Jacqueline Dutheil de la Rochère
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199219032
- eISBN:
- 9780191711862
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199219032.003.0009
- Subject:
- Law, EU Law
This chapter examines the EU Charter of Fundamental Rights. Topics discussed include the influential effect of the charter and the right to good administration expressed in Article 41 of the Charter. ...
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This chapter examines the EU Charter of Fundamental Rights. Topics discussed include the influential effect of the charter and the right to good administration expressed in Article 41 of the Charter. It is argued that even if the Charter does not formally become part of EU constitutional law, as long as the Constitutional Treaty is not ratified it plays an influential and significant role in the building of a European corpus of law protecting fundamental rights. The Charter is referred to in the preambles of texts of secondary legislation and used as a document of reference by the various EC/EU institutions. The Charter, although not binding, influences the case law of European courts.Less
This chapter examines the EU Charter of Fundamental Rights. Topics discussed include the influential effect of the charter and the right to good administration expressed in Article 41 of the Charter. It is argued that even if the Charter does not formally become part of EU constitutional law, as long as the Constitutional Treaty is not ratified it plays an influential and significant role in the building of a European corpus of law protecting fundamental rights. The Charter is referred to in the preambles of texts of secondary legislation and used as a document of reference by the various EC/EU institutions. The Charter, although not binding, influences the case law of European courts.
Henk Addink
- Published in print:
- 2019
- Published Online:
- May 2019
- ISBN:
- 9780198841159
- eISBN:
- 9780191876653
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198841159.001.0001
- Subject:
- Law, Constitutional and Administrative Law
The pivotal aim of this book is to explain the creation, development, and impact of good governance from a conceptual, principal perspective and in the context of national administrative law. Three ...
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The pivotal aim of this book is to explain the creation, development, and impact of good governance from a conceptual, principal perspective and in the context of national administrative law. Three lines of reasoning have been worked out: developing the concept of good governance; specification of this concept by developing principles of good governance; and implementation of these principles of good governance on the national level. In this phase of further development of good governance, it is important to have a clear concept of good governance, presented in this book as the third cornerstone of a modern state, alongside the concepts of the rule of law and democracy. That is a rather new national administrative law perspective which is influenced by regional and international legal developments; thus, we can speak about good governance as a multilevel concept. But the question is: how is this concept of good governance further developed? Six principles of good governance (which in a narrower sense also qualify as principles of good administration) have been further specified in a systematic way, from a legal perspective. These are the principles of properness, transparency, participation, effectiveness, accountability, and human rights. Furthermore, the link has been made with integrity standards. The important developments of each of these principles are described on the national level in Europe, but also in countries outside Europe (such as Australia, Canada, and South Africa). This book gives a systematic comparison of the implementation of the principles of good governance between countries.Less
The pivotal aim of this book is to explain the creation, development, and impact of good governance from a conceptual, principal perspective and in the context of national administrative law. Three lines of reasoning have been worked out: developing the concept of good governance; specification of this concept by developing principles of good governance; and implementation of these principles of good governance on the national level. In this phase of further development of good governance, it is important to have a clear concept of good governance, presented in this book as the third cornerstone of a modern state, alongside the concepts of the rule of law and democracy. That is a rather new national administrative law perspective which is influenced by regional and international legal developments; thus, we can speak about good governance as a multilevel concept. But the question is: how is this concept of good governance further developed? Six principles of good governance (which in a narrower sense also qualify as principles of good administration) have been further specified in a systematic way, from a legal perspective. These are the principles of properness, transparency, participation, effectiveness, accountability, and human rights. Furthermore, the link has been made with integrity standards. The important developments of each of these principles are described on the national level in Europe, but also in countries outside Europe (such as Australia, Canada, and South Africa). This book gives a systematic comparison of the implementation of the principles of good governance between countries.
Henk Addink
- Published in print:
- 2019
- Published Online:
- May 2019
- ISBN:
- 9780198841159
- eISBN:
- 9780191876653
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198841159.003.0012
- Subject:
- Law, Constitutional and Administrative Law
The term ‘human rights’ has different meanings and is used in many academic subjects. It is used by lawyers and politicians, by philosophers and theologians, and, more generally, by the public. The ...
