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Jens Vedsted-Hansen and Ida Elisabeth Koch

Abstract

The complex and often sensitive interrelationship between international human rights obligations and national governments and legislatures is the subject of debate in the Nordic countries. Criticism has been voiced against the dynamic interpretation of human rights norms and the limitations on legislatures resulting from the judicial activities at the international level, in particular the European Court of Human Rights. Against this background, this article discusses the interdependence between democratic legitimacy and the protection of fundamental rights, as illustrated by recent ECtHR case law. While the need for democracy to be capable of defending itself has been recognised, the ECtHR has emphasised the impact of the rule of law in the context of restrictions of rights as well as the responsibility of domestic authorities to exercise their legislative and other competences as a precondition for being granted the margin of appreciation. The distinction between civil and political rights and socio-economic rights has had significant influence on the discussion of human rights, democracy and the division of powers, and the animosity against entrusting power to settle legal disputes to judicial bodies is particularly strong with regard to socio-economic rights. Therefore, this traditional perception of the normative character of the two sets of human rights is being questioned, and the indispensable role of social, economic and cultural rights in developing stable and sustainable democracies is illustrated by reference to theory and practice applying an integrated approach to the various types of rights. The article concludes with some reflections on the impact of the criticism of dynamic human rights on the future protection of socio-economic rights, and the dilemmas inherent in domestic implementation of evolving international norms.

New Asylum Countries?

Migration Control and Refugee Protection in an Enlarged European Union

Edited by Rosemary Byrne, Gregor Noll and Jens Vedsted-Hansen

How is access to asylum and other forms of extraterritorial protection regulated in the European Union? Is the EU acquis in these areas in conformity with international law? Which tools does international law offer to solve collisions between both? And, finally, is law capable of bridging the foundational oppositions embedded in migration and asylum issues?

This volume is about the transformation of asylum in Europe in the context of the EU enlargement process. This transformation involves norms, as well as the procedures and resources for their implementation. In the candidate countries, as in the west, the process of transformations is marked by the tension between the interests of protection and migration control. Through their comprehensive analysis, the authors illuminate the legal and political dynamics which underlie this tension. Chapters trace the complex patterns of national, sub-regional and EU law and policy that are driving the future of asylum in an expanded Europe. This allows for reflection on what the transformation process tells us about the current EU asylum acquis, and what it tells us about the prospects for refugee protection in the new frontier states and beyond. This book is the result of a three year study carried out by academics and practitioners from the candidate countries, current Member States, and international organizations. It explores the evolution of refugee policy and practice in a changing Europe.