alarm Bells Toll? Execution of 'Article 18 Judgments' of the European Court of Human Rights}, series = {European Convention on Human Rights Law Review}, journal = {European Convention on Human Rights Law Review}, issn = {2666-3228}, doi = {10.1163/26663236-bja10024}, abstract = {This article investigates whether Article 18 judgments of the European Court of Human Rights, indicating that the state authorities pursued ulterior and illegitimate motives when violating the Convention, receive the seriousness and the urgency that they call for at the execution phase. By way of an analysis of the responses of the Committee of Ministers and states on the receiving end of Article 18 judgments between 2004 and June 2021, this article finds that the collective responsiveness of the Committee of Ministers to Article 18 judgments has increased over time, especially with respect to individual measures required to implement Article 18 judgments. So far, the responsiveness of individual states to their Article 18 judgments does, however, vary significantly, ranging from taking concrete steps to implement the judgments to outright resistance and no response, posing a significant risk to the Convention system's ability to respond to the decay of rule of law.}, language = {en} } @incollection{CostelloTsourdi, author = {Costello, Cathryn and Tsourdi, Lilian}, title = {The Evolution of EU Law on Refugees and Asylum}, series = {The Evolution of EU Law}, booktitle = {The Evolution of EU Law}, publisher = {Oxford University Press}, address = {Oxford}, publisher = {Hertie School}, abstract = {In this contribution, we explore evolution and stasis in EU asylum law and policy. We identify two tensions at the heart of the CEAS, between the commitment to protection and deflection of protection obligations, and between internal mobility within the EU and the immobilization of asylum seekers and refugees. We note the role of these foundational tensions in generating and exacerbating the 'refugee crisis' of 2015/16. This chapter is premised on a widely-shared understanding of the role of EU asylum policy in that crisis, namely that by illegalizing the travel of asylum seekers and refugees in search of protection, it contributes to the dangerous mass flight, which in turn generates humanitarian and political crises. We then analyse four key dimensions of EU asylum policy in light of these tensions: access to asylum, responsibility-allocation, legislative harmonisation, and institutionalised practical co-operation. Across these four fields, we identify the limits of EU law, and its general stasis, in spite of changes in Treaty telos, law-making processes, and EU enlargement. We briefly consider the role of the CJEU, still very much in the shadow of the ECtHR in asylum, in spite of its numerous rulings on the CEAS. Overall, we demonstrate its fairly minimalist approach in this area, avoidance of controversial cases by dubious use of inadmissibility findings, and failure to catalyse policy changes. Against this backdrop of legislative, political and judicial caution and inertia, we identify two key trends: a move towards greater institutional cooperation, including through the creation of a dedicated agency, the European Asylum Support Office (EASO), and a general flight from law in this policy field. We conclude by considering the likely impact of these trends on EU asylum law.}, language = {en} } @incollection{CalıBiankuMotoc, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Bianku, Ledi and Motoc, Iulia}, title = {Migration and the European Convention on Human Rights}, series = {Migration and the European Convention on Human Rights}, booktitle = {Migration and the European Convention on Human Rights}, editor = {{\c{C}}al{\i}, Ba{\c{s}}ak and Bianku, Ledi and Motoc, Iulia}, publisher = {Oxford University Press}, publisher = {Hertie School}, language = {en} } @incollection{CalıCunningham, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Cunningham, Stewart}, title = {The European Court of Human Rights and Removal of Long-Term Migrants: Entrenched Statism with a Human Voice?}, series = {Migration and the European Convention on Human Rights}, booktitle = {Migration and the European Convention on Human Rights}, editor = {{\c{C}}al{\i}, Ba{\c{s}}ak and Bianku, Ledi and Motoc, Iulia}, publisher = {Oxford University Press}, publisher = {Hertie School}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Human Rights Organizations in Turkey}, series = {Oxford Handbook of Turkish Politics}, booktitle = {Oxford Handbook of Turkish Politics}, editor = {Tezc{\"u}r, G{\"u}ne{\c{s}} Murat}, publisher = {Oxford University Press}, doi = {10.1093/oxfordhb/9780190064891.013.36}, publisher = {Hertie School}, abstract = {This chapter analyzes the origins and the development of human rights organizations in Turkey since 1945. It first offers an overview of the limited number of elite organizations established between 1946 and 1974 and the initial skepticism toward human rights activism in the country in the 1960s and 1970s among grass-roots political movements. It then discusses the importance of two major events, the military coup in 1980 and the start of the armed conflict between the Turkish security forces and the PKK in 1984, for the development of human rights-based activism in the 1980s. The chapter then turns to the 1990s, characterized by the proliferation of human rights organizations and diversification of focus areas, ranging from LGBT rights to the rights of women to manifest their religion by wearing headscarves. It links these dynamics to the global rise of human rights activism in the 1990s and the subsequent appropriation of the human rights lexicon by a wide range of domestic social movements. The chapter moves forward with a discussion of the further proliferation of human rights organizations well into the 2000s as Turkey's EU membership process boosted democratization and pluralism. The chapter ends with an assessment of the impact of the Adalet ve Kalk{\i}nma Partisi's authoritarian turn on the transformative power and horizons of human rights organizations in the 2010s.}, language = {en} } @book{CalıBiankuMotoc, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Bianku, Ledi and Motoc, Iulia}, title = {Migration and the European Convention on Human Rights}, publisher = {Oxford University Press}, isbn = {9780192895196}, publisher = {Hertie School}, pages = {288}, abstract = {This edited collection investigates where the European Convention on Human Rights as a living instrument stands on migration and the rights of migrants. This book offers a comprehensive analysis of cases brought by migrants in different stages of migration, covering the right to flee, who is entitled to enter and remain in Europe, and what treatment is owed to them when they come within the jurisdiction of a Council of Europe member state. As such, the book evaluates the case law of the European Convention on Human Rights concerning different categories of migrants including asylum seekers, irregular migrants, those who have migrated through domestic lawful routes, and those who are currently second or third generation migrants in Europe. The broad perspective adopted by the book allows for a systematic analysis of how and to what extent the Convention protects non-refoulement, migrant children, family rights of migrants, status rights of migrants, economic and social rights of migrants, as well as cultural and religious rights of migrants}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Autocratic Strategies and the European Court of Human Rights}, series = {European Convention on Human Rights Law Review}, journal = {European Convention on Human Rights Law Review}, issn = {2666-3236}, doi = {10.1163/26663236-bja10015}, pages = {1 -- 9}, language = {en} } @incollection{CalıHatas, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Hatas, Kristina}, title = {History as an Afterthought: The (Re)discovery of Article 18 in the Case Law of the European Court of Human Rights}, series = {The European Court of Human Rights: Current Challenges in Historical and Comparative Perspective}, booktitle = {The European Court of Human Rights: Current Challenges in Historical and Comparative Perspective}, editor = {Aust, Helmut Philipp and Demir-G{\"u}rsel, Esra}, publisher = {Edward Elgar}, isbn = {9781839108334}, publisher = {Hertie School}, pages = {158 -- 176}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Citizenship of the Union: Above Abuse?}, series = {Prohibition of Abuse of Law: A New General Principle of EU Law}, booktitle = {Prohibition of Abuse of Law: A New General Principle of EU Law}, editor = {de la Feria, Rita and Vogenauer, Stefan}, publisher = {Hart Publishing}, isbn = {9781841139388}, publisher = {Hertie School}, pages = {321 -- 354}, language = {en} } @incollection{CostelloBrown, author = {Costello, Cathryn and Brown, Eimear}, title = {The EU and the ECHR before European and Irish Courts}, series = {ECHR and Irish Law}, booktitle = {ECHR and Irish Law}, editor = {Kilkelly, Ursula}, edition = {Second Edition}, publisher = {Jordan Publishing}, isbn = {9781846611247}, publisher = {Hertie School}, pages = {21 -- 73}, abstract = {Following the incorporation of the European Convention on Human Rights Act 2003 into Irish Law, legal developments in areas such as criminal, family and immigration law have raised serious questions of compatibility with the ECHR. Developments in the European Court of Human Rights have highlighted the increasing potential for using the ECHR to positive effect in Irish law. This second edition of ECHR and Irish Law examines the impact of the ECHR on Irish law and considers the actual and potential contribution of the ECHR Act to domestic law in a range of areas. The work begins with research on the impact of the Act and an examination of the relationship between the ECHR, Irish law and EU law.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Implementation of the Procedures Directive (2005/85) in the United Kingdom}, series = {The Procedures Directive: Central Themes, Problem Issues, and Implementation in Selected Member States}, booktitle = {The Procedures Directive: Central Themes, Problem Issues, and Implementation in Selected Member States}, editor = {Zwaan, Karin}, publisher = {Wolf Legal Publishers}, isbn = {9789058503602}, publisher = {Hertie School}, pages = {111 -- 132}, abstract = {On 1 December 2007, the deadline for the implementation of the Directive 2005/85/EC on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status expired. The lectures on which this book is based were originally given during a seminar on the Procedures Directive that took place in Nijmegen, at the Centre for Migration Law, Radboud University, on Wednesday 12 December 2007. In light of the very substantial level of interest, we have decided to publish a book on the results of the seminar so that people who were not able to attend may benefit from the wealth of knowledge and information which was shared. This book offers insight in all the different aspects of the Procedures Directive.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Child Citizens \& De Facto Deportation: Tender Years, Fragile Ties \& Security of Residence}, series = {Of Courts and Constitutions: Liber Amicorum in Honour of Nial Fennelly}, booktitle = {Of Courts and Constitutions: Liber Amicorum in Honour of Nial Fennelly}, editor = {Bradley, Kieran and Travers, Noel and Whelan, Anthony}, publisher = {Hart Publishing}, address = {London}, isbn = {9781782256014}, doi = {10.5040/9781849468404.ch-025}, publisher = {Hertie School}, pages = {411 -- 432}, abstract = {Citizens may not be deported. That proposition is today axiomatic - the age of banishment is no more. Non-deportability is not just a hallmark of citizenship, but constitutive thereof. Not being deportable means to enjoy security of residence in the polity, to belong legally. Taking that as given, when may the foreign parents of citizens of 'tender years' be deported? This question has been subject of much constitutional controversy in Ireland and at supranational level. Under some approaches, to remove the parents of a young citizen-child is acknowledged as 'de facto deportation' of the children, as it means that the child's right of residence is ineffective or at best only to be exercised under conditions that are themselves a denial of rights. Yet, that approach is permitted under many Constitutions. The present contribution examines this issue, illustrating the wax and wane of domestic constitutional, EU and ECHR protections. Its purpose is not an exhaustive survey of the case law, but rather to identify the different approaches within and across the different systems.}, language = {en} } @incollection{CostelloMorenoLax, author = {Costello, Cathryn and Moreno-Lax, Violeta}, title = {The Extraterritorial Application of the EU Charter of Fundamental Rights: From Territoriality to Facticity, the Effectiveness Model}, series = {Commentary on the EU Charter of Fundamental Rights}, booktitle = {Commentary on the EU Charter of Fundamental Rights}, editor = {Peers, Steve and Hervey, Tamara and Kenner, Jeff and Ward, Angela}, publisher = {Hart Publishing}, address = {London}, doi = {10.5771/9783845259055_1700}, publisher = {Hertie School}, pages = {1700 -- 1727}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Article 33: Family \& Professional Life}, series = {The EU Charter of Fundamental Rights - A Commentary}, booktitle = {The EU Charter of Fundamental Rights - A Commentary}, editor = {Peers, Steve and Tamara, Hervey and Kenner, Jeff and Ward, Angela}, publisher = {Hart Publishing}, address = {London}, isbn = {9783845259055}, doi = {10.5771/9783845259055_934}, publisher = {Hertie School}, pages = {934 -- 969}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {'To me, fair friend, you can never be old´, William Shakespeare, ´Sonnet 104´: ECHR at 70. Rudolf Bernhardt Lecture, 2020}, series = {Zeitschrift f{\"u}r ausl{\"a}ndisches {\"o}ffentliches Recht und V{\"o}lkerrecht / Heidelberg Journal of International Law}, volume = {81}, journal = {Zeitschrift f{\"u}r ausl{\"a}ndisches {\"o}ffentliches Recht und V{\"o}lkerrecht / Heidelberg Journal of International Law}, number = {4}, issn = {0044-2348}, doi = {10.17104/0044-2348-2021-4-895}, pages = {895 -- 916}, abstract = {This article undertakes a survey of the changes in the structure of the interpretive doctrines of the European Court of Human Rights (the Court) over time in an exploration of the aging of the European Convention on Human Rights (ECHR or the Convention) on its 70th anniversary. It argues that the Court's interpretive doctrines that seek to give due defer ence to national rights traditions, canons and institutions have become increasingly pervasive in the Court's procedural and substantive case law in the last two decades. This, in particular, has come at a loss for interpretative doctrines that interpret the Convention as a practical and effective living pan-European instrument. This argument is built in four parts. First it offers a defence of why a study of the interpretive doctrines of the Court over time is a good proxy for studying the ECHR's ageing process. In the second part, it discusses the rich doctrinal forms of due deference and effective interpretation in the case law of the Court - both young and mature. Part three explains how the judicialisation and expansion of the European human rights system in late 1990 s transitioned to a more height ened and sophisticated focus on due deference doctrines in the Court's case law. Finally, part four examines whether the recent judicial innovations under the Court's Article 18 case law and the widely celebrated success of increased ownership of the Convention by domestic courts can act as counter points to the argument that the effective interpretation principle has suffered a loss as the Convention has aged, concluding that none of this may offset the fact that the Convention at 70 is more conservative in spirit than its younger self.}, language = {en} } @article{CalıDemirGuersel, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Demir-G{\"u}rsel, Esra}, title = {The Council of Europe's Responses to the Decay of the Rule of Law and Human Rights Protections: A Comparative Appraisal}, series = {European Convention on Human Rights Law Review}, volume = {2}, journal = {European Convention on Human Rights Law Review}, number = {2}, issn = {2666-3236}, doi = {10.1163/26663236-bja10027}, pages = {165 -- 179}, abstract = {This article introduces the Special Issue on 'The Responses of the Council of Europe to the Decay of the Rule of Law and Human Rights Protections'. The Council of Europe (CoE), a unique international organisation with its commitment to protect and promote human rights, the rule of law, and democracy, has been severely tested by the spread and consolidation of trends posing systemic threats to its foundational goals. The authors of this Special Issue assess how the European Court of Human Rights, the Venice Commission, the Parliamentary Assembly, the Committee of Ministers, and the office of the Secretary General have addressed systemic threats to the foundational principles of the organisation in the last decade. The Special Issue finds that the respective legal-institutional features and capacities of the CoE organs as well as the constraining influence of the broader political context in Europe on them vary significantly, hampering the CoE's ability to produce timely, consistent, and co-ordinated responses against systemic threats.}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {UN treaty body views: a distinct pathway to UN human rights treaty impact?}, series = {A Life Interrupted: Essays in honour of the lives and legacies of Christof Heyns}, booktitle = {A Life Interrupted: Essays in honour of the lives and legacies of Christof Heyns}, publisher = {Pretoria University Law Press (PULP)}, address = {Pretoria}, isbn = {9781991213143}, publisher = {Hertie School}, pages = {443 -- 459}, language = {en} } @incollection{CalıTurkut, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Turkut, Emre}, title = {Turkey: Pandemic Governance and Executive Aggrandisement}, series = {Routledge Handbook of Law and the COVID-19 Pandemic}, booktitle = {Routledge Handbook of Law and the COVID-19 Pandemic}, publisher = {Routledge}, isbn = {9781032078854}, publisher = {Hertie School}, abstract = {The COVID-19 pandemic not only ravaged human bodies but also had profound and possibly enduring effects on the health of political and legal systems, economies and societies. Almost overnight, governments imposed the severest restrictions in modern times on rights and freedoms, elections, parliaments and courts. Legal and political institutions struggled to adapt, creating a catalyst for democratic decline and catastrophic increases in poverty and inequality. This handbook analyses the global pandemic response through five themes: governance and democracy; human rights; the rule of law; science, public trust and decision making; and states of emergency and exception. Containing 12 thematic commentaries and 25 chapters on countries of diverse size, wealth and experience of COVID-19, it represents the combined effort of more than 50 contributors, including leading scholars and rising voices in the fields of constitutional, international, public health, human rights and comparative law, as well as political science, and science and technology studies. Taking stock after the onset of global emergency, this book provides essential analysis for politicians, policy-makers, jurists, civil society organisations, academics, students and practitioners at both national and international level on the best, and most concerning, practices adopted in response to COVID-19 - and key insights into how states and multilateral institutions should reform, adapt and prepare for future emergencies.}, language = {en} } @article{RaiserFlachslandCalı, author = {Raiser, Kilian and Flachsland, Christian and {\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Understanding pledge and review: learning from analogies to the Paris Agreement review mechanisms}, series = {Climate Policy}, journal = {Climate Policy}, doi = {10.1080/14693062.2022.2059436}, pages = {1 -- 25}, abstract = {This article draws lessons for the effectiveness of the Paris Agreement's pledge and review mechanisms from the performance of comparable review mechanisms established under other international treaties. The article employs systematic evidence synthesis methods to review the existing literature on international review mechanisms in the human rights, trade, labour, and monetary policy fields and identifies six common factors influencing their performance. Applying these findings to the Paris Agreement, the analysis finds that its review mechanisms incorporate many of these factors. In particular, they combine both expert and peer review, allow for repeated interaction and capacity building, and facilitate the regular and transparent provision of information. The comparative analysis also highlights two major deficiencies of the Paris Agreement: the absence of procedures to assess the adequacy of national pledges and actions taken to implement them, and resource constraints in carrying out a complex and arduous review process. Active engagement of non-state actors with review mechanisms is identified as a potential remedy to these shortcomings. However, the overall experience of other regimes suggests that, on their own, review mechanisms provide few incentives for states to undertake significant policy changes. Rather, the political context of each regime conditions the performance of review mechanisms. We therefore conclude that the Paris Agreement's review mechanisms alone are unlikely to bring about the necessary ratcheting up of climate policy ambitions.