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The term ‘human rights’ has different meanings and is used in many academic subjects. It is used by lawyers and politicians, by philosophers and theologians, and, more generally, by the public. The term is used to denote a broad spectrum of very diverse rights, ranging from the right to life to the right to a cultural identity. They involve all elementary preconditions for an existence worthy of human dignity. These rights are ordered and specified in different ways. Often a distinction is made between civil and political rights on the one hand and economic, social, and cultural rights on the other. Some also add collective rights as a third group. The first group is related to restricting the powers of the state in respect of the individual. The second group often requires governments to intervene actively to create good conditions for human development, such as employment, education, and healthcare. When we speak about the right to good governance we must distinguish between the right as such and the underlying norms which are part of the principles of good governance: properness, transparency, participation, effectiveness, and accountability. This means that the underlying norms of the right to good governance are also related to these five principles. The inclusion of human rights as one of these principles here is to make it more explicit that this is not only a subjective right for the citizens but also an obligation for the government. The right and the obligation are two sides of the same coin.Less
The term ‘human rights’ has different meanings and is used in many academic subjects. It is used by lawyers and politicians, by philosophers and theologians, and, more generally, by the public. The term is used to denote a broad spectrum of very diverse rights, ranging from the right to life to the right to a cultural identity. They involve all elementary preconditions for an existence worthy of human dignity. These rights are ordered and specified in different ways. Often a distinction is made between civil and political rights on the one hand and economic, social, and cultural rights on the other. Some also add collective rights as a third group. The first group is related to restricting the powers of the state in respect of the individual. The second group often requires governments to intervene actively to create good conditions for human development, such as employment, education, and healthcare. When we speak about the right to good governance we must distinguish between the right as such and the underlying norms which are part of the principles of good governance: properness, transparency, participation, effectiveness, and accountability. This means that the underlying norms of the right to good governance are also related to these five principles. The inclusion of human rights as one of these principles here is to make it more explicit that this is not only a subjective right for the citizens but also an obligation for the government. The right and the obligation are two sides of the same coin.
Bernard Stirn
- Published in print:
- 2017
- Published Online:
- June 2017
- ISBN:
- 9780198789505
- eISBN:
- 9780191831300
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198789505.003.0006
- Subject:
- Law, EU Law, Constitutional and Administrative Law
Chapter 6 shows how, in spite of the differences of the various domestic legal systems in Europe, a European model for public administration is emerging. This can be seen across different topics such ...
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Chapter 6 shows how, in spite of the differences of the various domestic legal systems in Europe, a European model for public administration is emerging. This can be seen across different topics such as the scope of public action, the provision of services of general interest; but also in the way in which public administration is organized, in respect of matters such as, for example, economic governance, delegated management and public procurement, and independent authorities and agencies. The chapter sets out and analyses the principle of good administration and the role it plays in European public law, and then turns to the topic of the organization of the civil service in Europe, analysing the question both at the European and at the domestic level.Less
Chapter 6 shows how, in spite of the differences of the various domestic legal systems in Europe, a European model for public administration is emerging. This can be seen across different topics such as the scope of public action, the provision of services of general interest; but also in the way in which public administration is organized, in respect of matters such as, for example, economic governance, delegated management and public procurement, and independent authorities and agencies. The chapter sets out and analyses the principle of good administration and the role it plays in European public law, and then turns to the topic of the organization of the civil service in Europe, analysing the question both at the European and at the domestic level.
Violeta Moreno-Lax
- Published in print:
- 2017
- Published Online:
- October 2017
- ISBN:
- 9780198701002
- eISBN:
- 9780191770517
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198701002.003.0010
- Subject:
- Law, Human Rights and Immigration
The rights to asylum and to protection against refoulement, as per Chapters 8-9, entail both substantive and procedural components. This chapter scrutinizes the remedies and procedural safeguards ...
