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

• DOI: http://doi.org/10.1111/eulj.12226
• Published date: 01 March 2017
• Date: 01 March 2017

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 ‘constitutionalisation’within 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 EU–Turkey Statement. The article will ultimately

propose to interpret the EU asylum legislation as instrumental to the effective exercise of

the right to asylum.

1

I Introductory Anamnesis

The adoption of the Charter of Fundamental Rights of the European Union (EU)

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2

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’.

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3

The Charter

was, in fact, intended as ‘the detailed and articulated expression of the “principle of

fundamental rights protection”aff‌irmed by the Court’.

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4

* 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.

1

Charter of Fundamental Rights of the European Union, OJ C 364/1,18.12.2000 [hereinafter‘The Charter’].

2

S. IglesiasSanchez, ‘The Court and the Charter:The Impact of the Entry into Force of theLisbon Treaty on

the CJEU’s 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).

3

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. 94–117.

© 2017 John Wiley & Sons Ltd.

Originallyadopted as a solemn inter-institutional Declaration,the Charter was adapted

on 12 December 2007 in Strasbourg

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in the light of the relevant changes introduced into

the EU legal system by the LisbonTreaty.

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Pursuant to Article6 (1) TEU, the latter treaty

provided the Charterwith ‘the same legal value as the Treaties’.

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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

nationals.

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

alike’.

7

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’.

8

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).

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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.

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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),

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the signif‌icance and potential of

4

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).

5

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.

6

Consolidatedversion of the Treaty on EuropeanUnion, OJ C 326/13, 26.10.2012,Art. 6 (1).

7

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.

8

See H. Labayle,‘Article 18 –Droit d’asile’, 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).

9

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’.

10

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.

11

GA Res 217A(III),10 December 1948, A/810.

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