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Strategic Litigation to Vindicate the Rights of Refugees and Migrants: Pyrrhic Perils and Painstaking Progress}, series = {Legal Cases That Changed Ireland}, booktitle = {Legal Cases That Changed Ireland}, editor = {Bacik, Ivana and Rogan, Mary}, publisher = {Clarus Press}, address = {Dublin}, isbn = {9781905536856}, publisher = {Hertie School}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The Search of the Outer Edges of Non-refoulement in Europe}, series = {Human Rights and the Refugee Definition: Comparative Legal Practice and Theory}, booktitle = {Human Rights and the Refugee Definition: Comparative Legal Practice and Theory}, editor = {Burson, Bruce and Cantor, David James}, publisher = {Brill | Nijhoff}, address = {Leiden, Netherlands}, isbn = {978-90-04-28858-4}, doi = {/10.1163/9789004288591}, publisher = {Hertie School}, pages = {180 -- 209}, abstract = {The purpose of this chapter is to examine the relationship between the prohibition on refoulement under human rights law (in particular under the European Convention on Human Rights and Fundamental Freedoms (ECHR)) and protections under international refugee law. It illustrates that the two systems, human rights and refugee law, develop their protections in different modes. I illustrate this divergent development as a riposte to the claim that non-refoulement under human rights law effectively broadens the protection against refoulement in refugee law. Of course, in some ways, that claim is correct, but in other respects human rights non-refoulement is highly limited, particular as regards which rights violations will lead to protection against return. Currently, it tends to focus on Article 3 ECHR, the right not to be subjected to torture, inhuman and degrading treatment. The chapter critiques the outer edges of human rights non-refoulement, in particular the ECtHR's 'flagrant breach' caselaw.}, language = {en} } @incollection{CostelloHancox, author = {Costello, Cathryn and Hancox, Emily}, title = {The Recast Asylum Procedures Directive: Caught between the Sterotypes of the Abusive Asylum-Seeker and the Vulnerable Refugee}, series = {Reforming the Common European Asylum System: The New European Refugee Law}, booktitle = {Reforming the Common European Asylum System: The New European Refugee Law}, editor = {Chetail, Vincent and Philippe, De Bruycker and Maiani, Francesco}, publisher = {Brill Nijhoff}, address = {Leiden, Netherlands}, isbn = {9789004308664}, doi = {10.1163/9789004308664}, publisher = {Hertie School}, pages = {375 -- 445}, abstract = {This piece provides a detailed analysis of the Recast Asylum Procedures Directive (Recast APD). Although we are now two decades into harmonization of asylum procedures at the European Union (EU) level, we begin in Part 2 by revisiting the rationale for this process. We contend that the most persuasive rationale for procedural harmonization, in an EU legally committed to refugee protection, is to ensure fair procedures, and to prevent a race to the bottom in procedural standards. Efficiency must serve fairness, not vice versa. The original Asylum Procedures Directive (APD) failed to meet this aim by a long margin. The Recast APD is the product of the new, post-Lisbon legislative environment, so as Part 3 suggests, it comes with high hopes for improvement, particularly given the Parliament's relatively new role as co-legislator on asylum matters. Our analysis reveals that the Recast APD contains many improvements on its predecessor, but overall our assessment is mixed, particularly if we assess it in terms of the objective of setting clear basic minimum standards of fairness. We attempt to explain this ambivalent outcome by suggesting that the Directive reflects two competing stereotypical views of the asylum seeker. On the one hand, there is a strong notion that asylum procedures must work to weed out 'abusive' claims. In contrast, there is also a strong acknowledgement that some asylum seekers are particularly vulnerable or have special needs (as will be seen, different terminologies are used in different contexts). As we argue, these stereotypes create complexity, and crowd out the basic notion of refugee status determination (RSD) as a process for recognising refugees, on the assumption that many (although of course not all) of those who apply will be so recognised.}, language = {en} } @incollection{FreedlandCostello, author = {Freedland, Mark and Costello, Cathryn}, title = {Migrants at Work and the Division of Labour Law}, series = {Migrants at Work: Immigration and Vulnerability in Labour Law}, booktitle = {Migrants at Work: Immigration and Vulnerability in Labour Law}, editor = {Costello, Cathryn and Freedland, Mark}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198714101}, doi = {10.1093/acprof:oso/9780198714101.003.0001}, publisher = {Hertie School}, pages = {1 -- 28}, abstract = {This is the opening chapter of the edited collection Costello \& Freedland (eds) Migrants at Work: Immigration and Vulnerability in Labour Law (OUP, 2014). Drawing on the wide-ranging contributions to that collection, it identifies the intersection between migration law and labour law, and explores the analytical and normative significance of that intersection. The fact of immigration, and more particularly the various kinds of status which migration law accords to immigrants, are a source of divisiveness in labour law. Existing divisions within labour law, both between labour law's objectives and its subjects, are exacerbated, and new divisions created. We do not posit the figure of the migrant as vulnerable, but rather identify how migration law creates vulnerability by distorting the employment relationship. In particular, migration law often increases the dependency between worker and employer, and exacerbates the precariousness of the relationship. We identify the unresolved normative tension between the objectives of expanding employers' access to migrant workers; protecting the employment prospects and conditions of local worker; and acknowledging the importance of migration for the life chances and even, in some instances, survival of migrants. Various regulatory strategies to overcome these tensions and heal these divisions are explored, across migration, human rights and labour law.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Migrants and Forced Labour: A Labour Law Response}, series = {The Autonomy of Labour Law}, booktitle = {The Autonomy of Labour Law}, publisher = {Hart Publishing}, address = {Oxford}, isbn = {9781782254645}, publisher = {Hertie School}, abstract = {In this chapter I illustrate, that immigration law, the immigration process and labour market structures may interact to create vulnerability to forced labour, drawing on empirical studies in the UK. Section II begins with some reflection on labour law's autonomy. Section III seeks to clarify 'forced labour'. I examine in turn the binary between 'free' and 'unfree' labour in political economy, and the notion of a continuum from free labour to the ultimate form of unfreedom, slavery. While both the binary and continuum approaches are illuminating, neither approach entirely befits the legal task of identifying the human rights violation that is forced labour. The distinct legal labels of 'slavery', 'servitude' and 'forced labour' are legal concepts embodying distinctive institutional forms of work relation. This part also explores how prohibitions on trafficking, in contrast, introduce a distinctive, potentially distortive focus on migration control and criminalization into this field. In light of the preceding discussion, Section IV examines how the migration process and immigration law create fertile conditions for forced labour. Some features of immigration law, such as precarious and irregular migration status are liable to increase dependency in work relations, which can induce domination. However, this part also considers how those with secure migration status, namely EU citizens in the UK, are also vulnerable to forced labour. In light of this analysis, Section V then critiques the current legal responses to forced labour. These responses should be of concern to labour lawyers, as they obscure general labour rights concerns, and the regulatory conditions that are fertile for forced labour. The UK exemplifies the tendency to obscure labour law concerns, with a Bill on 'modern slavery' going through Parliament at the time of writing, proposing life sentences for those convicted of human trafficking, slavery, forced labour and domestic servitude. The criminal approach focuses on the outcome (the forced labour itself), rather than understanding the laws, practices and regulatory gaps that set up the vulnerability to forced labour. Accordingly, I contrast this criminal law approach with the labour law approach, taking into account the 2014 Protocol to the ILO Convention on Forced Labour. A third approach focuses on human rights law. As currently interpreted, the human rights approach is parasitic on the criminal law approach. I argue that a more progressive (ie orthodox labour law) interpretation of human rights law on forced labour is appropriate and necessary. A labour law approach should ideally entail three main elements, which are briefly sketched here. First, it should insulate labour rights from migration status. Secondly, it should regulate labour intermediaries. Thirdly, it should develop better collective and institutional protections for labour rights. Evidently this is not labour law as we find it in the UK today. However, the evidence of extreme labour exploitation and forced labour demands an urgent revisitation of the norms and institutions of labour law.}, language = {en} } @book{Costello, author = {Costello, Cathryn}, title = {The Human Rights of Migrants and Refugees in European Law}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780199644742}, doi = {10.1093/acprof:oso/9780199644742.001.0001}, publisher = {Hertie School}, pages = {400}, abstract = {This book examines key aspects of European Union (EU) law on immigration and asylum, where EU standards overlap with human rights protections and international refugee law. It focuses on questions of migration status and security of residence, family migration, refugee protection, and immigration detention. The uniting theme is the interaction between established human rights norms, in particular the European Convention on Human Rights (ECHR) and EU law. It thus provides a scholarly analysis of EU and ECHR migration and refugee law, including the post-Amsterdam legislative measures and their recasts, and the Court of Justice's key post-Amsterdam rulings and corresponding Strasbourg case law. In so doing, it provides important insights into the roles of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) as generators of migrant rights, aiding understanding of their positions and interactions with each other. Integrating doctrinal, empirical, and theoretical material on social membership, global justice, and the construction of 'illegality' in migration law into the EU context, it provides a panoramic account of the EU's role in determining who may reside in the EU, and under what terms.}, language = {en} } @book{BoggCostelloDaviesetal., author = {Bogg, Alan and Costello, Cathryn and Davies, A.C.L. and Adams-Prassl, Jeremias}, title = {The Autonomy of Labour Law}, publisher = {Hart Publishing}, address = {Oxford}, isbn = {9781782254645}, doi = {10.5040/9781474200899}, publisher = {Hertie School}, pages = {304}, abstract = {To what extent is labour law an autonomous field of study? This book is based upon the papers written by a group of leading international scholars on this theme, delivered at a conference to mark Professor Mark Freedland's retirement from his teaching fellowship in Oxford. The chapters explore the boundaries and connections between labour law and other legal disciplines such as company law, competition law, contract law and public law; labour law and legal methodologies such as reflexive governance and comparative law; and labour law and other disciplines such as ethics, economics and political philosophy. In so doing, it represents a cross-section of the most sophisticated current work at the cutting edge of labour law theory.}, language = {en} } @book{Costello, author = {Costello, Cathryn}, title = {Equality in Diversity: The New EC Equality Directives}, editor = {Costello, Cathryn and Barry, Eilis}, publisher = {Irish Centre for European Law}, address = {Dublin}, isbn = {9781897606360}, publisher = {Hertie School}, language = {en} } @book{Costello, author = {Costello, Cathryn}, title = {Fundamental Social Rights: Current Legal Protection and the Challenge of the EU Charter of Fundamental Rights}, editor = {Costello, Cathryn}, publisher = {Irish Centre for European Law}, address = {Dublin}, isbn = {9781897606315}, publisher = {Hertie School}, language = {en} } @article{CostelloMann, author = {Costello, Cathryn and Mann, Itamar}, title = {Border Justice: Migration and Accountability for Human Rights Violations}, series = {German Law Journal}, volume = {21}, journal = {German Law Journal}, number = {1}, doi = {https://doi.org/10.1017/glj.2020.27}, pages = {311 -- 334}, abstract = {This introductory Article sets out the premise of the Special Issue, the entrenched and pervasive nature of human rights violations in the context of migration control and the apparent lack of accountability for such violations. It sets out features of contemporary migration control practices and their legal governance that contribute to this phenomenon, namely the exceptional treatment of migration in international law; the limited scope of international refugee law; and the pervasive use of externalized, delegated migration controls, in particular by the EU and its Member States. The roots of the current condition are traced back to the containment practices that emerged at the end of the Cold War, with the 2015 "crisis" framed both as an illustration of the failures of containment, and a source of further stasis. Following an overview of the contributions that make up the Special Issue, this Article identifies five emergent themes, and suggests further lines of inquiry. These are: the promise and limits of strategic human rights limitations; the role of both international criminal law, and domestic (and regional) tort law in securing accountability; the turn to positive obligations to challenge entrenched features of containment; and the role of direct action in support of and solidarity with those challenging migration controls most directly, refugees and migrants themselves. Rather than offering panaceas, the Article concludes with the identification of further new challenges, notably the role of new technologies in further dissipating lines of accountability for decisions to exclude.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Overcoming Refugee Containment and Crisis}, series = {German Law Journal}, volume = {21}, journal = {German Law Journal}, number = {1}, doi = {10.1017/glj.2019.89}, pages = {17 -- 22}, abstract = {Imagine a system in which you had to break the law and risk your life in order to enjoy its key right, a right to live lawfully in a political and legal community. That is the open secret at the heart of the so-called "Common European Asylum System" ("CEAS"). The EU and its Member States systematically erect barriers for those who would enter to claim asylum, forming part of the system of the containment of refugees in the Global South. Refugee containment is not only a European practice, but many of the policies and practices that are central to refugee containment are of fairly recent European origin. This Article identifies the costs of this refugee containment, not only for refugees and asylum-seekers, but also for Europe itself, its politics, and its adherence to the rule of law in particular. Containment contributed to the events styled as the 2015 refugee crisis in Europe, yet the crisis has generated a more intensified set of containment practices, also likely to backfire. This Article first sets out the costs of containment, and second suggests how Europe might overcome the containment-induced crisis and work to dismantle at least some aspects of containment.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Refugees and (Other) Migrants: Will the Global Compacts Ensure Safe Flight and Onward Mobility for Refugees?}, series = {International Journal of Refugee Law}, volume = {30}, journal = {International Journal of Refugee Law}, number = {4}, doi = {10.1093/ijrl/eey060}, pages = {643 -- 649}, abstract = {Conclusion: Hannah Arendt's 1943 essay, 'We Refugees', begins: 'In the first place, we don't like to be called "refugees". We ourselves call each other "newcomers" or "immigrants"'. The essay demonstrates that for the refugees, of whom she was one, the label 'immigrant' was preferable. It reflected a desire to get on and integrate, rather than neediness. That impulse to avoid the 'refugee' label may still be common today, particularly from those keen to avoid rights restriction or stigmatization. However, the 'refugee' label today is also instrumentalized to downplay the protection needs of others - those who may not be recognized as refugees (even though they ought to be), and those who are not refugees in any sense, but nonetheless require international protection. The New York Declaration and the bifurcated Global Compacts risk endorsing an unduly narrow conception of refugeehood, and failing to root out the refugee containment that taints the global refugee regime. However, I also offer a more constructive reading, emphasizing the overarching concept of international protection, and obligations to avoid harm in migration governance.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Safe Country? Says Who?}, series = {International Journal of Refugee Law}, volume = {28}, journal = {International Journal of Refugee Law}, number = {4}, doi = {10.1093/ijrl/eew042}, pages = {601 -- 622}, abstract = {In 1991, Professor Guy S Goodwin-Gill reflected on the emerging safe country of origin (SCO) practices in an editorial in the International Journal of Refugee Law, entitled 'Safe Country? Says Who?'. This article reflects on developments regarding SCO practices since his prescient editorial, focusing on both Europe, where they originated, and Canada. The article first explores how SCO practices have developed in European law and practice since their inception, including the role of European courts in assessing their legality. This European experience is then contrasted with Canada's short-lived experiment with its analogous Designated Country of Origin (DCO) system, which, in 2015, was deemed unconstitutional by the Federal Court of Canada.}, language = {en} } @incollection{CostelloFoster, author = {Costello, Cathryn and Foster, Michelle}, title = {Non-refoulement as custom and jus cogens? Putting the prohibition to the test}, series = {Netherlands Yearbook of International Law}, volume = {46}, booktitle = {Netherlands Yearbook of International Law}, publisher = {Hertie School}, pages = {273 -- 327}, abstract = {The norm of non-refoulement is at the heart of the international protection of refugees yet there remains a lack of consensus as to its status. In this contribution, we examine the question whether it has attained the status of a jus cogens norm. Adopting the methodology of 'custom plus' we first examine whether non-refoulement has attained the status of custom, concluding that widespread state practice and opinio juris underpin the view that it is clearly a norm of customary international law. Moreover, much of this evidence also leads to the conclusion that it is ripe for recognition as a norm of jus cogens, due to its universal, non-derogatory character. In other words, it is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted. The chapter then examines the consequences for its recognition as jus cogens, exploring some of the many ways in which jus cogens status may have meaningful implications for the norm of non-refoulement.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Immigration Detention: The Grounds Beneath our Feet}, series = {Current Legal Problems}, volume = {68}, journal = {Current Legal Problems}, number = {1}, doi = {10.1093/clp/cuv015}, pages = {143 -- 177}, abstract = {Detention as part of migration control is sometimes portrayed as a 'necessary adjunct' of the state's power to control immigration. This characterization is a masking device, obscuring the grounds of detention (or the lack thereof) from proper scrutiny. It has convincingly been argued that human rights law fails to scrutinize the necessity of immigration detention. Many scholars have pointed out the anomalous approach to assessing the legal justifications for immigration detention, compared with other forms of deprivation of liberty, which are more powerfully constrained by human rights law. Yet, cogent as this critique is, it sometimes fails to interrogate the related questions concerning the legal grounds of detention. A ground is a particular form of legal reason, which both explains and justifies the official action in question. By examining the question of grounds, this article aims to elucidate the manner in which immigration law itself produces reasons to detain, and by doing so creates detainable subjects, migrants. Basic liberty-protective principles and practices developed in other areas of law are notably absent. This state of affairs is not inevitable, and legal alternatives are within reach.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {The Ruling of the Court of Justice in NS/ME on the fundamental rights of asylum seekers under the Dublin Regulation: Finally, an end to blind trust across the EU?}, series = {Asiel- en Migrantenrecht}, journal = {Asiel- en Migrantenrecht}, pages = {83 -- 92}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored}, series = {Human Rights Law Review}, volume = {287}, journal = {Human Rights Law Review}, doi = {10.1093/hrlr/ngs011}, pages = {287 -- 339}, abstract = {This article explores access to refugee protection, which in practice means access to a place of refuge, in light of various barriers to protection erected by European States. First, European States increasingly extend their border controls beyond their territorial borders and co-operate in order to prevent those seeking protection from reaching their territory. Yet, legal obligations, in particular the principle of non-refoulement, may continue to apply to these activities, as the concept of 'jurisdiction' in human rights law develops. Second, they engage a further, diametrically opposed move, where they purport to act as a single zone of protection, and allocate responsibility for asylum claimants in a manner that also hinders access to protection. The aim of this article is to explore the recent responses of Europe's two supranational courts, the European Court of Human Rights (ECtHR or 'Strasbourg') and the Court of Justice of the European Union (CJEU or 'Luxembourg'), in confronting these attempts to limit and manage access to protection in the EU. Its focus is the ECtHR ruling in Hirsi Jamaa v Italy (condemning Italy's pushback of migrants intercepted on boats in the Mediterranean to Libya), as well as that in MSS v Belgium and Greece (concerning the Dublin system for allocation of responsibility for processing asylum claims) and the subsequent CJEU ruling in NS/ME.