Going Unnoticed? Diagnosing the Right to Asylum in the Charter of Fundamental Rights of the European Union

Published date01 March 2017
Date01 March 2017
AuthorSalvatore Fabio Nicolosi
Going Unnoticed? Diagnosing the Right to
Asylum in the Charter of Fundamental Rights
of the European Union
Salvatore Fabio Nicolosi*
Abstract: Article 18 of the Charter of Fundamental Rights of the European Union
enshrines the right to asylum. Nonetheless, despite its constitutionalisationwithin primary
law, asylum remains a far too amorphous right, whose axiological potential has gone
virtually unnoticed in the ongoing migratory crisis. The paper will argue that this is partly
due to the fact that the Court of Justice on a few occasions has declined toclarify the scope
of Article 18. The provision at issue therefore remains a pathological element that requires
an adequate diagnosis on which accurateprognoses can be based. In an attempt to diagnose
the right to asylum enshrined in Article 18 of the Charter of Fundamental Rights of the
EU, this paper will compare di fferent hermeneutical approaches and ref‌lect on the
contextualisation of the mentioned provision through the lens of domestic and EU case
law and in the light of the recent EUTurkey Statement. The article will ultimately
propose to interpret the EU asylum legislation as instrumental to the effective exercise of
the right to asylum.
I Introductory Anamnesis
The adoption of the Charter of Fundamental Rights of the European Union (EU)
on 7
December 2000 marked a milestone in the legal landscape of fundamental rights
protection in Europe, reinforcing both their visibility in the legal discourse of the Court
[of Justice of the EU] and their role as parameters of constitutionality.
The Charter
was, in fact, intended as the detailed and articulated expression of the principle of
fundamental rights protectionaff‌irmed by the Court.
* Postdoctoral Researcher, Department of European, Public and International Law, Ghent University; EU
Fulbright-Schuman Fellow and Michigan Grotius Research Scholar, Cent er for International and
Comparative Law, University of Mich igan. I would like to thank Prof. Daniel Halberstam, Prof. James
Hathaway, Prof. Agustín José Menénd ez, Lauren Nishimura and the anonym ous reviewers for their
comments onan early draft of this article.
Charter of Fundamental Rights of the European Union, OJ C 364/1,18.12.2000 [hereinafterThe Charter].
S. IglesiasSanchez, The Court and the Charter:The Impact of the Entry into Force of theLisbon Treaty on
the CJEUs Approach to Fundamental Rights, (2012) 49 Common Market Law Review, 1565, 1576. For
further references, see S. de Vries, U.Bernitz and S. Weatherill (eds.), TheProtection of Fundamental Rights
in the EU after Lisbon(Oxford University Press,2013).
A.J. Menéndez , Some Elements ofa Theory of European Fundamental Rights,in A.J. Menéndez and E.O.
Eriksen (eds.), Arguing Fundamental Rights(Spr inger, 2006), at 161.
European LawJournal, Vol. 23, No. 1-2, August 2017,pp. 94117.
© 2017 John Wiley & Sons Ltd.
Originallyadopted as a solemn inter-institutional Declaration,the Charter was adapted
on 12 December 2007 in Strasbourg
in the light of the relevant changes introduced into
the EU legal system by the LisbonTreaty.
Pursuant to Article6 (1) TEU, the latter treaty
provided the Charterwith the same legal value as the Treaties.
Nonetheless,even before
obtaining such legally binding force, the Charter played a major role in enhancing
fundamental rights protection within the EU, also with reference to third country
As emphasised by Peers, in fact, all the provisions of the Charter which are not
expressly limited in personal scope must apply equally to EU citizens and non-citizens
More specif‌ically, the last two provisions, namely Articles 18 and 19, of Chapter
II, which encompasses the rights interpreting the value of freedom, concern, the right
to asylum and protectionin the event of expulsion, removal or extradition respectively.
In particular, theprovision on the right to asylum constitutesan origi nalité technique.
As is known from its Recitals, the Charter reaff‌irms existing fundamental rights as they
result, in particular, from a plurality of external sources, including the constitutional
traditions and international obligations common to the Member States, the European
Convention on Human Rights (ECHR), the Social Charters adopted by the European
Community and bythe Council of Europe and the case law of theCourt of Justice as well
as of the European Court of Human Rights (ECtHR).
Accordingly, the instrument under discussion has not created new rights nor has it
conferred further entitlements to European citizens or third country nationals. The
reference to the right to asylum is thus rather surprising, given the paucity of sources
concerning such right in international law.
Yet, despite constituting the sole provision in the European legal landscape recalling
the scope of the right to seek and enjoy asylum as enshrined in Article 14 (1) of the
Universal Declaration of Human Rights (UDHR),
the signif‌icance and potential of
Charter of Fundamental Rightsof the European Union, OJ C 303/1, 14.12.2007.For a recent commentary,
see, in particular, S. Peers, T. Harvey, J. Kenner and A. Ward, The EU Charter of Fundamental Rights: A
Commentary (OxfordUniversity Press, 2014). For further references, see also G. Di Federico(ed.), The EU
Charter of FundamentalRights: From Declaration to Binding Instrument(Springer, 2011) and W. Mock and
G. Demuro, Human Rights in Europe: Commentary on the Charter of Fundamental Rightsof the European
Union (CarolinaAcademic Press, 2010).
Treaty of Lisbon amending the Treat y on European Union and the Treaty est ablishing the European
Community, 13 December 2007, OJ C 306/1, 17.12.2007. Before the entry into force of the Treaty of
Lisbon the Charter constituted only a joint Declaration or a mere inter-institutional agreement among the
three institutionsthat solemnly proclaimed it, namely the EuropeanCommission, the European Parliament
and the Council.
Consolidatedversion of the Treaty on EuropeanUnion, OJ C 326/13, 26.10.2012,Art. 6 (1).
S. Peers, Immigration, Asylum and the EuropeanUnion Charter of Fundamental Rights,(2001)European
Journal of Migration and Law,141, 146. For a wider appraisal, see also D. Thym, Citizens and Foreigners
in EU Law: Migration Law and ItsCosmopolitan Outlook, (2016)22 European Law J ournal, 296.
See H. Labayle,Article 18 Droit dasile, in EU Networkof Independent Expertson Fundamental Rights,
Commentary of the Charterof Fundamental Rights of the EuropeanUnion, 2006, 170, available at http://ec.
europa.eu/justice_home/cfr_cdf/index_en.htm (accessed20 June 2017).
In thisregard, accordingto P. Craig and G. de Búrca,EU Law Text, Cases and Materials(Oxford University
Press, 2015), at 396, could perhaps bestbe described as a creative distillation of the rights containedin the
various European and internationalagreements and national constitutions on which the ECJhad for some
years alreadybeen drawing.
A considerable exception is Art. 22 (7) of the American Convention of Human Rights (ACHR), adopted
within the Inter-American Specialised Conference onHuman Rights, San José, Costa Rica, 22 November
1969, enteredinto force on 18 July 1978,1144 UNTS 123.
GA Res 217A(III),10 December 1948, A/810.
European Law Journal Volume 23
©2017JohnWiley&SonsLtd. 95

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