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The rights to asylum and to protection against refoulement, as per Chapters 8-9, entail both substantive and procedural components. This chapter scrutinizes the remedies and procedural safeguards attached to them, paying particular attention to the most relevant international provisions of refugee law and human rights protection. Article 16 CSR51; Articles 14(1), 2(3) and 7 ICCPR; Article 3 CAT; as well as Articles 6 and 13 ECHR are all scrutinized with the purpose of determining the content of the right to effective judicial protection in Article 47 CFR. On the basis of the ‘cumulative standards’ approach, it is concluded that fair trial and effective remedy guarantees are applicable in the context of pre-border controls, including the right to a hearing in person and to an appeal ‘with automatic suspensive effect’. In light of this, it is argued that inherent in a claim to international protection or in a plea of non-refoulement is an entitlement to provisional admission to the territory of the intercepting Member State for the purpose of such procedures as may be necessary to guarantee the effectiveness of the rights that protection seekers derive from EU law.Less
The rights to asylum and to protection against refoulement, as per Chapters 8-9, entail both substantive and procedural components. This chapter scrutinizes the remedies and procedural safeguards attached to them, paying particular attention to the most relevant international provisions of refugee law and human rights protection. Article 16 CSR51; Articles 14(1), 2(3) and 7 ICCPR; Article 3 CAT; as well as Articles 6 and 13 ECHR are all scrutinized with the purpose of determining the content of the right to effective judicial protection in Article 47 CFR. On the basis of the ‘cumulative standards’ approach, it is concluded that fair trial and effective remedy guarantees are applicable in the context of pre-border controls, including the right to a hearing in person and to an appeal ‘with automatic suspensive effect’. In light of this, it is argued that inherent in a claim to international protection or in a plea of non-refoulement is an entitlement to provisional admission to the territory of the intercepting Member State for the purpose of such procedures as may be necessary to guarantee the effectiveness of the rights that protection seekers derive from EU law.
Violeta Moreno-Lax
- Published in print:
- 2017
- Published Online:
- October 2017
- ISBN:
- 9780198701002
- eISBN:
- 9780191770517
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198701002.001.0001
- Subject:
- Law, Human Rights and Immigration
This monograph examines the interface between extraterritorial border surveillance, migration management, and asylum seeking under EU law. The final goal is to determine the compatibility of ...
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This monograph examines the interface between extraterritorial border surveillance, migration management, and asylum seeking under EU law. The final goal is to determine the compatibility of pre-entry controls, carried out in the form of Schengen visas, carrier sanctions (with or without assistance from ILOs), and maritime interdiction, with the fundamental rights acquis of the EU, in particular the right to protection against refoulement, the right to asylum, and the rights to good administration and effective judicial protection enshrined in the Charter of Fundamental Rights. The conflictual assertion contained in Tampere and successor programmes that the Union shall remain ‘open’ to those seeking access to it in search of protection, but, at the same time, ‘counteract illegal immigration and cross-border crime’ provides the background to this research. The result has been an ambiguous regulation of access to EU territory for asylum purposes. Two sets of rules have developed simultaneously, which are difficult to reconcile: one set assimilates protection seekers to the generic category of ‘third-country nationals’ subject to Schengen admission criteria, with another set containing references to ‘special provisions’ applicable to exiles, leading to a situation where up to 90% of refugee arrivals occur through irregular (unsafe) channels, as smuggled or trafficked migrants. In these circumstances, elucidating the exact reach of EU international protection obligations and the articulation between EU border/pre-border norms and EU fundamental rights becomes essential. The monograph thus strives to determine the content of the specific responsibilities of the Member States in this context and establish their implications for the ‘integrated border management’ system the Union is committed to realise.Less
This monograph examines the interface between extraterritorial border surveillance, migration management, and asylum seeking under EU law. The final goal is to determine the compatibility of pre-entry controls, carried out in the form of Schengen visas, carrier sanctions (with or without assistance from ILOs), and maritime interdiction, with the fundamental rights acquis of the EU, in particular the right to protection against refoulement, the right to asylum, and the rights to good administration and effective judicial protection enshrined in the Charter of Fundamental Rights. The conflictual assertion contained in Tampere and successor programmes that the Union shall remain ‘open’ to those seeking access to it in search of protection, but, at the same time, ‘counteract illegal immigration and cross-border crime’ provides the background to this research. The result has been an ambiguous regulation of access to EU territory for asylum purposes. Two sets of rules have developed simultaneously, which are difficult to reconcile: one set assimilates protection seekers to the generic category of ‘third-country nationals’ subject to Schengen admission criteria, with another set containing references to ‘special provisions’ applicable to exiles, leading to a situation where up to 90% of refugee arrivals occur through irregular (unsafe) channels, as smuggled or trafficked migrants. In these circumstances, elucidating the exact reach of EU international protection obligations and the articulation between EU border/pre-border norms and EU fundamental rights becomes essential. The monograph thus strives to determine the content of the specific responsibilities of the Member States in this context and establish their implications for the ‘integrated border management’ system the Union is committed to realise.