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Human Rights and the Elusive Universal Subject: Immigration Detention under International Human Rights and EU Law}, series = {Indiana Journal of Global Legal Studies}, volume = {19}, journal = {Indiana Journal of Global Legal Studies}, number = {1}, doi = {10.2979/indjglolegstu.19.1.257}, pages = {257 -- 303}, abstract = {The right to liberty is ubiquitous in human rights instruments, in essence protecting all individuals from arbitrary arrest and detention. Yet, in practice, immigration detention is increasingly routine, even automatic, across Europe. Asylum seekers in particular have been targeted for detention. While international human rights law limits detention, its protections against immigration detention are weaker than in other contexts, as the state's immigration control prerogatives are given sway. In spite of the overlapping authority of international and regional human rights bodies, the caselaw in this field is diverse. Focusing on the U.N. Human Rights Committee, the European Court of Human Rights, and the Court of Justice of the European Union, this Article explores how greater interaction between these bodies could produce more rights-protective standards.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Metock: Free Movement and "Normal Family Life" in the Union}, series = {Common Market Law Review}, volume = {46}, journal = {Common Market Law Review}, number = {2}, pages = {587 -- 622}, abstract = {This article examines the ECJ's ruling, following an exceptional accelerated procedure, in Case C-127/08 Metock, of 25 July 2008. The article praises the Court's boldness in abandoning the "prior lawful residence" requirement for residence rights of third-country national (TCN) family members of migrant EU Citizens, explicitly overruling Akrich on this issue. Its reasoning is bold, yet economical, grounded in the 2004 Citizenship Directive and right to free movement of EU citizens. However, the article is critical of the failure to publish the Opinion of AG Maduro and the sparse reasoning in the case. The ECJ's fundamental rights reticence is particularly striking, in particular as its conception of the residence rights inherent in "normal family life" diverges from the analogous protections under Article 8 ECHR. Although Metock was an easy transborder case concerning migrant EU citizens resident in another EU Member State, the article also argues that the denial of the EC dimension to the family reunification claims of static EU citizens against their home Member States is increasingly untenable.}, language = {en} } @article{CostelloDavies, author = {Costello, Cathryn and Davies, Gareth}, title = {The Case Law of the Court of Justice in the Field of Sex Equality Since 2000}, series = {Common Market Law Review}, volume = {43}, journal = {Common Market Law Review}, number = {6}, pages = {1567 -- 1616}, abstract = {This article examines developments in EC sex equality law from 1 April 2000 to 4 October 2006, continuing this journal's tradition of periodic reviews of developments in this field. We focus on the case law of the European Court of Justice, along with one judgment of the EFTA court, taking into account the changing legislative and constitutional context. In the period under review, this context has changed in several ways.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe}, series = {Human Rights Law Review}, volume = {6}, journal = {Human Rights Law Review}, number = {1}, doi = {10.1093/hrlr/ngi038}, pages = {87 -- 130}, abstract = {The recent case of Bosphorus Airlines v Ireland provided the European Court of Human Rights (ECtHR) with an opportunity to refine further its relationship with the EU. In particular, the ECtHR was called upon to clarify when States could be held responsible for actions taken under the banner of the EU. This article examines the status quo prior to the Bosphorus judgment, and then scrutinises the judgment itself, focusing particularly on the use and scope of the doctrine of 'equivalent protection' to determine State responsibility. The doctrine as outlined in Bosphorus is applied to some likely scenarios involving EU action and its relative merits and disadvantages are discussed. The article also briefly addresses the further global implications of the judgment, namely for the legal accountability of the UN Security Council and the ongoing issue of responsibility of international organisations under international law.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Ireland's Nice Referenda}, series = {European Constitutional Law Review}, volume = {1}, journal = {European Constitutional Law Review}, number = {3}, doi = {10.1017/S1574019605003573}, pages = {357 -- 382}, abstract = {Part One: Referenda required to amend Irish Constitution. Referenda on accession to EEC, the Single European Act, Maastricht and Amsterdam. Development by courts of rules for fairness of referendum campaigns. Referendum Acts and Referendum Commission. Part Two: First Nice Referendum dominated by euro-anxiety, Irish neutrality and enlargement. Second referendum on same subject not unusual and acceptable according to domestic criteria. Concessions and clarifications. Effect on the Convention on the Future of Europe. Part Three: implications for the Constitutional Treaty.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection}, series = {European Journal of Migration Law}, volume = {7}, journal = {European Journal of Migration Law}, number = {1}, doi = {10.1163/1571816054396842}, pages = {35 -- 69}, language = {en} } @article{CostelloDrake, author = {Costello, Cathryn and Drake, Sara}, title = {State liability in damages in the Irish and UK Courts}, series = {European Public Law}, volume = {9}, journal = {European Public Law}, pages = {366 -- 389}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {The Preliminary Reference Procedure and the 2000 Intergovernmental Conference}, series = {Dublin University Law Journal}, volume = {21}, journal = {Dublin University Law Journal}, pages = {40 -- 66}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Market Access All Areas - The Treatment of Non-discriminatory Barriers to the Free Movement of Workers}, series = {Legal Issues on Economic Integration}, volume = {27}, journal = {Legal Issues on Economic Integration}, number = {3}, pages = {267 -- 277}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Victim or Perpetrator? The Criminalised Migrant and the Idea of 'Harm' in the Labour Market Context}, series = {Criminality at Work}, booktitle = {Criminality at Work}, editor = {Blogg, Alan and Collins, Jennifer and Freedland, Mark and Herring, Jennifer}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198836995}, doi = {10.1093/oso/9780198836995.003.0016}, publisher = {Hertie School}, pages = {309 -- 326}, abstract = {This chapter provides powerful arguments against the criminalization of irregular migration. It does so by testing the extensive criminalization of irregular migrants against standard liberal principles of criminalization. The chapter argues that it is very difficult to identify any direct wrongs or harms to others that arise in virtue of 'irregular' migration. Furthermore, a malum prohibitum offence cannot be justified. Against these weak arguments in favour of criminalization, this chapter identifies compelling reasons against criminalization. Criminalization leads to further criminalization, which ultimately undermines both migrants' and local workers' fundamental rights. It also blocks discussion of one particularly worker-protective regulatory response to irregular migration, namely regularization. In truth, the criminalization of migrants represents a context where there has been a decisive rupture with liberal principles of criminalization.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {On Refugeehood and Citizenship}, series = {Oxford Handbook of Citizenship}, booktitle = {Oxford Handbook of Citizenship}, editor = {Shachar, Ayelet and Baub{\"o}ck, Rainer and Bloemraad, Irene and Vink, Maarten}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198805854}, doi = {10.1093/oxfordhb/9780198805854.013.31}, publisher = {Hertie School}, abstract = {This chapter explores the relationship between citizenship and refugeehood. In particular, it examines the extent to which loss of meaningful citizenship defines the predicament of the refugee. It then examines the status of refugee and refugee rights. Thirdly, it considers how refugeehood comes to an end, in particular the role of citizenship (new or restored) in ending refugeehood. Citizenship is formally viewed as bringing refugeehood to an end, whether that emerges as return to the home country or naturalisation in a new state. However, in practice, a new citizenship for many refugees remains out of reach, and the status of refugee often becomes an intergenerational carrier of civic and social exclusion. The reflects the realities of refugee containment, in contrast to the vision of shared responsibility that underpins the 1951 Convention on the Status of Refugees and the refugee regime.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {EU Migration and Asylum Law: A Labour Law Perspective}, series = {Research Handbook on EU Labour Law}, booktitle = {Research Handbook on EU Labour Law}, publisher = {Edward Elgar Publishing}, address = {Cheltenham, UK and Northampton, MA}, doi = {10.4337/9781783471126.00020}, publisher = {Hertie School}, pages = {299 -- 335}, abstract = {The purpose of this chapter is survey EU migration and asylum law from a labour law perspective. A labour law perspective is concerned with the work relationship, and focuses not only on the worker, but also the employing organisation and any intermediary involved in labour supply. Examining EU migration and asylum law using this multifaceted prism of labour law reveals that EU migration and asylum law has a profound impact on labour law. That impact may be understood has having three different dimensions. (1) It affects the supply and demand for migrant workers. In this sense, migration law can be a form of labour market regulation. (2) migration and asylum law create different migration statuses that in turn determine, at least in part, labour rights. The move to re-introduce status over contract as a determinant of workers' rights divides the subjects of labour law. (3) Migration status and the fact of migration may be risk factors for labour exploitation. In order to examine these three facets, the particular role of the EU in this field must be explained. Part 1 provides a sketch of the role of states and markets in the regulation of migration. It sets the scene to understand the profound but limited role of the EU in this context. Part 2 examines the status of EU Citizenship, and the forms of liberalised free movement in the EU's internal market, that principally benefit those who hold the nationality of an EU Member State. I also consider two important derivative statuses for so-called third country nationals (TCNs), who gain EU rights as family members of EU Citizens and so-called 'posted workers'. Part 3 concerns those TCNs who require permission to live and work in the EU, and provides an overview of some of the different statuses created by EU law, and their labour rights content. Part 4 explores the notion of 'irregular status', and the EU Employer Sanctions Directive and the ruling of the Court of Justice of the European Union (CJEU) in T{\"u}mer contrasted. In the final part, Part 6, I briefly highlight some features of migration status that are risk factors for labour exploitation. A recent EU Fundamental Rights Agency Report details the links between migration and extreme labour exploitation. Current responses focus unhelpfully on trafficking, or on forced labour, and look in particular to criminal law for solutions. This chapter recalls some responses from within labour law. It is suggested that further research is required into the question of which regulatory approaches and combinations thereof work best to protect migrant workers from exploitation.}, language = {en} } @incollection{CostelloMouzourakis, author = {Costello, Cathryn and Mouzourakis, Minos}, title = {The Common European Asylum System - Where did it all go wrong?}, series = {The European Union as an Area of Freedom, Security and Justice}, booktitle = {The European Union as an Area of Freedom, Security and Justice}, editor = {Fletcher, Maria and Herlin-Karnell, Ester and Matera, Claudio}, publisher = {Routledge}, address = {Abingdon, Oxford}, isbn = {9780367193454}, doi = {10.4324/9781315738284}, publisher = {Hertie School}, pages = {263 -- 300}, language = {en} } @incollection{CostelloFreedland, author = {Costello, Cathryn and Freedland, Mark}, title = {Seasonal Workers and Intra-Corporate Transferees in EU Law: Capital's Handmaidens?}, series = {Temporary Labour Migration in the Global Era: The Regulatory Challenges}, booktitle = {Temporary Labour Migration in the Global Era: The Regulatory Challenges}, editor = {Howe, Joanna and Owens, Rosemary}, publisher = {Hart Publishing}, address = {Oxford and Portland, Oregon}, isbn = {9781509906291}, doi = {10.5040/9781509906307.ch-002}, publisher = {Hertie School}, pages = {43 -- 64}, abstract = {This chapter compares and contrasts two recent European enactments on particular forms of temporary labour migration: seasonal work and intra-corporate transfers (ICTs). Both the Seasonal Workers Directive (SWD)1 and the ICT Directive (ICTD)2 were adopted in 2014. They are typical of the EU's piecemeal approach to labour migration, which creates a multiplicity of distinct statuses.3 We frame the comparison in light of our previous work examining the impact of migration law on labour law (section II). By way of general contribution to this collection's themes, we also offer some observations on the challenges of regulating temporary labour migration under current conditions of globalisation (section III), and seek to explain some of the specificities of the EU's role in regulating immigration (section IV)}, language = {en} } @misc{OPUS4-4488, title = {Secondary Rules of Primary Importance in International Law: Attribution, Causality, Evidence, and Standards of Review in the Practice of International Courts and Tribunals}, editor = {Kajt{\´a}r, G{\´a}bor and {\c{C}}al{\i}, Ba{\c{s}}ak and Milanovic, Marko}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780192869012}, pages = {368}, abstract = {The focus of this edited volume is the often-overlooked importance of secondary rules of international law. Secondary rules of international law-such as attribution, causality, and the standard and burden of proof-have often been neglected in scholarly literature and have seen fragmented application in international legal practice. Yet the systemic nature of international law entails that coherent and consistent application of such rules is a key element in reinforcing the legitimacy of decisions of international courts and tribunals. Accelerated development of international law and international litigation, coupled with the fragmented nature of the adjudicatory terrain calls for theoretical scrutiny and systemic analysis of the developments in the judicial treatment of secondary rules. This publication makes three important contributions to the study of secondary rules. First, it offers a comprehensive, expert doctrinal analysis of how standard of review, causation, evidentiary rules, and attribution operate in the case law of international courts or tribunals in fields spanning human rights, trade, investment, and humanitarian law. Second, it comparatively evaluates the divergent layers of meanings and normative expectations attached to secondary rules in international law scholarship as well as in the judicial practice of international courts and tribunals. Finally, the book investigates the role that secondary rules play in the development of the primary rules in international law and for the legitimacy of the decisions of international courts and tribunals. Earlier scholarly works have not problematized the role of secondary rules of international law in adjudication thoroughly. Secondary Rules of Primary Importance in International Law seeks to fill this gap by emphasizing the consequential nature of these secondary rules and argues that the outcome of litigation is fundamentally shaped by the exact standard of proof, standard of review, or attribution basis that is chosen by adjudicators. As such, the book offers an important resource for the study and practice of international law against the backdrop of the wide-ranging and fragmented nature of international adjudication.}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Regional protection}, series = {International Human Rights Law}, booktitle = {International Human Rights Law}, publisher = {Oxford University Press}, isbn = {978-0198860112}, publisher = {Hertie School}, abstract = {Written by leading experts in the field, this compelling textbook explores the essentials of international human rights law, from foundational issues to substantive rights and systems of protection. A variety of perspectives bring this multifaceted and sometimes contentious subject to life, making International Human Rights Law the ideal companion for students of human rights.}, language = {en} } @techreport{Nah, type = {Working Paper}, author = {Nah, Alice M.}, title = {Refugee Recognition Regime Country Profile: Malaysia}, edition = {No. 06}, doi = {10.48462/opus4-5175}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-51754}, pages = {47}, abstract = {This report focuses primarily on the actions of the United Nations High Commissioner for Refugees (UNHCR) because of its central and contested role in refugee protection. Drawing on primary and secondary data, it reviews how UNHCR has developed a range of protection interventions, some non-ideal, in response to the actions of state and non-state actors who maintain a hostile environment for migrants with irregular status.}, language = {en} } @article{Baranaowska, author = {Baranaowska, Grażyna}, title = {Pushbacks in Poland: Grounding the Practice in Domestic Law in 2021}, series = {Polish Yearbook of International Law}, volume = {41}, journal = {Polish Yearbook of International Law}, doi = {10.24425/PYIL.2022.142346}, pages = {193 -- 211}, abstract = {In the summer of 2021 deliberate actions by the Belarusian state authorities led to a huge increase of people irregularly crossing the border from Belarus to Poland. Instead of addressing this humanitarian crisis, the Polish government responded with actions that were in violation of its international obligations and domestic law. Among these measures was carrying out "pushbacks" and grounding them in Polish domestic law. "Pushbacks" are the practice of returning people to the border without assessing their individual situation. The formalization of those practices in 2021 was done within two legal frameworks; one interim and one permanent. They continue to function in parallel while containing different provisions. This article assesses the two frameworks' compatibility with domestic and international law and concludes that they both violate domestic and international rules. In the context of EU law, the article demonstrates the incompatibility of the two frameworks with the so-called Asylum Procedures Directive and Return Directive. The article urther argues that the pushbacks violate the European Convention of Human Rights and would not fall within the exceptions to the prohibition of collective expulsions.}, language = {en} } @article{Baranaowska, author = {Baranaowska, Grażyna}, title = {How long does the past endure? 'Continuing violations' and the 'very distant past' before the UN Human Rights Committee}, series = {Netherlands Quarterly of Human Rights}, volume = {41}, journal = {Netherlands Quarterly of Human Rights}, number = {2}, doi = {10.1177/09240519231171515}, pages = {97 -- 114}, abstract = {The concept of 'continuing violation' allows reviewing applications concerning effects of violations that started before a treaty came into a force with regard to a state that allegedly committed the violation. This article analyses how the UN Human Rights Committee has recently approached two communications concerning continuing violations that occurred in the 1930s and 1940s (K.K. and Others v Russia; F.A.J. and B.M.R.A. v Spain). It critiques the fact that the Committee has introduced an additional qualification to its case law on continuing violations, namely that it has no jurisdiction over the violations with continuing effect, when underlying violations happened in the 'very distant past'. The article argues that communications raising violations of the families of forcibly disappeared persons - at least these brought by their children - should not be ruled inadmissible because of time constraint since the disappearances. Lastly, the article reveals a tacit influence of the European Court of Human Rights on the Committee in the analysed case law.}, language = {en} } @article{Baranaowska, author = {Baranaowska, Grażyna}, title = {Exposing Covert Border Enforcement: Why Failing to Shift the Burden of Proof in Pushback Cases is Wrong}, series = {European Convention on Human Rights Law Review}, journal = {European Convention on Human Rights Law Review}, doi = {10.1163/26663236-bja10070}, abstract = {The paper analyses how the European Court of Human Rights (ECtHR or the Court) assesses evidence when states conceal border practices, such as pushbacks, comparing the Court's approach in those cases to that in enforced disappearance cases. In both types of cases, states deny that the conduct - which would have violated human rights - has taken place and provide neither the applicants nor the Court with evidence. While surface examination of the relevant case law could suggest that the ECtHR shifts the burden of proof in the same way in both sets of cases, I demonstrate that the Court expects applicants in covert border enforcement cases to provide stronger evidence, which is then labelled as prima facie evidence. I argue that the burden of proof should be shifted in the same way in both scenarios, as the position of the victims and the availability of evidence is strikingly similar.