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The year 2018 has seen several human rights milestone events worldwide: at the international level the 70th anniversary of the Universal Declaration of Human Rights was widely celebrated, as was the 25th birthday of the Vienna Declaration and Programme of Action, the result of the World Conference on Human Rights in Vienna 1993. But also at the national, the Austrian level (the European Yearbook on Human Rights (EYHR) is edited by the three major human rights institutes in Austria) several human rights jubilees have shaped the academic human rights discourse in 2018: Austria ratified the European Convention on Human Rights in 1958 (60 years); the two Covenants on Civil and Political and Economic, Social and Cultural Rights in 1978 (40 years); and the UN Convention on the Rights of Persons with Disabilities in 2008 (10 years). But despite all these long-standing human rights commitments which the international community and states have celebrated in 2018, human rights are still a topic of concern and their violation remains widespread despite the effusive affirmations by world leaders to respect, protect and promote human rights. The EYHR 2019 thus aims to continue to contribute to the academic debate on human rights and to raise awareness for topical human rights issues in Europe and beyond.
The editorial team – composed of representatives of the European Training and Research Centre on Human Rights and Democracy of the University of Graz (UNI-ETC), the Ludwig Boltzmann Institute of Human Rights Vienna (BIM), the Austrian Human Rights Institute of the University of Salzburg and the Global Campus of Human Rights Venice – when selecting the contributions paid particular attention to the highest academic standard, gender balance and a concerted mix of contributions by well-established academics and ‘newcomers’ in the field of human rights research. As in the last years the EYHR 2019 remains structured around current human rights challenges the European institutions – i.e. the European Union (EU), the Council of Europe (CoE), and the Organization for Security and Co-operation in Europe (OSCE) – are currently facing. This year we introduced a new part dedicated to reports by special procedures of international organisations, reflecting the important work which is done in the field of monitoring human rights violations worldwide. Topical human rights issues beyond European borders are further addressed in the part ‘Others’.
2018 has been another challenging year for human rights in Europe and globally. International human rights standards, the rule of law and international human rights institutions have come under increasing pressure. The eleventh volume of the European Yearbook on Human Rights discusses the backgrounds of these developments and outlines the potential implications and possible solutions. The backsliding of democracy in Poland and Hungary, the human rights fallout from Brexit and the human rights situations in Chechnya and the Ukraine are mentioned as just a few examples. The Yearbook also includes contributions on all-time classics such as the right to freedom of expression or fair trial and tensions between security and the protection of human rights, as well as more recent developments on the rights of persons with disabilities and the rights of children to be heard in political processes.The European Yearbook on Human Rights brings together renowned scholars, emerging voices and practitioners. Split into parts devoted to recent developments in the European Union, the Council of Europe and the OSCE as well as through reports from the field, the contributions engage with some of the most important human rights issues and developments in Europe. The Yearbook helps to better understand the rich landscape of the European regional human rights system and is intended to stimulate discussions, critical thinking and further research in this field.
In the past, the Court of Justice of the European Union (CJEU) has been one of the driving forces ensuring the compliance of secondary acts adopted under the Common European Asylum System (CEAS) with fundamental rights issues. It even came to be considered a ‘ fundamental rights ‘ Court, often taking a progressive stance in interpreting the relevant norms in light of the Charter of Fundamental Rights (CFREU) and other applicable human and refugee rights norms. While the Court has always been eager to demonstrate its legal integrity preventing second thoughts on its political independence, the proclaimed ‘ refugee crisis ‘ of the last years with the surrounding political turmoil seems to have had an impact on the Court and its approach towards the protection of fundamental rights within the European Union (EU) as well. This article seeks to analyse two judgments X and X and A.S. and Jafari considered exemplary for the shift the CJEU has undergone in the last years. In both cases, the CJEU has had the opportunity to change the course of the CEAS ensuring its compliance with fundamental rights standards. However, as will be shown below, the Court in 2017 has adopted a conservative if not politically motivated approach to CEAS cases.
When in 2015 more than one million people arrived at the shores of the EU, policy makers were quick in proclaiming it a ‘ migration ‘ or ‘ refugee crisis ‘. While 3,771 reported deaths in the Mediterranean and other related tragedies triggered only modest expressions of condolences, the increasing numbers of people applying for asylum provoked a chain reaction with mostly emotional, populist and fear-induced policies adopted at the Member States (MS) level. The crisis rhetoric surrounding the arrivals of people seeking international protection supported the renaissance of unilateral approaches, and soon those arrivals became the stress test for the European project as a whole. With the temporary reintroduction of internal border controls by several MS, the Union seemed to be rudely awakened from its Schengen dream, and the story of the ever-closer Union seemed to have come to an end. One reason why the Union was shaken to the core by the events of 2015 was that structural deficiencies of the CEAS surfaced and revealed that the EU is far from having accomplished a coherent set of norms in the field of asylum.