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Browsing by study line "Legal Theory"

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  • Kilel, Taina Kukka Maria (2022)
    According to the Treaty of the European Union, the Union is founded on the values of respect for human dignity. Human dignity has a special nature as the primary foundation of universal human rights since it offers a moral source for these rights. However, the concept of human dignity is ambiguous, vague and remains fluctuating. Regarding the concept of human dignity, what is certain is its exceptional importance and its role as a core value of the universal human rights system. Human dignity is also highlighted in the European migration governance framework. The EU return policy, including the Return Directive, emphasises that the goal of these policies is to ensure full respect for the human dignity of third-country nationals residing in the EU. Despite the concept of the dignified return being underlined to exhaustion in various policy papers, its meaning in the context of migration governance remains imprecise. This thesis examines the EU return policy, focusing on the returns of third-country nationals who are residing in the EU without permission. It focuses on the assisted voluntary return and reintegration which is the primary tool to facilitate the returns of irregular migrants. According to the IOM, the purpose of the AVRR is to assist migrants in need to return voluntarily, safely and in dignity in full respect of human rights regardless of their status. These programmes aim to offer a humane and dignified return as an alternative to forcible return for those migrants who are ordered to leave EU territory. This study examines the objectives of the AVRR programmes and aims to answer whether the AVRR can in practice offer voluntary, safe and dignified returns to the irregular migrants residing in the EU. According to the findings of this thesis, multiple issues raise concerns on the actualization of the noble goals of the AVRR. The case law and multidisciplinary research regarding AVRR indicate that returns facilitated by AVRR cannot be considered voluntary neither safe in practice. Furthermore, if neither voluntariness nor safety can be ensured, emerges the question of whether these returns can still be considered dignified. According to this study, the concept of dignified return remains unclear and ambiguous, and these returns facilitated by AVRR cannot offer a real option of returning in dignity. The fact that AVRR can be considered more humane and more dignified return than forcible deportations does not make these returns humane or dignified per se.
  • Lehto, Enni (2021)
    The rights of sexual minorities have advanced at an increasingly rapid pace over the last decades, particularly in Europe. The European Convention on Human Rights (the Convention) and its compliance monitoring institutions, the European Commission of Human Rights and the European Court of Human Rights (the Court), have played an important role in this development. However, despite the many important victories that have been won at Strasbourg over the years, the Court has so far been unwilling to afford fully equal rights to sexual minorities, especially when it comes to marriage and other forms of legal protection for relationships. While some European countries have broadened their definitions of marriage of their own accord, others are busy amending their constitutions to specifically prevent any such development. In such a landscape, a supranational institution like the European Court of Human Rights has a key role to play in directing the future of gay rights in Europe. This study maps the development of relationship related rights of homosexual people in the jurisprudence of the Court and explores some possible explanations for both the shifts that have taken place and the current state of these rights under the Convention. It will first lay out the relevant caselaw to demonstrate how the level of protection afforded to homosexual applicants has differed from that enjoyed by the heterosexual majority in the past and what inequalities still exist today. This reveals five key issues that have featured as battlegrounds for equality in the practice of the Court: the complete criminalisation of homosexuality, unequal ages of consent for homosexual and heterosexual sex, the exclusion of homosexual relationships from the definition of “family life” under Article 8 of the Convention, the lack of legal recognition for homosexual partnerships, and the lack of access to marriage and consequently to other rights and benefits exclusively available to married couples. While the first three have subsequently been rectified, the Court has yet to articulate a clear requirement to provide some form of legal recognition to homosexual couples and has consistently denied that any obligation to provide for same-sex marriage could be derived from the Convention. The second part of the study will explore two possible explanations for both the way these rights have developed and their current state: the Court’s role as an international court and its conceptualisation of homosexuality. Neither the Court as a whole nor its individual judges can avoid having their views of homosexuality influenced by the wider societal attitudes. The understanding of homosexuality affects the way the Court handles cases related to it, and consequently the changes in the Court’s conceptualisation of homosexuality can explain developments in its jurisprudence. Analysing the caselaw though this lens indicates that a conception of homosexuality as undesirable and dangerous can be found underlying the earlier caselaw. However, the Court’s understanding has since evolved, and it currently does not consider homosexuality fundamentally different or less deserving than heterosexuality. The Court’s still ongoing refusal to afford equal rights to homosexuals can be better attributed to reasons stemming from its legal and political position as an international court. As an international institution founded by a voluntary treaty, the Court’s effectiveness ultimately relies on the willing cooperation of the contracting states. Therefore, it needs to constantly persuade the states of the legitimacy of its decisions and to be careful not to “go too far”, lest they stop executing its judgements or withdraw from the treaty altogether. The Court attempts to preserve its legitimacy mainly through the creation and application of its interpretation methods, which function to sustain an appearance of judicial consistency and legal stability and to persuade its audience of its impartiality and value-neutrality. The European consensus doctrine is particularly useful for improving the foreseeability of the Court’s decisions and increasing the member states’ confidence in the legitimacy of the institution. While the application of the consensus doctrine has been beneficial for the evolution of gay rights in the past, it now appears to be hindering any further progress. Since the majority of the member states do not yet offer fully equal rights to LGBT+ people, the stringent application of the European consensus doctrine leads the Court to conclude that the remaining inequalities fall within the states’ margin of appreciation. There are, however, some possible alternatives to the consensus approach. For example, focusing on the discriminatory aspects of the cases might prove more effective for furthering the development of gay rights under the Convention.