}, language = {en} } @article{DeConinckVanderMaelenBexetal., author = {De Coninck, Joyce and Vander Maelen, Carl and Bex, Fauve and Dua, Odile and Finnerty, Joseph and Inghelbrecht, Febe}, title = {Actualit{\´e}s/News}, series = {Journal europ{\´e}en des droits de l'homme - European Journal of Human Rights (JEDH)}, volume = {2022}, journal = {Journal europ{\´e}en des droits de l'homme - European Journal of Human Rights (JEDH)}, number = {1}, pages = {88 -- 88}, language = {en} } @article{DeConinckVanderMaelenBexetal., author = {De Coninck, Joyce and Vander Maelen, Carl and Bex, Fauve and Dua, Odile and Finnerty, Joseph and Inghelbrecht, Febe}, title = {Actualit{\´e}s/News}, series = {Journal europ{\´e}en des droits de l'homme - European Journal of Human Rights (JEDH)}, volume = {2021}, journal = {Journal europ{\´e}en des droits de l'homme - European Journal of Human Rights (JEDH)}, number = {4-5}, pages = {424 -- 424}, language = {en} } @article{DeConinckVanderMaelenBexetal., author = {De Coninck, Joyce and Vander Maelen, Carl and Bex, Fauve and Dua, Odile and Finnerty, Joseph}, title = {Actualit{\´e}s/News}, series = {Journal europ{\´e}en des droits de l'homme - European Journal of Human Rights (JEDH)}, volume = {2021}, journal = {Journal europ{\´e}en des droits de l'homme - European Journal of Human Rights (JEDH)}, number = {3}, pages = {308 -- 308}, language = {en} } @article{DeConinckVanderMaelenBexetal., author = {De Coninck, Joyce and Vander Maelen, Carl and Bex, Fauve and Van De Velde-van Rumst, Paulien and Dua, Odile and Finnerty, Joseph and Inghelbrecht, Febe}, title = {Actualit{\´e}s/News}, series = {Journal europ{\´e}en des droits de l'homme - European Journal of Human Rights (JEDH)}, volume = {2021}, journal = {Journal europ{\´e}en des droits de l'homme - European Journal of Human Rights (JEDH)}, number = {2}, pages = {206 -- 206}, language = {en} } @article{DeConinckVanderMaelenBexetal., author = {De Coninck, Joyce and Vander Maelen, Carl and Bex, Fauve and Van De Velde-van Rumst, Paulien and Dua, Odile and Finnerty, Joseph and Inghelbrecht, Febe}, title = {Actualit{\´e}s/News}, series = {Journal europ{\´e}en des droits de l'homme - European Journal of Human Rights (JEDH)}, volume = {2021}, journal = {Journal europ{\´e}en des droits de l'homme - European Journal of Human Rights (JEDH)}, number = {1}, pages = {129 -- 129}, language = {en} } @article{Auz, author = {Auz, Juan}, title = {The political ecology of earth system law: outlining a lex capitalocenae}, series = {Wisconsin International Law Journal}, volume = {40}, journal = {Wisconsin International Law Journal}, number = {2}, language = {en} } @techreport{Ozkul, type = {Working Paper}, author = {Ozkul, Derya}, title = {Refugee Recognition Regime Country Profile: Lebanon}, edition = {No. 03}, doi = {10.48462/opus4-5006}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-50060}, pages = {100}, abstract = {Lebanon is one of the most important countries to understand the dynamics of the refugee recognition regime. It has received a large number of displaced people, and since the arrival of Syrians, it has been the highest per capita refugee-hosting country in the world. It is, therefore, crucial to understand how displaced persons are received, how their asylum applications are assessed, and how their protection needs are met in the country. This report describes Lebanon's refugee recognition regime and assesses UNHCR's quality of recognition process and the quality of protection for asylum seekers and refugees. It provides an overview of existing legislation and brings together original insights from legal aid organisations, UNHCR staff, and asylum seekers and refugees. The report, outlined in seven sections, first gives an overview of the existing literature and then explains the methods.}, language = {en} } @techreport{Nalule, type = {Working Paper}, author = {Nalule, Caroline}, title = {Refugee Recognition Regime Country Profile: South Africa}, edition = {No. 02}, doi = {10.48462/opus4-5010}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-50106}, pages = {53}, abstract = {This report examines South Africa's refugee recognition regime which is typified by an individualised refugee status determination (RSD) system that sets it quite apart from other major refugee-hosting countries in Africa, whose major mode of refugee recognition is group-based. The report focuses on a twenty-year period (1998-2018) highlighting the various areas of contestation within the refugee protection space and South Africa's adherence to its obligations, under both domestic and international law. Although extensive work has been carried out regarding the quality of RSD process in South Africa, gaps are still evident with respect to the refugee recognition institutions and their relational dynamics and how this impacts the refugee recognition regime and refugee protection generally. The report is based on desk research and original fieldwork in South Africa among various elites working in the refugee protection area as well as refugees and asylum seekers in South Africa drawn from three nationalities: Somalis, Ethiopians and Congolese from the Democratic Republic of Congo (DRC).}, language = {en} } @incollection{KajtarCalıMilanovic, author = {Kajt{\´a}r, G{\´a}bor and {\c{C}}al{\i}, Ba{\c{s}}ak and Milanovic, Marko}, title = {Introduction: Secondary Rules of Primary Importance}, series = {Secondary Rules of Primary Importance in International Law: Attribution, Causality, Evidence, and Standards of Review in the Practice of International Courts and Tribunals}, booktitle = {Secondary Rules of Primary Importance in International Law: Attribution, Causality, Evidence, and Standards of Review in the Practice of International Courts and Tribunals}, editor = {Kajt{\´a}r, G{\´a}bor and {\c{C}}al{\i}, Ba{\c{s}}ak and Milanovic, Marko}, publisher = {Oxford University Press}, isbn = {9780192869012}, publisher = {Hertie School}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Proving Bad Faith in International Law: Lessons from the Article 18 Case law of the European Court of Human Rights}, series = {Secondary Rules of Primary Importance in International Law: Attribution, Causality, Evidence, and Standards of Review in the Practice of International Courts and Tribunals}, booktitle = {Secondary Rules of Primary Importance in International Law: Attribution, Causality, Evidence, and Standards of Review in the Practice of International Courts and Tribunals}, editor = {Kajt{\´a}r, G{\´a}bor and {\c{C}}al{\i}, Ba{\c{s}}ak and Milanovic, Marko}, publisher = {Oxford University Press}, isbn = {9780192869012}, publisher = {Hertie School}, language = {en} } @techreport{OzkulNalule, type = {Working Paper}, author = {Ozkul, Derya and Nalule, Caroline}, title = {Recognising Refugees: A Review of the Literature and Approaches (1990-2020)}, edition = {No. 01}, doi = {10.48462/opus4-4994}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-49947}, pages = {39}, language = {en} } @techreport{QumriTurner, type = {Working Paper}, author = {Qumri, Samia and Turner, Lewis}, title = {Refugee Recognition Regime Country Profile: Jordan}, edition = {No. 04}, doi = {10.48462/opus4-5082}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-50824}, pages = {68}, abstract = {This paper explores the refugee recognition regime in Jordan, the country hosting the second highest number of refugees per capita in the world. Against the background of a relative dearth of literature on refugee recognition regimes - in Jordan and more widely - this desk-based study analyses the norms, institutions, modes of recognition, quality of recognition processes, and quality of protection of the Jordanian refugee recognition regime. It focuses on the four key national 'cohorts' - Iraqis, Sudanese, Syrians and Yemenis.}, language = {en} } @techreport{Nalule, type = {Working Paper}, author = {Nalule, Caroline}, title = {Refugee Recognition Regime Country Profile: Kenya}, edition = {No. 05}, doi = {10.48462/opus4-5085}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-50854}, pages = {51}, abstract = {This report discusses the evolution of the refugee recognition regime (RRR) in Kenya, chiefly over the period of 2000-2020. It highlights the government's responses towards refugee protection, its bifurcated approach towards refugees based on where they reside, the challenges faced by protection seekers in the recognition process, and the shifts in responsibility between the government and UNHCR. The report is based on extensive desk-based research as well as original fieldwork, including interviews and focus group discussions with adult asylum seekers and refugees, as well as officers involved in refugee status determination (RSD) processes. The research targeted refugees and asylum seekers from the top four recognised nationalities in Kenya in the 20-year period: Somalis, South Sudanese, Ethiopians, and Congolese from the Democratic Republic of Congo (DRC).}, language = {en} } @article{Auz, author = {Auz, Juan}, title = {Human rights-based climate litigation: a Latin American cartography}, series = {Journal of Human Rights and the Environment}, volume = {13}, journal = {Journal of Human Rights and the Environment}, number = {1}, issn = {17597196}, doi = {10.4337/jhre.2022.01.05}, pages = {114 -- 136}, abstract = {This article maps climate litigation developments in Latin America and their human rights and constitutional rights implications. As in other regions of the Global South, groups and individuals in Latin America have engaged in litigation to counter environmental harms threatening or violating the enjoyment of their human rights. Climate change, either as a primary or as a secondary concern, is slowly becoming a key focus of this form of strategic human rights-based litigation. Despite the gradual increase of the 'Latin American docket' of climate litigation cases, very few academic accounts have explored its legal dimensions or its contextual underpinnings. This article addresses this lacuna by identifying and examining the constitutional opportunities for and constraints upon adjudicating climate-related cases through human rights law, and also problematizes the development of climate litigation in Latin America by drawing attention to the influence of extractivist political and economic interests. The categories used for analysis stem from the literature on climate litigation in the Global South, case law and interviews with Latin-American litigants. The article concludes by stressing that this type of climate litigation is increasing and has led to several favourable verdicts, but caution is warranted as some political economy elements might hinder the development of such litigation, its inclusivity and long-term effectiveness.}, language = {en} } @article{Auz, author = {Auz, Juan}, title = {'So, this is Permanence': The Inter-American Human Rights System as Liminal Space for Climate Justice}, series = {Melbourne Journal of International Law}, volume = {22}, journal = {Melbourne Journal of International Law}, number = {2}, issn = {1444-8602}, pages = {187 -- 220}, language = {en} } @article{Auz, author = {Auz, Juan}, title = {Situating the Inter-American Human Rights System in the Oscillation of International Law}, series = {Journal of Law and Political Economy}, volume = {2}, journal = {Journal of Law and Political Economy}, number = {1}, doi = {10.5070/LP62155395}, abstract = {This article considers the Inter-American Human Rights System (IAHRS) as a response to the general assessments of some critical scholarship on international law. It employs the concept of "oscillation of international law" to organize different views of the international human rights and environmental law (IHREL) scholarship, two legal regimes that speak loudest to the IAHRS' interests. These views are distributed within a spectrum that goes from utopian demands placed on IHREL, to apologist defenses of these legal regimes. I put forward a third strand of critical intervention by framing the IAHRS as a space of political and legal contention that promises to address some of the IHREL's shortcomings. I caution, however, that, although the IAHRS functions as an enabling platform for subaltern polities that redraw the boundaries of legal meanings, the system may fall short in tackling challenges that are contingent on global capitalist logics.}, language = {en} } @incollection{Auz, author = {Auz, Juan}, title = {Two Reputed Allies: Reconciling Climate Justice and Litigation in the Global South}, series = {Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action}, booktitle = {Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action}, publisher = {Cambridge University Press}, isbn = {9781009106214}, doi = {10.1017/9781009106214.009}, publisher = {Hertie School}, pages = {145 -- 156}, abstract = {Climate litigation in the Global South is a novel and increasingly prominent phenomenon that prompted a first wave of scholarly work examining and systematizing its main features. Despite the rigour that these academic accounts apply to assessing the main legal arguments of both litigants and courts, they fail to address the possible tensions between climate justice and the consequences of a domestic court decision in developing nations that did not substantially contribute to the climate crisis. This piece aims to fill that gap by using case law from the Global South to examine challenges around remedies, which will underscore the tensions between climate justice and litigation. Thereafter, this piece, drawing from international norms, advocates for the recognition of a duty of international cooperation, which can inform future courts' orders in climate cases in both the Global North and the Global South. This normative exercise provides the basis to reconcile climate litigation in the Global South with climate justice, two reputed allies.}, language = {en} } @article{Turkut, author = {Turkut, Emre}, title = {The Venice Commission and Rule of Law Backsliding in Turkey, Poland and Hungary}, series = {European Convention on Human Rights Law Review}, volume = {2}, journal = {European Convention on Human Rights Law Review}, doi = {10.1163/26663236-bja10028}, pages = {209 -- 240}, abstract = {How did the Council of Europe cope with its member states that engaged in rule of law backsliding? This article analyses the responses of the Venice Commission, the Council of Europe's expert body on constitutional matters, to Turkey, Hungary, and Poland as their governments eliminated key checks and balances on their power, curtailed judicial independence, and undermined political pluralism and civil society. It finds that the Venice Commission managed to address a set of particularly vital issues that get to the heart to rule of law backsliding in these countries. Despite the breadth of the Venice Commission's forthright involvement, these case studies display the limitations on the part of other Council of Europe bodies in forming a coordinated approach and response to rule of law backsliding.}, language = {en} } @article{Turkut, author = {Turkut, Emre}, title = {On the Collateral Impact of Turkey's Authoritarian Turn: Re-securitization of the Kurdish Issue and the Kurds' Struggle for Minority Recognition and Self-Determination}, series = {The Commentaries}, volume = {1}, journal = {The Commentaries}, number = {Vol. 1 No. 1 (2021)}, doi = {10.33182/tc.v1i1.2001}, pages = {97 -- 104}, abstract = {Since the collapse of the peace process in 2015, the Turkish Government has sought to turn every move towards Kurdish rights into an existential threat - a process led to the re-securitization of the Kurdish question. Ever since the descent of Turkey into an authoritarian polity has begun in the aftermath of the June 2015 elections, the Kurdish minority has suffered a brutal crackdown marked by high of political imprisonment and greater restrictions on freedom of assembly and association and on electoral aspects of self-determination. This commentary will take a closer look at the dire consequences of the collateral impact of Turkey's authoritarian turn on the Kurdish political movement from the perspectives of minority rights and self-determination.}, language = {en} } @incollection{TurkutPhillips, author = {Turkut, Emre and Phillips, Thomas}, title = {Non-discrimination, minority rights and self-determination : Turkey's post-coup state of emergency and the position of Turkey's Kurds}, series = {Human rights in Turkey : assaults on human dignity}, booktitle = {Human rights in Turkey : assaults on human dignity}, publisher = {Springer}, address = {Cham}, doi = {10.1007/978-3-030-57476-5_5}, publisher = {Hertie School}, pages = {109 -- 129}, abstract = {States of emergency are often declared due to underlying problems of minority group accommodation, and the extraordinary limitation of rights arising from them tends to have a particularly striking effect on such groups. This was true, for instance, with the emergency measures adopted by the British authorities in the context of the 'Troubles' in Northern Ireland. The same appears true in respect of the Turkish state of emergency in the aftermath of the failed military coup of 15 July 2016 vis-{\`a}-vis the position of Turkey's Kurds. In spite of the fact that the declaration of the state of emergency constituted a response to an attempted coup which was, allegedly, orchestrated by the G{\"u}len Movement, it is clear that the resulting derogating measures have also targeted 'other individuals and organizations', mainly those allegedly connected to the PKK (Kurdistan Workers' Party), and thus extended to Turkey's Kurdish periphery. This chapter seeks to map the impact of the Turkish post-coup derogation measures on Turkey's Kurds and to test them against the non-discrimination principle, minority rights, and the right of self-determination.}, language = {en} } @misc{Welfens, author = {Welfens, Natalie}, title = {Stierl, Maurice. 2019. Migrant Resistance in Contemporary Europe. Routledge: Oxfordshire and New York. 234 pp.}, series = {International Migration}, journal = {International Migration}, doi = {10.1111/imig.12927}, pages = {242 -- 244}, language = {en} } @article{CostelloFoster, author = {Costello, Cathryn and Foster, Michelle}, title = {(Some) refugees welcome: When is differentiating between refugees unlawful discrimination?}, series = {International Journal of Discrimination and the Law}, volume = {22}, journal = {International Journal of Discrimination and the Law}, number = {3}, doi = {10.1177/13582291221116476}, pages = {244 -- 280}, abstract = {Europe's extraordinary response to those fleeing the Russian invasion of Ukraine in February 2022 has prompted many criticisms of Europe's treatment of other refugees, and indeed people of colour and members of ethnic minorities fleeing Ukraine.  While stark, this differentiated response in not unusual:  The global refugee regime treats different refugees differently, as a matter of course.     Refugees often encounter racialized migration controls, and systems which privilege some refugees over others.   The article seeks to clarify when these practices violate the international legal prohibitions on discrimination on grounds of race and nationality.    To do so, it focuses on race discrimination in general international human rights law, clarifying the interaction between general human rights principles and instruments, and the specialist instrument in the field, the International Convention on the Elimination of all Forms of Racial Discrimination.    We identify how differences in treatment on grounds of nationality may engage the prohibition on race discrimination both directly (in particular when nationality equates to national origin) or indirectly. Concerning nationality discrimination, the article focuses in particular on the added value of Article 3 of the 1951 Convention on the Status of Refugees, which obliges states to 'apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.'  We examine Article 3 both within the overall scheme of the Refugee Convention and as a source to guide interpretation of international human rights norms.}, language = {en} } @article{Welfens, author = {Welfens, Natalie}, title = {Ungleicher Zugang. Kategorisierungspraktiken in deutschen humanit{\"a}ren Aufnahmeprogrammen f{\"u}r syrische Gefl{\"u}chtete}, doi = {10.48462/opus4-4719}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-47196}, pages = {17}, abstract = {Dieser Beitrag beleuchtet die Frage, wie politische und soziale Kategorisierungen den Zugang zu Aufnahmeprogrammen regulieren und wie entstehende Ungleichheiten gerechtfertigt werden. {\"U}ber humanit{\"a}re Aufnahmeprogramme nehmen europ{\"a}ische und andere sichere L{\"a}nder eine begrenzet Zahl Schutzsuchender aus Erstzufluchtsl{\"a}ndern auf. Auf Basis von Herkunft, Geschlecht, Alter und anderen Kategorien wird entschieden, wer ›am schutzbed{\"u}rftigsten‹ ist und entsprechend umgesiedelt werden soll. Anhand der deutschen humanit{\"a}ren Aufnahmeprogramme f{\"u}r syrische Gefl{\"u}chtete untersucht der Beitrag Kategorisierungspraktiken aus praxistheoretischer und intersektionaler Perspektive entlang des gesamten Aufnahmeprozesses. Dadurch wird einerseits die Verwobenheit verschiedener Kategorisierungspraktiken unterschiedlicher Akteur:innen und andererseits die Hierarchisierung von Schutzbedarf deutlich.}, language = {de} } @article{Galand, author = {Galand, Alexandre Skander}, title = {Bemba and the Individualisation of War: Reconciling Command Responsibility under Article 28 Rome Statute with Individual Criminal Responsibility}, series = {International Criminal Law Review}, volume = {20}, journal = {International Criminal Law Review}, number = {4}, doi = {10.1163/15718123-bja10018}, pages = {669 -- 700}, abstract = {Never has the doctrine of command responsibility been shaken as when the Appeal Chamber of the International Criminal Court issued the Bemba Appeal Judgment. The latter solely addresses whether the defendant - Jean-Pierre Bemba, former Commander-in-chief of the Mouvement de lib{\´e}ration du Congo - took reasonable and necessary measures to prevent or punish his subordinates' crimes perpetrated in the Central African Republic. Yet, the various dissenting, separate and concurring opinions advocate opposing positions on the scope, elements and nature of this notorious doctrine. This paper relocates the 'sharp disagreements' that surfaced during the Bemba Appeal Judgment within the broader phenomena of the individualisation of war. Through an in-depth examination of the interpretation offered by the appellate judges, it designs a model of command responsibility that properly individualises Article 28 Rome Statute, and, by the same token, respect the fundamental rights of military commanders.