Liav Orgad, The Cultural Defence of Nations: A Liberal Theory of Majority Rights, Oxford: Oxford University Press, 2016, 273 pp, hb £50.00.
| Date | 01 January 2017 |
| DOI | http://doi.org/10.1111/1468-2230.12247 |
| Published date | 01 January 2017 |
| Author | Robert Schertzer |
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REVIEWS
Cathryn Costello,The Human Rights of Migrants and Refugees in European
Law, Oxford: Oxford University Press, 2016, 356 pp, hb £60.00.
Human rights make a claim to universalism which creates a constant tension
with state sovereignty. The idea of human rights is one of specific entitlements
for everyone which state sovereign decisions cannot limit or extinguish (or
if the right is a qualified one, only in accordance with the procedures and
limitations inherent in the human right and embedded in the instrument). In
our migration-obsessed Europe, human rights have become something of a
battleground between sovereign state claims to control borders and migration
and human rights claims of migrants and refugees to access to terr itory and
residen ce.
This book provides a masterful state of the art overview of these tensions
from the perspective of two sources of human rights: the European Convention
on Human Rights (ECHR) and the European Union’s Charter of Fundamen-
tal Rights. Both the ECHR and the EU have supranational courts which
have competence to determine issues of human rights and fundamental rights
of those within the personal scope of their respective systems. These courts
have had an increasing case load of migration and asylum cases, over the past
30 years for the European Court of Human Rights (ECtHR) and 10 years for
the Court of Justice of the European Union (CJEU). This is a side effect of
increasingly rigid and exclusionary national laws and regulations which have
as an objective ever stricter immigration control (particularly for the ECtHR)
and the extension of the EU’s competence to new fields, which took place in
1999. The two frameworks of European human rights are very different both
in substance and in their relationship with state sovereignty. On the one hand,
the ECHR system is based on the compliance of the 47 Member States of the
Council of Europe with one specific treaty – the ECHR. The supranational
court system is triggered (almost exclusively) by individuals dissatisfied with
state action (or inaction) in relation to them and after the exhaustion of all
national remedies. On the other hand the EU system clearly has, as Costello
explains, both a Telos and a Chora, destinations of ever-closer union which
entail the adoption of ever increasing EU legislation to bring about harmon-
isation in the fields of competence, including immigration and asylum. The
court is (almost exclusively) engaged by national courts asking questions about
the meaning of EU law in these fields. The tension with state sovereignty is
inherent in both systems but it is expressed very differently and the adjudication
systems have rather different effects in the short and long term.
Charting a course through such a complex set of relationships is by no means
easy, yet Costello does an impressive job in making the relationships compre-
hensible and almost coherent. This is true in respect of the Council of Europe
Member States and EU Member States with their regional organisations, but
C2017 The Author.The Moder n Law Review C2017 The Modern Law Review Limited. (2017) 80(1) MLR 153–171
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Reviews
also between the regional organisations themselves. One of the wise choices
which Costello makes at the start of the book is carefully to delineate what she
is not doing – this is not a general human rights treatise. This choice means that
she can legitimately approach her subject from the flash points where claims to
human rights by migrants and refugees result in clashes with state authorities,
which clashes become the subject of supranational judicial decisions. This is not
a systematic examination of the ECHR or of EU law and how migration and
asylum have been assimilated into each system. The book rather follows a route
of legal challenge. After dealing with the issue of state sovereignty and com-
petence, Costello moves to substantive issues which permit the establishment
of legal challenges. In Chapter 2 she acknowledges and deals with the multiple
sources of human rights, in particular in the EU. The framework of pluralism
works well for her here, providing both the legal pluralism and human rights
pluralism approaches as two poles for the investigation.
The construction of the citizen and the migrant has been the subject of much
legal and sociological study. Costello attacks the issue in Chapter 3, examining
how states claim entitlements to determine who are citizens and thereby who
are not and thus subject to various immigration laws and rules which change
with astonishing rapidity. Indeed, the UK example of changes to citizenship
laws, to deprive even persons born British citizens of their nationality, indicates
that even more fluidity is infiltrating the categories. Costello focuses on ‘illegal’,
‘unauthorized’ and ‘irregular’ as terms of ar t in this discussion. State sovereign
claims to determine their content become a central part of the human r ights
challenges which result. The attempt by states to empty the categories of all
human rights content so that the ‘illegal’, as defined and designated by their
authorities, is unable to enjoy any human rights, is described here clearly and
by reference to the push back by the courts against such interpretations.
In the following chapter Costello deals with the complex issue of an en-
titlement to family life and family migration, as a human r ights issue for the
ECtHR and one of legislation by the EU and interpretation by the CJEU.
The tremendous variety of rules on family reunification applying to different
groups of persons at national level and EU level are almost impenetrable and
of dubious legitimacy, giving rise to human rights issues. These are explained
and the decisions of the courts regarding various claims very well dissected.
The next two chapters deal with asylum seekers, refugees and beneficiaries
of international protection – the groups of foreigners with the most extensively
constituted human rights claims in supranational law.The plurality of sources of
rights of these groups is one of the most difficult issues in dealing with human
rights of refugees. The UN has been active in this field as has the Council of
Europe and the EU. Negotiating the sources of rights and the determination
of claims is not self-evident. Costello does a very good job of navigating
this complexity and rendering it comprehensible. The last substantive chapter
deals with immigration detention and the claim of states to an entitlement
to detain foreigners because they are not citizens and thus lack the right to
be present on the territory. While detention of citizens is carefully limited to
the criminal justice and public health systems (with additional exceptions for
minors), foreigners can be treated differently. But the human rights question is
154 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(1) MLR 153–171
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