Drawing on the works of Roberto Esposito and Jacques Rancière the paper seeks to unpack and revisit the notion of legal personhood and the correlated distinction between legal subjects and objects in contemporary EU law. Using the lens of asylum, its intended aim is to bridge the gap between the order of nature and that of the political community and, more specifically, the dual-faceted and opposing reality of individuals in relation to their ‘equality’ as humans in the order of nature and their ‘inequality’ within the social/political order. This first line of inquiry is tied in with a second set of questions focusing on ideas of justice and solidarity, which seeks to examine why the EU post-Lisbon still fails to constitute a valid platform for translating its own self-proclaimed commitments to human rights into justiciable normative claims. Finally, the paper explores ways for the EU to overcome this deficit by looking at some of the most recent proposals of EU asylum reform.
The paper observes the events of 2015 – 2017 when large numbers of refugees traveled through the countries in SE Europe. It focuses on the reactions of the states along the ‘Balkan route’ to the large numbers of arrivals: the creation of a ‘humanitarian corridor’, a mode of transportation through the territory of a country with disregard for national legislation and international human rights law. Connected are the legislative changes in Slovenia, creating the possibility of temporary suspension of refugee law, and the suspension of the Schengen regime on the EU internal borders. The paper looks at these factual-juridical phenomena as states of exception (Agamben). Drawing on Carl Schmitt, the paper inquires whether these case studies of state of exception can reveal to us who the sovereign is. Importantly, in responding to an exceptional situation, the states cannot ignore the actions of the neighbouring states with which they find themselves in a “Europe of interdependent states”.
Solidarity has long been a fundamental value laying at the core of EU integration laws and policies as well as a guiding principle operating both horizontally and vertically in various regimes of international law. In the regional context of supranational cooperation, the Treaty of Lisbon has deepened international solidarity’s commitment emphasizing its role in binding together key stakeholders. Referring to Art. 80 TFEU, this paper aims at investigating the notion and normative relevance of infra-EU and extra-EU interstate solidarity with regard to the elusive regulatory framework of fair sharing of responsibilities in case of humanitarian crisis or mass migration emergencies. Theoretical prospects and paradoxes of European solidarity will be empirically addressed analysing the distributive justice implications of ECJ ‘migration jurisprudence’ on sharing practices (e.g. resettlements) grounded on mutual trust, solidarity and fairness.
In constitutional law, situations of public emergency (PE) relate mostly to war, terrorism, civil unrest and natural disasters of large scale; little attention has been given so far to other phenomena. Despite the fact that migrations historically form a part of human identity, attitudes towards them changed drastically in the last decades, especially in the developed countries to the extent that (il)legal migration policies already play a dominant role in the public discourse. With strong emphasis on intertwining migrations with a threat and, ultimately, to criminalise them, a door opens to apply the same sentiment in scenarios of PE. Drawing on Loevy, author claims that laws of exception clearly show shortfalls of traditional European human rights regimes in time of mass migratory 'crisis' (e.g. PE derogation clauses; balancing tests for limiting rights) and raise fundamental questions on the legitimacy and compliance of national PE-like regulations with international obligations.