}, language = {en} } @article{Galand, author = {Galand, Alexandre Skander}, title = {The Crime of Aggression: A Commentary}, series = {European Journal of International Law}, volume = {31}, journal = {European Journal of International Law}, number = {3}, doi = {10.1093/ejil/chaa076}, pages = {1176 -- 1183}, language = {en} } @incollection{Galand, author = {Galand, Alexandre Skander}, title = {Revision of Judgment: International Criminal Courts and Tribunals}, series = {Max Planck Encyclopedias of International Law}, booktitle = {Max Planck Encyclopedias of International Law}, publisher = {Hertie School}, language = {en} } @techreport{Jones, type = {Working Paper}, author = {Jones, Martin}, title = {Refugee Recognition Regime Country Profile: Egypt}, doi = {10.48462/opus4-5213}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-52136}, pages = {59}, abstract = {This paper explores the refugee recognition regime in Egypt, a major host of refugees in the Middle East and North Africa region and one of UNHCR's largest refugee status determination operations. Although the situation of refugees in Egypt has been the subject of significant study, this paper seeks to address, through a desk-based study, the nature and performance of the refugee recognition regime in Egypt, in particular the norms, institutions, modes of recognition, quality of recognition processes and quality of protection that is available to refugees in Egypt. The main findings are detailed in this executive summary.}, language = {en} } @misc{CostelloFreedland, author = {Costello, Cathryn and Freedland, Mark}, title = {Migrants at Work: Immigration and Vulnerability in Labour Law}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198714101}, doi = {10.1093/acprof:oso/9780198714101.001.0001}, pages = {512}, abstract = {This collection has its origins in the recognition that there is a highly significant and under-considered intersection and interaction between migration law and labour law. It is the culmination of a collaborative project on 'Migrants at Work' funded by the John Fell Fund, the Society of Legal Scholars and the Research Centre at St John's College, Oxford. The collection aims to shed light on the interactions between immigration, migration law, and labour law, in particular how migration status has a bearing on labour relations and the world of work. Contributors to the volume identify the many ways that migration law, as currently designed, divides the objectives of labour law, privileging employers' interests in the supply of labour over worker-protective concerns. In addition, migration law creates a particular form of status, which affects labour relations, thereby dividing the subjects of labour law. While several contributions focus on the UK, other countries examined include Australia, Ireland, Israel, Italy, Germany, Sweden, and the US. References are also made to discrete practices in Brazil, France, Greece, New Zealand, Mexico, Poland, and South Africa. The collection identifies how migration law as currently configured jeopardizessome of the values and institutions of labour law.}, language = {en} } @techreport{Wriedt, type = {Working Paper}, author = {Wriedt, Vera}, title = {Expanding Exceptions? AA and others v North Macedonia, Systematic Pushbacks and the Fiction of Legal Pathways}, series = {Strasbourg Observers}, journal = {Strasbourg Observers}, abstract = {The closure of the Greek-Macedonian border on 8 March 2016 entailed systematic pushbacks. The largest operation occurred on 14-15 March 2016, when more than 1500 refugees were summarily returned from North Macedonia to Greece. The complaint of AA and others v North Macedonia addressed this large-scale pushback operation. However, instead of condemning these pushbacks, the European Court of Human Rights expanded the exception from the prohibition of collective expulsions created in the case of ND and NT v Spain and found the applicants culpable of circumventing legal pathways, ignoring that these were clearly not available in practice. Thereby, the Court reproduces exclusionary reasoning that has shaped the European Convention on Human Rights since its inception.}, language = {en} } @article{CalıDemirGuersel, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Demir-G{\"u}rsel, Esra}, title = {Continuity and change in human rights appropriation: The case of Turkey}, series = {International Journal of Constitutional Law}, journal = {International Journal of Constitutional Law}, doi = {10.1093/icon/moad024}, pages = {1 -- 19}, abstract = {This article analyzes the political and legal dynamics of continuity and change in the appropriation of human rights in Turkey against the backdrop of growing authoritarian practices. Human rights appropriation in Turkey has traditionally focused on the interpretation of human rights favoring national security and secular sensibilities to determine who has human rights and to what extent. The recent decade is a case of continuity and change. While the secularist frame has been replaced by a religious frame defining authentic human rights holders as members of the "pious" Turkish Muslim family and society, the national security frame has remained a continuous source of human rights appropriation. The article first offers an account of the dynamics of old forms of human rights appropriation in Turkey. It then analyzes the new actors, strategies, and transnational dimensions of new forms of human rights (mis)appropriation.}, language = {en} } @techreport{Lambert, type = {Working Paper}, author = {Lambert, Laura}, title = {Refugee Recognition Regime Country Profile: Niger (in French)}, edition = {No. 08}, doi = {10.48462/opus4-5250}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-52508}, pages = {94}, language = {fr} } @techreport{Lambert, type = {Working Paper}, author = {Lambert, Laura}, title = {Refugee Recognition Regime Country Profile: Niger}, edition = {No. 08}, doi = {10.48462/opus4-5249}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-52495}, pages = {81}, abstract = {This report explores the refugee recognition regime in Niger. Quantitatively, Niger is the most important transit and refugee host country in West Africa. Niger is also at the forefront of debates on migration management in the region, as it is presented by International Organisations and states of the Global North as an alternative destination to the limited refugee protection in Libya and North Africa. Against the background of a relative dearth of literature on refugee recognition regimes (RRR) in (West) Africa and generally the Global South, this study draws on ethnographic field research and desk research to analyse the norms, institutions, modes of recognition, quality of recognition processes and of protection in Niger. This report's research was completed in July 2021 and except a few data points, does not include any developments thereafter.}, language = {en} } @techreport{SherwoodCostelloMcDonnell, type = {Working Paper}, author = {Sherwood, Angela and Costello, Cathryn and McDonnell, Emilie}, title = {The Displacement Regime Complex: Reform for Protection}, edition = {No. 09}, doi = {10.48462/opus4-5320}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-53209}, pages = {32}, abstract = {This working paper aims to examine the 'displacement regime complex', displacement referring to both internally and externally displaced persons, taking into account the competing roles of UNHCR and IOM in both spheres of activity. The title of the paper 'Reform for protection', aims to outline institutional reforms that aim to increase protection for the displaced, informed by binding universal human rights standards, and institutional principles relating to accountability and participation of most affected populations.}, language = {en} } @techreport{DolanTshimba, type = {Working Paper}, author = {Dolan, Chris and Tshimba, David N.}, title = {Refugee Recognition Regime Country Profile: Uganda}, edition = {No. 10}, doi = {10.48462/opus4-5390}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-53909}, pages = {52}, abstract = {Refugee influxes into Uganda are triggered by armed conflict, insurgencies, political persecution, and severe economic hardships. This study of refugee recognition analyses the norms, institutions, modes and quality of recognition processes, as well as quality of protection provided.}, language = {en} } @article{CalıRodley, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Rodley, Nigel S.}, title = {Kosovo Revisited: Humanitarian Intervention on the Fault Lines of International Law}, series = {Human Rights Law Review}, volume = {7}, journal = {Human Rights Law Review}, number = {2}, issn = {1744-1021}, doi = {10.1093/hrlr/ngm003}, pages = {275 -- 297}, abstract = {The asserted doctrine of unilateral humanitarian intervention has given rise to considerable debate in international law. This article revisits the use of force in Kosovo to critically appraise this debate. The arguments for and against the doctrine are schematically compared and contrasted. Their differences are methodological, but underlying factors are relevant. These may include a conflict of values (notably, sovereignty versus human rights), but certainly involve deep disciplinary problems evidenced by confusing international legal terminology and, especially, the contradictions inherent in identifying and changing rules of general/customary international law. Three factors are considered as potentially helpful in bridging these fault lines: state practice (unavoidably), the stability of the international system and accountability. The latter two, at least, sit uncomfortably with unilateralism.}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Balancing Human Rights? Methodological Problems with Weights, Scales and Proportions}, series = {Human Rights Quarterly}, volume = {29}, journal = {Human Rights Quarterly}, number = {1}, issn = {1085-794X}, doi = {10.1353/hrq.2007.0002}, pages = {251 -- 270}, abstract = {This article takes issue with the argument that human rights are not absolute and should be balanced in relation to competing communal aims. The balancing of qualified human rights is a key practice of the European Court of Human Rights and a great deal depends on a clear analysis of the ramifications of balancing for our understanding of human rights aims. The author does not seek to propose an alternative to balancing, but aims to show that it is not necessarily coherent with human rights principles or the kinds of functions international human rights institutions are thought to perform.}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Bargaining Transnationalism: The European Court of Human Rights}, series = {Finnish Yearbook of International Law}, volume = {15}, journal = {Finnish Yearbook of International Law}, pages = {111 -- 128}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Enforcement}, series = {Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: A Commentary}, booktitle = {Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: A Commentary}, editor = {Langfort, Malcolm and Porter, Bruce and Brown, Rebecca and Rossi, Julieta}, publisher = {Pretoria University Law Press}, address = {Pretoria}, pages = {391 -- 415}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {From Flexible to Variable Standards of Judicial Review: The Responsible Domestic Courts Doctrine at the European Court of Human Rights}, series = {Shifting Centres of Gravity in Human Rights Protection: Rethinking relations between the ECHR, EU and national legal orders}, booktitle = {Shifting Centres of Gravity in Human Rights Protection: Rethinking relations between the ECHR, EU and national legal orders}, editor = {Arnard{\´o}ttir, Oddn{\´y} Mj{\"o}ll and Buyse, Antoine}, publisher = {Routledge}, address = {Basingstoke}, doi = {10.4324/9781315651125}, pages = {144 -- 161}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Does the remedy jurisprudence of the European Court of Human Rights do enough for media freedom?}, series = {Journalism at Risk : Threats, Perspectives and Challenges}, booktitle = {Journalism at Risk : Threats, Perspectives and Challenges}, editor = {Andreotti, Onur}, publisher = {Council of Europe Publishing}, address = {Strasbourg}, isbn = {978-92-871-8120-6}, pages = {81 -- 104}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {The legitimacy of international interpretive authorities for human rights treaties: an indirect-instrumentalist defence}, series = {The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives}, booktitle = {The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives}, editor = {F{\o}llesdal, Andreas and Schaffer, Johan Karlsson and Ulfstein, Geir}, publisher = {Cambridge University Press}, address = {Cambridge}, isbn = {978-1-107-03460-0}, doi = {10.1017/CBO9781139540827.006}, pages = {141 -- 164}, language = {en} } @article{CalıCunningham, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Cunningham, Stewart}, title = {Judicial Self Government and the Sui Generis Case of the European Court of Human Rights}, series = {German Law Journal}, volume = {19}, journal = {German Law Journal}, number = {7}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-27434}, pages = {1978 -- 2006}, language = {en} } @article{CalıDurmuş, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Durmu{\c{s}}, Bet{\"u}l}, title = {Judicial Self-Government as Experimental Constitutional Politics: The Case of Turkey}, series = {German Law Journal}, volume = {19}, journal = {German Law Journal}, number = {7}, doi = {10.1017/S2071832200023208}, pages = {1672 -- 1706}, abstract = {This article traces the evolution of judicial self-government practices (JSG) in Turkey and argues that the frequent changes in JSG are part of a broader trajectory of experimental constitutional politics. The Council for Judges and Prosecutors has experienced sharp turns since its establishment in 1961, respectively in 1971, 1982, 2010, 2014 and 2017.During this period, Turkey experienced different forms of judicial councils ranging from co-option, hierarchical and executive controlled judicial council models to a more pluralistic model. The Justice Academy of Turkey has also not been immune from this experimentalism. The article discusses the endogenous relationship between these often short-lived experiments of JSG and their impacts on the independence, accountability, and legitimacy of the judiciary and public confidence in the judiciary. The article then turns to the repercussions of JSG on separation of powers and democratic principle. It focuses on the implications of the ambiguous position of the Council in the state structure for the separation of powers, and the revived debate on democratic legitimacy of JSG after the 2017 constitutional amendments.}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {On Einsteinian waves, international law and national hats: Afterword to the Foreword by Doreen Lustig and J. H. H. Weiler'}, series = {International Journal of Constitutional Law}, volume = {17}, journal = {International Journal of Constitutional Law}, number = {1}, doi = {https://doi.org/10.1093/icon/moz022}, pages = {24 -- 30}, language = {en} } @incollection{CalıMcGregorElibol, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and McGregor, Lorna and Elibol, Zeynep}, title = {The International Court of Justice as an Integrator, Developer and Globaliser of International Human Rights Law}, series = {Human Rights in Other International Courts}, booktitle = {Human Rights in Other International Courts}, editor = {Scheinin, Martin}, publisher = {Cambridge University Press}, address = {Cambridge}, doi = {10.1017/9781108584623.003}, publisher = {Hertie School}, pages = {62 -- 86}, language = {en} } @incollection{Calı2020, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {The case for the right to meaningful access to internet as a Human Right in International Law}, series = {The Cambridge Handbook on New Human Rights}, booktitle = {The Cambridge Handbook on New Human Rights}, publisher = {Cambridge University Press}, address = {Cambridge}, isbn = {9781108676106}, publisher = {Hertie School}, pages = {276 -- 284}, year = {2020}, language = {en} } @misc{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Russia and the European Court of Human Rights: The Strasbourg Effect}, series = {International Journal of Constitutional Law}, volume = {17}, journal = {International Journal of Constitutional Law}, number = {1}, doi = {10.1093/icon/moz014}, pages = {361 -- 365}, abstract = {Russia and the European Court of Human Rights: The Strasbourg Effect, edited by M{\"a}lksoo and Benedek, focuses on a pressing issue in the field of human rights law: the impact of the case law of the European Court of Human Rights in decaying democratic contexts and authoritarian settings and the reception of the Convention and its standards by domestic judges in such environments. The book is timely due to two recent developments that set Russia aside from the other forty-six member states of the Council of Europe. First, there is a significant political standoff between the Russian Federation and the Council of Europe, evidenced in the suspension of voting rights for Russian national parliamentarians sitting in the Parliamentary Assembly of the Council of Europe in 2014 in response to Russia's annexation of Crimea.1 Since then Russia has stopped paying its contribution to the ordinary budget, bringing the Council of Europe into serious financial difficulty. Second, in December 2015, an amendment to the Federal Constitutional Law of the Russian Federation granted the Russian Constitutional Court the power to declare opinions from international human rights bodies "impossible to execute."2 In this way, Russia has become the first Council of Europe member state to have a domestic constitutional process designed to resist the implementation of individual judgments of the European Court of Human Rights. The book is comprised of twelve chapters and an introduction. Part I one of the book examines the relationship between Russia and the European Court of Human Rights and the Council of Europe over time. Part II addresses the legislative and judicial reception of the Convention standards in Russia. Part III has three case studies exploring Russia's response to judgments concerning gross human rights violation cases in Chechnya, right-to-property cases, and cases concerning the rights of LGBTI individuals. The final part of the book focusses on identifying the range of factors that explain the impact and reception of the European Court of Human Rights in Russia, although every chapter in the book also does this, offering its own account of and explanation for impact and reception. Overall, the book argues that the effects of the European Court of Human Rights in Russia have been selective and limited, but that the impact and reception have variations not only across issue areas but also across time. Roter, exploring the periodization of the variation of the Strasbourg Effect in Russia, identifies three key phases (Chapter 1). The first period between the accession of Russia to the European Convention on Human Rights until the mid-2000s is identified as comparatively good times where both domestic and international actors had meaningful hopes that the influence of the Strasbourg Court would bring about domestic reforms in Russia. The period from the mid-2000s until the annexation of Crimea by Russia in 2014 is characterized as a period in which there was a massive influx of cases against Russia and slow compliance but continuing participation in the Council of Europe machinery, like any other state. From 2014 onward a new period began, which is characterized as one of open resistance to Strasbourg in Russia, albeit with a degree of {\`a} la carte compliance, in particular with respect to the payment of compensation to victims of human rights violations, which have continued in this period. According to this periodization, Strasbourg's Russia problem really started in 2014, a time when Russia could no longer be understood as just another country with a large number of pending cases and a compliance problem. The issue-specific investigations of the Strasbourg Effect further support the claim that the reception and impact of the European Court of Human Rights vary across groups of cases. While the Chechen cases (Leach, Chapter 8), which identify gross human rights violations by security forces, have been some of the hardest cases in terms of lack of implementation of the judgments, the Russian judiciary and legislature have been more responsive, using Strasbourg decisions finding a violation of the right to property (Starzhenetskiy, Chapter 9) to reform parts of the property regime of the Russian Federation. With respect to the protection of LGBT rights (Bartenev, Chapter 10), the book underlines that these cases did not face open resistance from apex courts early on, but that that the LGBT cases in the current post-2014 context do have the potential to deepen the open resistance of Russian authorities to the European Court of Human Rights}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Specialized Rules of Treaty Interpretation: Human Rights}, series = {The Oxford Guide To Treaties}, booktitle = {The Oxford Guide To Treaties}, editor = {Hollis, Duncan B.}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780199601813}, publisher = {Hertie School}, pages = {525 -- 550}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Explaining Variation in the Intrusiveness of Regional Human Rights Remedies in Domestic Orders}, series = {International Journal of Constitutional Law}, volume = {16}, journal = {International Journal of Constitutional Law}, number = {1}, doi = {10.1093/icon/moy009}, pages = {214 -- 234}, abstract = {Regional human rights systems vary with respect to the intrusiveness of human rights remedies into the domestic orders of states from a spectrum of more intrusive remedies in the Americas to less intrusive remedies in Europe. This article identifies three potential explanations as to why the intrusiveness of human rights remedies varies across the three regional systems: (i) the legal design explanation, (ii) the case-history explanation, and (iii) the legal culture explanation. The article argues that of these competing explanations, the legal culture explanation fares better than the other contenders in accounting for variation in the intrusiveness of remedies over time. The other two explanations, however, are also of use. The legal design explanation accounts for why the courts in the Americas and Africa are more amenable to intrusive remedies. The case-history explanation is able to explain sudden bursts of intrusive remedies in all three regions.}, language = {en} } @article{CalıMadsenViljoen, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Madsen, Mikael Rask and Viljoen, Frans}, title = {Comparative Regional Human Rights Regimes: Defining a Research Agenda}, series = {International Journal of Constitutional Law}, volume = {16}, journal = {International Journal of Constitutional Law}, number = {1}, doi = {10.1093/icon/moy008}, pages = {128 -- 135}, abstract = {This article introduces the Comparative Regional Human Rights Regimes Symposium which marks a first attempt at a regime-level comparative analysis of the three main regional human rights courts and commissions. It does so with the aim of laying out why regime level comparative analysis matters and why access, interpretation and remedies offer core markers of a comparative research agenda. The article identifies three distinct contributions that regional comparison makes to comparative international human rights law. First, it allows us to go beyond the binary form that is prevalent in comparative human rights law scholarship that most often juxtaposes (selected elements of) the European and Inter-American human rights regimes, and less frequently the African-Inter-American, or African-European human rights regimes. Second, a comparative research agenda goes beyond existing scholarship on regional comparison that has been largely descriptive in character. Taking a holistic approach to regional human rights regimes, comparisons can be made over time and dynamics of divergences and convergences can be identified and explained. Third, a comparative research agenda allows us to locate regional human rights regimes as part of a more general global evolution of law and institutions. That is, through comparison, we are better placed to evaluate how regional human rights courts and commissions are inscribed in a broader development of regional and international law since the aftermath of World War II.}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {All You Need Is Time? Discrepancies between the European Court of Human Rights Case Law and Liberal Normative Theory on Long-Term Migrants}, series = {Israel Law Review}, volume = {50}, journal = {Israel Law Review}, number = {3}, doi = {10.1017/S0021223717000152}, pages = {447 -- 497}, abstract = {This article, departing from Gila Stopler's 'Rights in Immigration: The Veil as a Test Case', published in the Israeli Law Review in 2010, reviews how the time spent by a long-term migrant, irrespective of legal status, normatively figures in liberal theories of migration and in the case law of the European Court of Human Rights (ECtHR). The article detects that in contemporary liberal theories, assigning an independent normative value to time spent by the migrant in the receiving country is a key move in balancing the competing interests of migrants and of the migrant-receiving country, where the right of the country to regulate migration is taken as given: the longer a migrant is present in a country, the stronger her interests become in receiving citizenship status or treatment akin to citizens. The article then surveys the case law of the ECtHR relating to long-term migrants. It finds that time is often one of multiple normative considerations in the balancing exercise, in conjunction with whether a migrant has achieved social integration in the migrant-receiving country and whether the right of the receiving community to regulate migration for reasons of affording citizenship, national security or distributive justice is paramount. The article argues that the lack of an independent normative weight afforded to time in the case law of the ECtHR is not merely a tension between the translation of liberal normative theory to legal policy. It also shows a deeper tension in liberal theories of migration between national liberalism and cosmopolitan liberalism.}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {International Human Rights Law: One Purpose or Many? Reflections on Macklem's The Sovereignty of Human Rights}, series = {Jerusalem Review of Legal Studies}, volume = {15}, journal = {Jerusalem Review of Legal Studies}, number = {1}, doi = {10.1093/jrls/jlx010}, pages = {77 -- 88}, abstract = {International human rights law (IHRL) puzzles international lawyers and moral philosophers alike. On the one hand, IHRL does not rest on logic familiar to international lawyers, such as reciprocal obligations between states. It is a body of law created by states, but what it regulates is relationships between states and individuals.1 On the other hand, IHRL has strong affinities with moral philosophy. It claims to protect the fundamental interests of individuals in the form of claim rights against states. Yet, IHRL contains a much longer list of rights than most moral philosophers are willing to justify. It further contains doctrines that are alien to moral philosophical accounts of rights, such as derogable rights and jurisdiction-based responsibility for duty holders. That IHRL shares much in common both with international law and with moral philosophy yet, in some ways, remains distinct from both of them, has been subject to both philosophical and legal theoretical inquiry through the past decade.4 Significant questions have been raised concerning the normative justifiability of IHRL both from philosophical and legal perspectives. Should we interpret IHRL in the light of a moral philosophy of human rights? What explains the discrepancies between moral philosophical accounts of human rights and the practice of IHRL? What is IHRL for? Does the practice of IHRL allow us to make sense of the purpose of IHRL distinct from moral philosophical accounts of IHRL? The Sovereignty of Human Rights5 is an important contribution to these questions, and in particular, to the purposive analysis of IHRL as a legal project distinct from the moral enquiries into human rights qua human rights. What is more, it offers a purposive analysis of a much wider range of IHRL than commonly found in the existing literature. It proposes that a legal account of the purpose of IHRL must go beyond the civil, political, economic, social, and cultural rights of individuals and include minority rights, rights of indigenous peoples, the right to self-determination, the right to development and freedom from poverty. The Sovereignty of Human Rights brings together the latter under an integrated account of the purpose of IHRL by way of assigning a unified purpose to IHRL as a whole: monitoring and seeking to alleviate not only the exercise, but also the distributive effects of the allocation of sovereignty in the international legal order. This article, part of the Symposium on Macklem's The Sovereignty of Human Rights, has two aims. First, it seeks to reflect on the central argument of The Sovereignty of Human Rights that the legal purpose of IHRL is to monitor the exercise and distribution of sovereignty in the international legal order with a specific focus on the normative methodological underpinnings of this argument. Second, it turns to the implications of this central argument for understanding the purpose of legal minority rights as developed in Chapter 5, holding that minority rights foremost aim to monitor the distribution of the allocation of sovereignty in the international legal order.}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {The disciplinary account of the authority of International Law: does it stand firm against its external critics?}, series = {European Society of International Law, ESIL Reflections}, volume = {5}, journal = {European Society of International Law, ESIL Reflections}, number = {5}, abstract = {The form of authority that international law enjoys over states, and for what reasons, has long been an important topic of debate in international law and in the neighboring disciplines of constitutional law, legal and political philosophy and political science. Although the debate is old, it continues to be a heterogeneous one in which disciplinary approaches to the very definition of authority play a central role. Notwithstanding disagreements on the definition of authority from various disciplinary perspectives, there are two points of agreement in this debate.}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Authority}, series = {Concepts for International Law. Contributions to Disciplinary Thought}, booktitle = {Concepts for International Law. Contributions to Disciplinary Thought}, editor = {d'Aspremont, Jean and Singh, Sahib}, publisher = {Elgar Publishing}, address = {Cheltenham}, isbn = {978 1 78347 467 7}, publisher = {Hertie School}, pages = {39 -- 53}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Influence of the International Covenant on Civil and Political Rights in Middle East}, series = {The Human Rights Covenants at 50: their past, present, and future}, booktitle = {The Human Rights Covenants at 50: their past, present, and future}, editor = {Moeckli, Daniel and Keller, Helen and Heri, Corina}, publisher = {Oxford University Press}, address = {Oxford}, publisher = {Hertie School}, pages = {124 -- 149}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Regional Protection}, series = {International Human Rights Law}, booktitle = {International Human Rights Law}, editor = {Moeckli, Daniel and Shah, Sangeeta and Sivakumaran, Sandesh}, publisher = {Oxford University Press}, address = {Oxford}, publisher = {Hertie School}, pages = {411 -- 424}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {The limits of international justice at the European Court of Human Rights: between legal cosmopolitanism and a society of states}, series = {Paths to international justice: social and legal perspectives}, booktitle = {Paths to international justice: social and legal perspectives}, editor = {Dembour, Marie-B{\´e}n{\´e}dicte and Kelly, Tobias}, publisher = {Cambridge University Press}, address = {Cambridge}, publisher = {Hertie School}, pages = {111 -- 133}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Human Rights discourse and domestic Human Rights NGOs}, series = {Human Rights in Turkey}, booktitle = {Human Rights in Turkey}, editor = {Arat, Zehra F. Kabasakal}, publisher = {University of Pennsylvania Press}, address = {Philadelphia}, publisher = {Hertie School}, pages = {217 -- 232}, abstract = {Turkish domestic human rights organizations (HROs) have played a major role in developing a human rights discourse by using human rights as an interpretive framework to criticize, resist, and reform domestic political, social, and economic arrangements. This chapter contends that since 1986, domestic Turkish HROs have been major actors in the development of a domestically grown human rights perspective in Turkish politics. They have introduced framing issues as human rights issues and paved the way in fostering a culture of minimum guarantees and protections that any individual ought to enjoy within the Turkish political community.}, language = {en} } @incollection{CalıErgun, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Ergun, Ay{\c{c}}a}, title = {Global Governance and Domestic Politics: Fragmented Visions}, series = {Criticising Global Governance}, booktitle = {Criticising Global Governance}, editor = {Lederer, Markus and Muller, Philipp S.}, publisher = {Palgrave-Macmillan}, publisher = {Hertie School}, pages = {161 -- 176}, language = {en} } @techreport{CalıMontaya, type = {Working Paper}, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Montaya, Mariana}, title = {The March of Universality? Religion-based Reservations to the core UN Treaties and what they tell us about human rights and universality in the 21st century}, series = {Policy Report}, volume = {May 2017}, journal = {Policy Report}, publisher = {Universal Rights Group (URG)}, address = {Versoix, Switzerland}, pages = {50 pages}, abstract = {The United Nations human rights treaties fulfil a central function in the global human rights promotion and protection system. By voluntarily acceding to those treaties, States bind themselves into a comprehensive framework of human rights obligations. Then, working in dialogue and cooperation with the Treaty Bodies set up to monitor and promote compliance with the treaties, States take steps over time to bring national laws, processes and practices into line with universal norms. However, when acceding to international human rights treaties,States often enter 'reservations' that limit, either generally or partially, the scope of application of the treaty in domestic law. So, for example, a State may make a general reservation to only accept obligations under a treaty insofar as those obligations are compatible with the tenets of a given religion; or may make a partial reservation to limit the application of a certain article of a convention. These reservations have a significant negative impact on the on-the-ground enjoyment of human rights. If a State does not consider itself fully bound by a treaty to which it is Party, or does not consider itself bound by a certain article(s) of that treaty,then it is unlikely to take the necessary steps, at domestic level,to fully respect, protect or promote the right(s) in question. Between 2014-2016, the Universal Rights Group (URG) led a major international project to map all reservations to the core human rights conventions, and to better understand the extent and nature of these key checks on the universality of human rights. As part of the project, the URG was particularly interested in identifying and analysing reservations that are - or appear to be - motivated by doubts, on the part of the reserving State,as to the compatibility of the treaty in question with certain religious or belief systems. URG's analysis found that questions over compatibility of treaties or treaty provisions with religious belief, doctrine or dogma,are by far the most frequent reason, justification or basis for States' decisions to enter reservations to the UN human rights treaties. Indeed, religion-based or religion-influenced reservations account for over 40\% of all reservations to the core international human rights treaties.}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {International Judicial Review}, series = {Handbook on Global Constitutionalism}, booktitle = {Handbook on Global Constitutionalism}, editor = {Lang Jr., Anthony and Wiener, Antje}, publisher = {Edward Elgar Publishing}, address = {Cheltanham, UK; Northampton, USA}, publisher = {Hertie School}, pages = {291 -- 304}, language = {en} } @incollection{CalıKoch, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Koch, Anne}, title = {Explaining compliance: lessons learnt from civil and political rights}, series = {Social rights judgments and the politics of compliance}, booktitle = {Social rights judgments and the politics of compliance}, editor = {Langford, Malcolm and Rodr{\´i}guez-Garavito, C{\´e}sar and Rossi, Julieta}, publisher = {Cambridge University Press}, address = {Cambridge, New York}, publisher = {Hertie School}, pages = {43 -- 74}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {A new doctrine on the block? The European Court of Human Rights and the responsible courts doctrine}, series = {International Law and... Select Proceedings of the European Society of International Law}, volume = {5}, booktitle = {International Law and... Select Proceedings of the European Society of International Law}, editor = {Reinisch, August and Footer, Mary E. and Binder, Christina}, publisher = {Hart Publishing}, publisher = {Hertie School}, pages = {67 -- 78}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {The Legitimacy of International interpretive authorities for Human Rights treaties: An indirect-instrumentalist defence}, series = {The Legitimacy of International Human Rights Regimes}, booktitle = {The Legitimacy of International Human Rights Regimes}, editor = {F{\o}llesdal, Andreas and Schaffer, Johan Karlsson and Ulfstein, Geir}, publisher = {Cambridge University Press}, address = {Cambridge, New York}, isbn = {978-1-107-03460-0}, doi = {10.1017/CBO9781139540827.006}, publisher = {Hertie School}, pages = {141 -- 164}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Specialized Rules for Treaty Interpretation: Human Rights}, series = {The Oxford Guide to Treaties}, booktitle = {The Oxford Guide to Treaties}, editor = {Hollis, Duncan B.}, publisher = {Oxford University Press}, address = {Oxford}, publisher = {Hertie School}, pages = {525 -- 550}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {From Bangladesh to responsibility to protect: the legality and implementation criteria for humanitarian intervention}, series = {The Delivery of Human Rights}, booktitle = {The Delivery of Human Rights}, editor = {Gilbert, Geoff and Hampson, Francoise and Sandoval, Clara}, publisher = {Routledge}, address = {New York}, publisher = {Hertie School}, pages = {228 -- 244}, language = {en} } @misc{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Theories of International Relations in International Law}, series = {International Law for International Relations}, journal = {International Law for International Relations}, publisher = {Oxford University Press}, address = {Oxford}, pages = {464}, abstract = {The breadth of international law and institutions in contemporary global politics means it is no longer possible to make sense of international politics without understanding international law. International Law for International Relations provides students with comprehensive coverage that maps out the different ways to approach the study of international law. It explains the institutions and main sources of international law-making and identifies the key topics of international law. This is the ideal text for students of international relations who have not previously studied law and post-graduate students of any background tackling international law for the first time. The complexities of international law are presented in an accessible, animated way allowing students to appreciate the significance of international law in international relations.}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {International Human Rights Law}, series = {International Law for International Relations}, booktitle = {International Law for International Relations}, editor = {{\c{C}}al{\i}, Ba{\c{s}}ak}, publisher = {Oxford University Press}, address = {Oxford}, publisher = {Hertie School}, pages = {281 -- 305}, language = {en} } @incollection{CalıGriffin, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Griffin, Elizabeth}, title = {International Humanitarian Law}, series = {International Law for International Relations}, booktitle = {International Law for International Relations}, editor = {{\c{C}}al{\i}, Ba{\c{s}}ak}, publisher = {Oxford University Press}, address = {Oxford}, publisher = {Hertie School}, pages = {234 -- 257}, language = {de} } @incollection{CalıRodley, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Rodley, Nigel}, title = {Use of force in international law}, series = {International law for international relations}, booktitle = {International law for international relations}, editor = {{\c{C}}al{\i}, Ba{\c{s}}ak}, publisher = {Oxford University Press}, address = {Oxford}, publisher = {Hertie School}, pages = {213 -- 233}, language = {en} } @article{CalıGaland, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Galand, Alexandre Skander}, title = {Towards a common institutional trajectory? Individual complaints before UN treaty bodies during their Booming years}, series = {The International Journal of Human Rights}, journal = {The International Journal of Human Rights}, issn = {1744-053X}, doi = {10.1080/13642987.2019.1709447}, pages = {1 -- 24}, abstract = {The expanding number of UN treaty bodies with competence to rule on individual complaints as well as the increasing amount of complaints lodged before these bodies trigger the question whether they are capable of acting as a unified institution when dealing with individual complaints or whether they remain as a fragmented institutional site. In this article, we comparatively analyse the case law of all treaty bodies between 2013 and 2016 with the aim of assessing whether UN treaty bodies are moving towards a common institutional trajectory. We find that despite textual differences, the treaty bodies' case law displays both early signs of a common institutional trajectory and risks of institutional fragmentation. The most significant common institutional trends are access friendliness; self-referential citations, a preference for implicit harmonisation; and case by case activism with respect to individual remedies. Yet, we also identify lack of systematic and explicit cross treaty-fertilization and diverging approaches to specifying general remedies as risks that may undermine the formation of a common institutional trajectory. We argue that the early signs of informal collective institutionalisation may be capable of fostering a common institutional identity in the years to come, if risks of fragmentation are acknowledge and mitigated.}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Political Limits of International Human Rights}, series = {The Limits of Human Rights}, booktitle = {The Limits of Human Rights}, editor = {Fassbender, Bardo and Traisbach, Knut}, publisher = {Oxford University Press}, isbn = {9780198824763}, publisher = {Hertie School}, pages = {137 -- 147}, abstract = {What are the limits of human rights, and what do these limits mean? This volume engages critically and constructively with this question to provide a distinct contribution to the contemporary discussion on human rights. Fassbender and Traisbach, along with a group of leading experts in the field, examine the issue from multiple disciplinary perspectives, analysing the limits of our current discourse of human rights. It does so in an original way, and without attempting to deconstruct, or deny, human rights. Each contribution is supplemented by an engaging comment which furthers this important discussion. This combination of perspectives paves the way for further thought for scholars, practitioners, students, and the wider public. Ultimately, this volume provides an exceptionally rich spectrum of viewpoints and arguments across disciplines to offer fresh insights into human rights and its limitations.}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Coping with Crisis: Whither the Variable Geometry in the Jurisprudence of the European Court of Human Rights}, series = {Wisconsin International Law Journal}, volume = {35}, journal = {Wisconsin International Law Journal}, number = {2}, pages = {237 -- 276}, abstract = {This article offers a new take on the diagnosis of the crisis of the European human rights system by focusing on the diversification of the attitudes towards the European Court of Human Rights by national compliance audiences, namely domestic executives, parliaments, and judiciaries. This diagnosis holds that national compliance audiences of the European Court of Human Rights can no longer be characterized as lending overall support to the human rights acquis of Europe, that centers around the European Court of Human Rights as the ultimate authoritative interpreter of the Convention. Instead, alongside states that continue to lend overall support to the Court's authority over the interpretation of the Convention, two new attitudes have developed towards the Convention across the Council of Europe. First, there are now national compliance audiences that demand co-sharing of the interpretation task with the European Court of Human Rights. Second, there are national compliance audiences that flaunt well-established Convention standards, not merely by error, or lack of knowledge of adequate application, but with suspect grounds of intentionality and lack of respect for the overall Convention acquis. Following this diagnosis, I argue that instead of holding on to a business as usual attitude, the Court has also developed coping strategies in order to handle this fragmentation by investing in a human rights jurisprudence of a variable geometry, recognizing differentiation in the individual circumstances of states as a basis for human rights review.}, language = {en} } @techreport{Calı, type = {Working Paper}, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {The European Court of Human Rights and Accountability for Neoliberal State Conduct: Never the Twain Shall Meet?}, series = {Legal Trajectories of Neoliberalism: Critical Inquiries on Law in Europe (EUI Working Paper RSCAS 2019/43)}, journal = {Legal Trajectories of Neoliberalism: Critical Inquiries on Law in Europe (EUI Working Paper RSCAS 2019/43)}, editor = {Salomon, Margot E. and de Witte, Bruno}, issn = {1028-3625}, pages = {21 -- 26}, abstract = {Responses to the recent (and ongoing) debt and austerity crises in Europe reveal multiple techniques through which the rule and role of law operate in these times of neoliberal capitalism. From international law, to human rights law, to European Union law, and constitutional law the deployment and orientation of law in the past few years point up ways in which law co-constitutes neoliberal values and structures, legitimating and hardening those values and foreclosing alternatives. Framing market interests, capital accumulation and profit as the common interest, advancing conditions for competition, favouring the private over the public and over the commons, and situating social justice as derivative of those goals are just some of the neoliberal values that have been reflected through the instrumentalism of law. The contributors to this collective working paper offer short 'think pieces' exploring the legal trajectory of neoliberalism in particular fields of law. Some of them take a general perspective on the evolving role of law, whereas others focus on select but representative examples. The authors may not all concur in their assessment of the role of law, but they all engage with the role of law in the recent evolution of European politics and society.}, language = {en} } @incollection{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {International Legal Human Rights and Moral Human Rights: Friends or Foes?}, series = {Human Rights in the 21st Century}, booktitle = {Human Rights in the 21st Century}, publisher = {Eleven International Publishing}, address = {Den Haag}, isbn = {978-94-6236-993-1}, publisher = {Hertie School}, pages = {13 -- 24}, language = {en} } @article{CalıCostelloCunningham, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Costello, Cathryn and Cunningham, Stewart}, title = {Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies}, series = {German Law Journal}, journal = {German Law Journal}, number = {21}, issn = {2071-8322}, doi = {doi:10.1017/glj.2020.28}, pages = {355 -- 384}, abstract = {This Article comparatively analyses how the prohibition of refoulement is interpreted by United Nations Treaty Bodies (UNTBs) in their individual decision-making, where we suggest they act as "soft courts." It asks whether UNTBs break ranks with or follow the interpretations of non-refoulement of the European Court of Human Rights. This investigation is warranted because non-refoulement is the single most salient issue that has attracted individual views from UNTBs since 1990. Moreover, our European focus is warranted as nearly half of the cases concern states that are also parties to the European Convention on Human Rights. Based on a multi-dimensional analysis of non-refoulement across an original dataset of over 500 UNTB non-refoulement cases, decided between 1990-2020, as well as pertinent UNTB General Comments, the Article finds that whilst UNTBs, at times, do adopt a more progressive position than their "harder" regional counterpart, there are also instances where they closely follow the interpretations of the European Court of Human Rights and, on occasion, adopt a more restrictive position. This analysis complicates the view that soft courts are likely to be more progressive interpreters than hard courts. It further shows that variations in the interpretation of non-refoulement in a crowded field of international interpreters present risks for evasion of accountability, whereby domestic authorities in Europe may favor the more convenient interpretation, particularly in environments hostile to non-refoulement.}, language = {en} } @article{Turkut, author = {Turkut, Emre}, title = {Emergency Powers, Constitutional (Self-)Restraint and Judicial Politics: the Turkish Constitutional Court During the COVID-19 Pandemic}, series = {Jus Cogens}, volume = {4}, journal = {Jus Cogens}, issn = {2524-3977}, doi = {10.1007/s42439-022-00064-7}, pages = {263 -- 284}, abstract = {This paper investigates the Turkish Constitutional Court (TCC)'s treatment of legal challenges brought against Turkey's legal responses to the COVID-19 pandemic. Drawing on a detailed examination of the TCC's institutional features, political origins and jurisprudential trajectory, and taking three politically salient judgments of the TCC concerning Turkey's executive-dominated pandemic control as the point of departure, the paper argues that the TCC chose to exercise judicial restraint both in protecting fundamental rights and reviewing pandemic policies of the executive. It also argues that the TCC's judicial restraint during the pandemic was simply the re-manifestation of its 'play-it-safe' strategy — a judicial stance the TCC willingly adopted in the aftermath of the 2016 attempted coup despite possessing strong constitutional powers of judicial review, and its established attitude of assertive scrutiny in the past. From a more theoretical perspective, the analysis also explores how the passive role to which the TCC is consigned in an increasingly authoritarian regime since the 2016 failed coup relates to the global phenomenon of judicialization of authoritarian politics.}, language = {en} } @article{WelfensBonjour, author = {Welfens, Natalie and Bonjour, Saskia}, title = {Seeking Legitimacy Through Knowledge Production: The Politics of Monitoring and Evaluation of the EU Trust Fund for Africa}, series = {JCMS: Journal of Common Market Studies}, volume = {61}, journal = {JCMS: Journal of Common Market Studies}, number = {4}, publisher = {Wiley}, issn = {0021-9886}, doi = {10.1111/jcms.13434}, pages = {951 -- 969}, abstract = {Monitoring and evaluation (M\&E) is a form of expert knowledge that is central to migration governance. This article analyses M\&E of the EU Trust Fund for Africa (EUTF), created in 2015 to 'fight the root causes of migration'. Combining institutionalist accounts with practice theory, we examine whether M\&E knowledge production served the instrumental purpose of assessing policy impact or mainly legitimated particular policy actors and positions. We find that M\&E did not produce evidence on whether the EUTF met its objectives. However, in the context of the EU's multiple crises, M\&E knowledge production served to seek legitimacy not only for the EUTF, but also for the further fusion of development and migration policies, and for the EU as a competent and transparent actor. Our analysis highlights that knowledge use and knowledge production are connected, and that M\&E knowledge politics allow for the legitimation of both actors and policies.}, language = {en} } @incollection{Welfens, author = {Welfens, Natalie}, title = {Resettlement}, series = {Flucht- und Fl{\"u}chtlingsforschung: Handbuch f{\"u}r Wissenschaft und Studium}, booktitle = {Flucht- und Fl{\"u}chtlingsforschung: Handbuch f{\"u}r Wissenschaft und Studium}, editor = {Scharrer, Tabea and Glorius, Birgit and Kleist, J. Olaf and Berlinghoff, Marcel}, publisher = {Nomos Verlagsgesellschaft mbH \& Co. KG}, isbn = {9783748921905}, doi = {10.5771/9783748921905}, publisher = {Hertie School}, pages = {489 -- 496}, language = {de} } @incollection{SherwoodLemayCostello, author = {Sherwood, Angela and Lemay, Isabelle and Costello, Cathryn}, title = {IOM's Immigration Detention Practices and Policies: Human Rights, Positive Obligations and Humanitarian Duties}, series = {IOM Unbound?: Obligations and Accountability of the International Organization for Migration in an Era of Expansion}, booktitle = {IOM Unbound?: Obligations and Accountability of the International Organization for Migration in an Era of Expansion}, editor = {Bradley, Megan and Costello, Cathryn and Sherwood, Angela}, publisher = {Cambridge University Press}, isbn = {9781009184175}, doi = {10.1017/9781009184175.016}, publisher = {Hertie School}, pages = {360 -- 396}, abstract = {This chapter analyses IOM's practices and policies on immigration detention from the 1990s to date, spanning a period of significant change in its approaches to detention. The chapter first distills pertinent international human rights law (IHRL) on migration-related detention, and then examines IOM's normative statements concerning detention. It shows that while IOM generally emphasises international legal standards, it also tends to stress states' 'prerogative' to detain, frame alternatives to detention (ATDs) as a desirable option rather than a legal obligation, and weave an operational role for itself, notably through assisted voluntary returns (AVRs). The chapter then interrogates IOM's involvement in detention through four case studies. These reveal not only IOM's changing role regarding detention, but its enduring part in a global system whereby powerful states and regions seek to contain protection seekers 'elsewhere.' The chapter concludes that, without constitutional and institutional change to ensure it meets its positive human rights obligations, and deeper critical reflection on its humanitarian duties, IOM's practice risks expanding and legitimating detention.}, language = {en} } @incollection{ZieglerVolou, author = {Ziegler, Katja S. and Volou, Aristi}, title = {Human rights and general principles: beyond the EU Charter of Fundamental Rights}, series = {Research Handbook on General Principles in EU Law}, booktitle = {Research Handbook on General Principles in EU Law}, editor = {Ziegler, Katja S. and Neuvonen, P{\"a}ivi J. and Moreno-Lax, Violeta}, publisher = {Edward Elgar Publishing}, isbn = {9781784712389}, doi = {10.4337/9781784712389.00027}, publisher = {Hertie School}, pages = {327 -- 349}, abstract = {This chapter discusses the dialectic relationship of general principles and the evolution of human rights in the EU legal order. Human (or fundamental) rights are of specific signifcance for general principles as an area of reference in a number of ways: in regard to the methodology of defining and identifying general principles; their link to constitutional values of the EU, the relationship between different sources of human rights in the EU; the relationship between unwritten general principles and a codified source; the specific, active and multidimensional dynamics of general principles in the context of fundamental rights; the relationship of general principles in the area of fundamental rights with their codification in the EU Charter on Fundamental Rights; and their possible continued relevance for courts in adjudicating human rights in the UK in post-Brexit.}, language = {en} } @incollection{Turkut, author = {Turkut, Emre}, title = {The Turkish Post-Coup Emergency and European Responses: Shortcomings in the European System Revisited}, series = {European Yearbook on Human Rights 2022}, booktitle = {European Yearbook on Human Rights 2022}, editor = {Czech, Philip and Heschl, Lisa and Lukas, Karin and Nowak, Manfred and Oberleitner, Gerd}, publisher = {Intersentia}, isbn = {9781839703447}, doi = {10.1017/9781839703447.016}, publisher = {Hertie School}, pages = {445 -- 482}, abstract = {This contribution takes Turkey's use of the derogation mechanism in the aftermath of the failed military coup of 15 July 2016 as a springboard to critically address the operation and the fallacies of the contemporary European derogation regime. The assessment will reveal whether the European system of human rights protection has succeeded in adopting an adequate and viable approach that can counterbalance the increased leeway accorded to derogating states, and formulate safeguards to mitigate human rights abuses. The contribution concludes by providing a road map proposal for adequate oversight marked by rigorous scrutiny of derogation claims that can be described as a 'consultation and cooperation process'. This process would place the Secretary General of the Council of Europe in a more active and operationally focused position to influence state decisions, to counterbalance the increased leeway accorded to derogating states, and to formulate safeguards to mitigate human rights abuses.}, language = {en} } @article{AuzVaca, author = {Auz Vaca, Juan}, title = {La Crisis Clim{\´a}tica y sus impactos en los Derechos: una Mirada en Clave Latinoamericana}, series = {Justicia Ambiental}, journal = {Justicia Ambiental}, number = {11}, issn = {0718-736x}, pages = {41 -- 47}, language = {es} } @article{Galand, author = {Galand, Alexandre Skander}, title = {The Nature of the Rome Statute of the International Criminal Court (and its Amended Jurisdictional Scheme)}, series = {Journal of International Criminal Justice}, volume = {17}, journal = {Journal of International Criminal Justice}, number = {5}, issn = {1478-1387}, doi = {10.1093/jicj/mqz051}, pages = {933 -- 956}, abstract = {This article shows that in the 20 years following the adoption of the Rome Statute of the International Criminal Court its nature has surfed on three waves. Building upon the Court's case law on the principle of legality and the immunity of state officials from non-party states, it shows that the Statute was initially conceived to be of universal nature, transcending the interests of all states. However, following a series of pushbacks, the Court revised this case law to rightly acknowledge that its Statute is first of all a multilateral treaty regulating the conduct committed in the territory and by nationals of its states parties. Yet, this second wave maintained the potential for the Statute to be universally applicable when the Court's jurisdiction is based on ad hoc declarations of acceptance or Security Council referrals. However, the journey to amend the Statute to define the crime of aggression and new war crimes might have made the prospects for universal application dependent upon universal ratification. This article argues that this third wave certainly evinces a novel shift towards state consent, but that direct and indirect forms of consent can still premise the Court's jurisdiction over situations concerning states which have not ratified the Statute or its amendments.}, language = {en} } @book{OPUS4-5489, title = {IOM Unbound? Obligations and Accountability of the International Organization for Migration in an Era of Expansion}, editor = {Bradley, Megan and Costello, Cathryn and Sherwood, Angela}, publisher = {Cambridge University Press}, isbn = {9781009184175}, doi = {10.1017/9781009184175}, publisher = {Hertie School}, abstract = {It is an era of expansion for the International Organization for Migration (IOM), an increasingly influential actor in the global governance of migration. Bringing together leading experts in international law and international relations, this collection examines the dynamics and implications of IOM's expansion in a new way. Analyzing IOM as an international organization (IO), the book illuminates the practices, obligations and accountability of this powerful but controversial actor, advancing understanding of IOM itself and broader struggles for IO accountability. The contributions explore key, yet often under-researched, IOM activities including its role in humanitarian emergencies, internal displacement, data collection, ethical labour recruitment, and migrant detention. Offering recommendations for reforms rooted in empirical evidence and careful normative analysis, this is a vital resource for all those interested in the obligations and accountability of international organizations, and in the field of migration.}, language = {en} } @article{Wriedt, author = {Wriedt, Vera}, title = {Rezension: The Prohibition of Collective Expulsion in International Law}, series = {Kritische Justiz}, volume = {54}, journal = {Kritische Justiz}, number = {2}, publisher = {Nomos Verlag}, issn = {0023-4834}, doi = {10.5771/0023-4834-2021-2-247}, pages = {255 -- 259}, language = {de} } @article{PalmiottoGonzalez, author = {Palmiotto, Francesca and Gonz{\´a}lez, Natalia Men{\´e}ndez}, title = {Facial recognition technology, democracy and human rights}, series = {Computer Law \& Security Review}, volume = {50}, journal = {Computer Law \& Security Review}, publisher = {Elsevier}, issn = {0267-3649}, doi = {10.1016/j.clsr.2023.105857}, abstract = {On 4 July 2023, the Third Section of the European Court of Human Rights (ECtHR) delivered the first judgment on the compatibility of facial recognition technology with human rights in Glukhin v. Russia. The case concerned the use of facial recognition technology (FRT) against Mr Glukhin following his solo demonstration in the Moscow underground. The Court unanimously found a violation of Article 8 (right to respect for private life) and Article 10 (freedom of expression) of the European Convention of Human Rights (ECHR). Regarding FRT, the Court concluded that the use of highly intrusive technology is incompatible with the ideals and values of a democratic society governed by the rule of law. This case note analyses the judgment and shows its relevance in the current regulatory debate on Artificial Intelligence (AI) systems in Europe. Notwithstanding the importance of this decision, we argue that the Court has left crucial questions unanswered.}, language = {en} } @article{Gruev, author = {Gruev, Ivo}, title = {Responsive Judicial Review in Kelsenian Constitutional Courts: The Impeding Effects of Limited Standing and Formalism}, series = {Review of Central and East European Law}, volume = {48}, journal = {Review of Central and East European Law}, number = {3-4}, publisher = {Brill}, issn = {0925-9880}, doi = {10.1163/15730352-bja10085}, pages = {426 -- 444}, abstract = {This paper is concerned with the question of whether constitutional systems that have adopted the centralised, "Kelsenian", model of judicial review, which is prevalent in Eastern Europe, can engage in "responsive judicial review" (Dixon, 2023). It focuses on two features that can be associated with the constitutional courts created in this region after the end of communism, which, the paper argues, can significantly hamper their capacity to identify and counter democratic blockages. These are: (1) their limited standing rules that prioritise the access of political bodies to constitutional courts, and (2) the latter's commitment to formalism, which can prevent judges from engaging with the structural and contextual issues that are causing a democratic blockage.}, language = {en} } @article{Baranowska, author = {Baranowska, Grażyna}, title = {Protecting the Good Name of the Nation as Memory Law}, series = {European Constitutional Law Review}, volume = {19}, journal = {European Constitutional Law Review}, number = {4}, publisher = {Cambridge University Press}, issn = {1574-0196}, doi = {10.1017/S1574019623000214}, pages = {623 -- 641}, abstract = {Memory laws - Protecting the good name of the nation - de facto memory laws - Prohibiting statements about the past - Article 301 of the Turkish Criminal Code - Protecting the good name of Poland and the Polish nation - Protecting the good name of the nation as de facto memory laws - Role of organisations in implementing the laws - Rule of law - Independence of the judiciary - European Court of Human Rights - Chilling effect - European memory politics}, language = {en} } @article{Auz, author = {Auz, Juan}, title = {The Political Ecology of Climate Remedies in Latin America and the Caribbean: Comparing Compliance between National and Inter-American Litigation}, series = {Journal of Human Rights Practice}, volume = {16}, journal = {Journal of Human Rights Practice}, number = {1}, publisher = {Oxford University Press}, issn = {1757-9627}, doi = {10.1093/jhuman/huad057}, pages = {182 -- 207}, abstract = {The climate crisis will continue to affect human and natural systems across Latin America and the Caribbean (LAC). Undoubtedly, this jeopardizes entire communities' enjoyment of human rights. In that context, the Inter-American Human Rights System (IAHRS) is expected to respond, particularly since its organs have jurisdiction to order remedies over most LAC countries, provided they determine a rights violation. Despite the growing number of domestic human rights-based climate cases in the region, the organs of the IAHRS have yet to adjudicate and order remedies in a case concerning the climate crisis. Against this backdrop, this article inquires how to understand climate remedies from a political ecology perspective to capture the LAC climate litigation experience. Additionally, the article asks what the challenges of implementing such remedies may be. To answer these questions, first, it compares the remedial approaches of domestic courts in six finally decided climate-related cases with those of the Inter-American Court of Human Rights (IACtHR) in 'anti-extractivist' cases. Second, it applies a political ecology lens to understand the elements that might hinder the implementation of the identified remedies. The article argues that the socioeconomic cost for States largely determines remedial compliance in domestic climate litigation and the IACtHR's anti-extractivist litigation. Ultimately, the aim is to anticipate the future of climate remedies and their effectiveness at the IACtHR based on present climate litigation in LAC.}, language = {en} } @article{PalmiottoOzkul, author = {Palmiotto, Francesca and Ozkul, Derya}, title = {Contesting automation: the NewTech Litigation Database}, series = {Forced Migration Review}, journal = {Forced Migration Review}, number = {73}, abstract = {Informed litigation is vital to uphold the rights of migrants subject to automated decision-making. This article introduces the NewTech Litigation Database, a tool for anyone seeking to contest the use of automated systems in migration and asylum processes.}, language = {en} } @article{DemirGuerselTheilen, author = {Demir-G{\"u}rsel, Esra and Theilen, Jens T.}, title = {Framing Europe in Human Rights, Framing Human Rights in Europe: Authoritarianism, Migration, and Climate Change in the Council of Europe}, series = {ESIL Reflections}, volume = {12}, journal = {ESIL Reflections}, number = {4}, language = {en} } @incollection{KoeybaşıTurkut, author = {K{\"o}yba{\c{s}}{\i}, Serkan and Turkut, Emre}, title = {Turkey}, series = {The I·CONnect-Clough Center 2019 Global Review of Constitutional Law}, booktitle = {The I·CONnect-Clough Center 2019 Global Review of Constitutional Law}, editor = {Albert, Richard and Landau, David and Faraguna, Pietro and Drugda, Simon}, publisher = {Clough Center for the Study of Constitutional Democracy}, isbn = {978-0-692-15916-3}, publisher = {Hertie School}, pages = {358 -- 362}, language = {en} } @article{DemirGuersel, author = {Demir-G{\"u}rsel, Esra}, title = {Silvia von Steinsdorff, Ece G{\"o}ztepe, Maria Abad Andrade, and Felix Petersen. The Constitutional Court of Turkey - Between Legal and Political Reasoning. Baden-Baden, Nomos 2022, 720 Seiten, ISBN 978-3-8487-4632-3, € 149.-.}, series = {Zeitschrift f{\"u}r Rechtssoziologie}, volume = {43}, journal = {Zeitschrift f{\"u}r Rechtssoziologie}, number = {2}, issn = {2366-0392}, doi = {10.1515/zfrs-2023-1015}, pages = {386 -- 391}, language = {en} } @article{Steininger, author = {Steininger, Silvia}, title = {Where is the l(ove)? Excavating law and labour in The Redress of Law}, series = {European Law Open}, volume = {2}, journal = {European Law Open}, number = {1}, publisher = {Cambridge University Press}, issn = {2752-6135}, doi = {10.1017/elo.2023.17}, pages = {151 -- 161}, abstract = {In his monograph The Redress of Law, Emilios Christodoulidis provides a sophisticated genealogical study of the emergence of total market thinking in Europe. With market constitutionalism having sidelined political constitutionalism, the potential of law to organise the political community is significantly restricted. By examining the commodification of labour, processes of bargaining, unemployment, and strikes, Christodoulidis demonstrates the destructive consequences of law in the service of market rationalities as well as its potential for strategic action to build collective identity in the EU (European Union). Yet, I argue that this book comes with two significant blind spots, namely a dated understanding of both law and labour. First of all, Christodoulidis's systems theoretical understanding of law is neglecting the material conditions that law continuously re-produces in the course of globalization. Secondly, his vision of labour remains rather traditional, focused on unionised, white, and male workers. Both elements are central pillars of his analysis but do not reflect the current reality of the 21st century. In this Article, I challenge his conceptualization by situating his work in recent research on the role of law and labour regulation in global capitalism.}, language = {en} } @article{Palmiotto, author = {Palmiotto, Francesca}, title = {When Is a Decision Automated? A Taxonomy for a Fundamental Rights Analysis}, series = {German Law Journal}, volume = {25}, journal = {German Law Journal}, number = {2}, publisher = {Cambridge University Press}, issn = {2071-8322}, doi = {10.1017/glj.2023.112}, pages = {210 -- 236}, abstract = {This Article addresses the pressing issues surrounding the use of automated systems in public decision-making, specifically focusing on migration, asylum, and mobility. Drawing on empirical data, this Article examines the potential and limitations of the General Data Protection Regulation and the Artificial Intelligence Act in effectively addressing the challenges posed by automated decision-making (ADM). The Article argues that the current legal definitions and categorizations of ADM fail to capture the complexity and diversity of real-life applications where automated systems assist human decision-makers rather than replace them entirely. To bridge the gap between ADM in law and practice, this Article proposes to move beyond the concept of "automated decisions" and complement the legal protection in the GDPR and AI Act with a taxonomy that can inform a fundamental rights analysis. This taxonomy enhances our understanding of ADM and allows to identify the fundamental rights at stake and the sector-specific legislation applicable to ADM. The Article calls for empirical observations and input from experts in other areas of public law to enrich and refine the proposed taxonomy, thus ensuring clearer conceptual frameworks to safeguard individuals in our increasingly algorithmic society.}, language = {en} } @article{Steininger, author = {Steininger, Silvia}, title = {Talks, Dinners, and Envelopes at Nightfall: The Politicization of Informality at the Bundesverfassungsgericht}, series = {German Law Journal}, volume = {24}, journal = {German Law Journal}, number = {8}, publisher = {Cambridge University Press}, issn = {2071-8322}, doi = {10.1017/glj.2023.72}, pages = {1300 -- 1322}, abstract = {The German Federal Constitutional Court (BVerfG) has for decades used informality to establish, build, and protect its authority. Yet, as the political landscape has shifted in recent years, in particular since the end of the Merkel-era Grand Coalition and the rise of the right-wing populist AfD, several longstanding informal practices and institutions have become politicized. Those concern extra-judicial activities of judges, regular informal meetings between the Court and the government, and privileged early access to the Court's press releases for certain journalists. This Article first introduces various forms of informality that the BVerfG employs in its internal self-administration and the judicial-legal culture in general, before tracing how, why, and by whom the three aforementioned practices of informality are challenged. Ultimately, this Article analyzes how the Court and its judges respond to the politicization of informality, and in particular how it triggered processes of formalization of judicial behavior and changes in institutional communication.}, language = {en} } @article{Calı, author = {{\c{C}}al{\i}, Ba{\c{s}}ak}, title = {Optimism in International Human Rights Law Scholarship}, series = {American Journal of International Law}, volume = {118}, journal = {American Journal of International Law}, number = {2}, publisher = {Cambridge University Press}, issn = {0002-9300}, doi = {10.1017/ajil.2024.3}, pages = {374 -- 387}, abstract = {As a field of practice, international human rights law (IHRL) is in constant motion. The four books under review explore the legal, political, and civic dynamics that continuously shape and reshape this vibrant area of law. In this Essay, I underscore two important trends in contemporary IHRL scholarship that these books highlight. First, these works share a strong emphasis on agency, understood as human action that makes a difference in the world, be it the agency of individuals, domestic civil society organizations, transnational organizations, or courts. Highlighting agency, rather than overarching political, economic, and social structures, in turn shifts the attention from human rights law and doctrine "in the books" to an understanding of human rights law as a purposive and dynamic practice.}, language = {en} } @misc{OPUS4-5491, title = {Sovereignty, Technology and Governance after COVID-19: Legal Challenges in a Post-Pandemic Europe}, editor = {De Abreu Duarte, Francisco and Palmiotto Ettorre, Francesca}, publisher = {Bloomsbury Publishing}, isbn = {9781509955985}, pages = {264}, abstract = {This book imagines how Europe might re-organise and re-group after the COVID-19 crisis by assessing its effectiveness when responding to it. For this purpose, it directs its focus on: i) sovereignty challenges; ii) technological challenges and iii) governance challenges. These three challenges do not present hermetic legal problems, they intersect and connect on many levels. The book shows this by examining the relationship between public and private power, and illustrating how the rise of technocratic authority is deeply connected to the choice of technological solutions. It illustrates how constitutional decisions taken during states of emergency give rise to private governance challenges related to cybersecurity and data protection. Experts from the fields of EU governance, data protection, and technology explore these questions to provide answers to how the EU might develop in the future.}, language = {en} } @techreport{BriddickCostello, type = {Working Paper}, author = {Briddick, Catherine and Costello, Cathryn}, title = {Supreme Judgecraft: Non-Refoulement and the end of the UK-Rwanda 'deal'?}, series = {Verfassungsblog}, journal = {Verfassungsblog}, number = {2023/11/20}, doi = {10.59704/6ac71ea278f0af98}, language = {en} } @techreport{Steininger, type = {Working Paper}, author = {Steininger, Silvia}, title = {The CJEU's Feminist Turn? Gender-based Persecution as a Ground for Protection}, series = {Verfassungsblog}, journal = {Verfassungsblog}, number = {2024/02/20}, doi = {10.59704/fb74a4298ba57dc0}, language = {en} } @article{HoijtinkMuehlenhoffWelfens, author = {Hoijtink, Marijn and M{\"u}hlenhoff, Hanna L. and Welfens, Natalie}, title = {Whose (in)security? Gender, race and coloniality in European security policies: Introduction to the Special Issue}, series = {European Security}, volume = {32}, journal = {European Security}, number = {3}, issn = {0966-2839}, doi = {10.1080/09662839.2023.2235286}, pages = {335 -- 346}, abstract = {Building on feminist and postcolonial theoretical approaches across International Relations (IR) and security studies, this Special Issue advances an emerging research agenda within EU studies by shedding light on the gendered and racialised logics of EU security and their links to colonial histories and practices. Together, the contributions to this Special Issue demonstrate how EU security is intrinsically connected to and constituted by histories of colonialism, racism and patriarchy. At the same time, they also highlight how the colonial, racialised and gendered dynamics that underpin EU security and that are mobilised by the EU, its institutions and member states are always complex and shifting. Importantly, they do so by decentring our analysis of EU security moving our focus often away from the EU and towards different, somewhat unexpected sites and geographical locations of EU security. The current war in Ukraine underwrites the need for more historical, contextual and decentred work on EU security, while also highlighting the necessity to reflect on dominant practices of knowledge production and the experiences of people living in and with war through a feminist and postcolonial lens}, language = {en} } @techreport{Baranowska, type = {Working Paper}, author = {Baranowska, Grażyna}, title = {Missing migrants: Lessons from the EU's response to Ukrainian refugees}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:b1570-opus4-45289}, pages = {8}, abstract = {With several reports highlighting cases in which migrants fleeing the war on Ukraine had disappeared en route to a safe haven in the EU, this Policy Brief by Dr. Grazyna Baranowska analyses how the EU and its member states address the issue of missing migrants. Ahead of the first International Migration Review Forum, it specifically shows how the Commission's 10-Point-Plan to manage the arrival of more than 6 million Ukrainian refugees can provide a suitable model for further European initiatives to address the challenges related to missing migrants and implement the Global Compact on Safe, Orderly and Regular Migration to that end.}, language = {en} } @article{SteiningerHamiltonByrneOidtmann, author = {Steininger, Silvia and Hamilton Byrne, William and Oidtmann, Raphael}, title = {The Blind Men and the Elephant: An Empirical Analysis of the Social Sciences in International Law}, series = {Nordic Journal of International Law}, volume = {93}, journal = {Nordic Journal of International Law}, number = {1}, publisher = {Brill}, issn = {0902-7351}, doi = {10.1163/15718107-bja10076}, pages = {11 -- 37}, abstract = {What is the role of the social sciences in international law? This article maps how international law interacts with the social sciences, including its concepts, findings, methods, and epistemologies. It provides a first encompassing genealogy of social science references in six renowned international law journals, including the American, Asian, European, Leiden, and Nordic Journal of International Law as well as the British International and Comparative Law Quarterly, by using a corpus linguistic approach that encompasses more than 15,000 documents from 1907 to 2022. Moreover, it explores how structural factors related to the institutionalization and funding of certain strands of social science-inspired international law scholarship have influenced regional and temporal patterns in Europe, Germany, and Australia.}, language = {en} } @article{SękowskaKozłowskaBaranowskaGliszczyńskaGrabias, author = {Sękowska-Kozłowska, Katarzyna and Baranowska, Grażyna and Gliszczyńska-Grabias, Aleksandra}, title = {Sexist Hate Speech and the International Human Rights Law: Towards Legal Recognition of the Phenomenon by the United Nations and the Council of Europe}, series = {International Journal for the Semiotics of Law - Revue internationale de S{\´e}miotique juridique}, journal = {International Journal for the Semiotics of Law - Revue internationale de S{\´e}miotique juridique}, doi = {10.1007/s11196-022-09884-8}, pages = {1}, abstract = {For many women and girls sexist and misogynistic language is an everyday experience. Some instances of this speech can be categorized as 'sexist hate speech', as not only having an insulting or degrading character towards the individuals to whom the speech is addressed, but also resonating with the entire group, contributing to its silencing, marginalization and exclusion. The aim of this article is to examine how sexist hate speech is handled in international human rights law. The argument derives from the claim than that legal discourse should distinguish between 'sexist speech' and 'sexist hate speech', and that the later may be qualified as a form of violence against women. Then it analyses the approaches of two human rights protection systems—the United Nations and the Council of Europe system—towards the phenomenon of sexist hate speech, by taking their position towards hate speech in general as a point of reference. In both systems, sexist hate speech is being addressed more eagerly under the gender equality framework, including counteracting violence against women, than in their interpretation of hate speech under general human rights law. The article argues the importance of recognizing and addressing sexist hate speech both within the framework of gender equality instruments and anti-hate speech framework established by international human rights bodies.}, language = {en} } @article{Baranowska, author = {Baranowska, Grażyna}, title = {The Rights of the Families of Missing Persons: Going Beyond International Humanitarian Law}, series = {Israel Law Review}, volume = {55}, journal = {Israel Law Review}, number = {1}, doi = {10.1017/S0021223721000182}, pages = {25 -- 49}, abstract = {The main aim of the article is to test how states implement international humanitarian law (IHL) with regard to the families of missing persons. The article shows relevant IHL shortcomings and compares them with rules applicable in cases of enforced disappearance. The national legislation collected in the section titled 'The Missing and Their Families' of the National Implementation Database of the International Committee of the Red Cross is then examined. The analysis addresses three core questions that are particularly relevant for families of missing persons: (1) Who is considered a missing person under each law? Approaching this question allows the testing of whether states follow the understanding of 'missing persons' under IHL treaty law. The second and third questions address two issues that are crucial for families of missing persons that are not addressed in IHL: (2) How is the legal status of the missing person regulated? (3) Are family members provided with measures of reparation and/or assistance? This approach reveals that states rarely apply the IHL understanding of 'missing persons' and predominantly exceed IHL by addressing some of the identified shortcomings. It further shows that states provide families of missing persons either with reparation measures - in cases of human rights violations - or, less often, with measures of assistance in post-conflict situations.}, language = {en} } @incollection{SteiningerPaige, author = {Steininger, Silvia and Paige, Tamsin Phillipa}, title = {4.2 Interdisciplinarity}, series = {Public International Law: A Multi-Perspective Approach}, booktitle = {Public International Law: A Multi-Perspective Approach}, editor = {Gonz{\´a}lez Hauck, Su{\´e} and Kunz, Raffaela and Milas, Max}, publisher = {Routledge}, isbn = {9781003451327}, publisher = {Hertie School}, pages = {128 -- 140}, language = {en} } @incollection{SękowskaKozłowskaBaranowskaGrygielZasadaetal., author = {Sękowska-Kozłowska, Katarzyna and Baranowska, Grażyna and Grygiel-Zasada, Joanna and Szoszkiewicz, Łukasz}, title = {The Impact of the United Nations Human Rights Treaties on the Domestic Level in Poland}, series = {The Impact of the United Nations Human Rights Treaties on the Domestic Level: Twenty Years On}, booktitle = {The Impact of the United Nations Human Rights Treaties on the Domestic Level: Twenty Years On}, editor = {Heyns, Christof and Viljoen, Frans Jacobus and Murray, Rachel}, publisher = {Brill | Nijhoff}, isbn = {9789004377653}, doi = {10.1163/9789004377653_016}, publisher = {Hertie School}, pages = {823 -- 898}, language = {en} } @incollection{Auz, author = {Auz, Juan}, title = {Climate Crisis and the Testing of International Human Rights Remedies: Forecasting the Inter-American Court of Human Rights}, series = {Climate Change and the Testing of International Law / Le droit international au d{\´e}fi des changements climatiques}, booktitle = {Climate Change and the Testing of International Law / Le droit international au d{\´e}fi des changements climatiques}, editor = {Maljean-Dubois, Sandrine and Peel, Jacqueline}, publisher = {Brill | Nijhoff}, isbn = {978-90-04-68239-9}, doi = {10.1163/1875-8096_pplcdu_a9789004682399_13}, publisher = {Hertie School}, language = {en} } @techreport{Baranowska, type = {Working Paper}, author = {Baranowska, Grażyna}, title = {Poland's Sham 'Migration' Referendum}, series = {Verfassungsblog}, journal = {Verfassungsblog}, number = {2023/10/11}, doi = {10.59704/0080ea603408fec9}, language = {en} } @incollection{PalmiottoEttorre, author = {Palmiotto Ettorre, Francesca}, title = {Tracing Transparency: Public Governance of Algorithms and the Experience of Contact Tracing Apps}, series = {Sovereignty, Technology and Governance after COVID-19: Legal Challenges in a Post-Pandemic Europe}, booktitle = {Sovereignty, Technology and Governance after COVID-19: Legal Challenges in a Post-Pandemic Europe}, editor = {De Abreu Duarte, Francisco and Palmiotto Ettorre, Francesca}, publisher = {Bloomsbury Publishing}, isbn = {9781509955985}, doi = {10.5040/9781509956012.ch-005}, publisher = {Hertie School}, pages = {77 -- 102}, language = {en} } @article{CostelloFoster, author = {Costello, Cathryn and Foster, Michelle}, title = {Race Discrimination Effaced at the International Court of Justice}, series = {AJIL Unbound}, volume = {115}, journal = {AJIL Unbound}, doi = {10.1017/aju.2021.51}, pages = {339 -- 344}, abstract = {This essay examines the interpretation of the core international treaty dedicated to the elimination of racial discrimination, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and in particular how the prohibition on race discrimination applies to the treatment of migrants. This essay is timely, as CERD has travelled from the margins of human rights law to the center of the hottest interstate lawfare. At the time of writing, the first ever interstate dispute before any UN treaty body is before the CERD Committee, and CERD has been invoked in several interstate cases before the International Court of Justice (ICJ). Unfortunately, this crucible of adjudication has not marked an increase in principled interpretation. This essay critiques the recent admissibility ruling of the ICJ in Qatar v. U.A.E. for its marginalization of the prohibition of race discrimination, in particular the failure meaningfully to consider how nationality discrimination may constitute prohibited race discrimination.}, language = {en} }