Books by Violeta Moreno-Lax
Europe is currently experiencing a "refugee crisis", demonstrated by millions of displaced people... more Europe is currently experiencing a "refugee crisis", demonstrated by millions of displaced people unseen since World War II. This book examines the interface between the EU's response to irregular flows, in particular the main extraterritorial border and migration controls taken by the Member States, and the rights asylum seekers acquire from EU law.
"Remote control" techniques, such as the imposition of visas, fines on carriers transporting unsatisfactorily documented third-country nationals, and interception at sea are investigated in detail in a bid to assess the impact these measures have on access to asylum in the EU. The book also thoroughly analyses the rights recognised by the EU Charter of Fundamental Rights to persons in need of international protection, inclusive of the principle of non-refoulement, the right to leave any country including one's own, the right to asylum, and the right to remedies and effective judicial protection.
The fundamental focus of the book is the relationship between the aforementioned border and migration controls and the rights of asylum seekers and, most importantly, how these rights (should) limit the scope of such measures and the ways in which they are implemented. The ultimate goal is to conclude whether the current series of extraterritorial mechanisms of pre-entry vetting is compatible in EU law with the EU rights of forced migrants.
![Research paper thumbnail of 'Boat Refugees' & Migrants at Sea: A Comprehensive Approach. Integrating Maritime Security with Human Rights (Brill, 2016) [with Papastavridis]](https://attachments.academia-assets.com/49152827/thumbnails/1.jpg)
This book aims to address ‘boat migration’ with a holistic approach. The different chapters consi... more This book aims to address ‘boat migration’ with a holistic approach. The different chapters consider the multiple facets of the phenomenon and the complex challenges they pose, bringing together knowledge from several disciplines and regions of the world within a single collection. Together, they provide an integrated picture of transnational movements of people by sea with a view to making a decisive contribution to our understanding of current trends and future perspectives and their treatment from legal-doctrinal, legal-theoretical, and non-legal angles. The final goal is to unpack the tension that exists between security concerns and individual rights in this context and identify tools and strategies to adequately manage its various components, garnering an inter-regional / multi-disciplinary dialogue, including input from international law, law of the sea, maritime security, migration and refugee studies, and human rights, to address the position of ‘migrants at sea’ thoroughly.
A detailed expert commentary on the legislation establishing the second phase of the Common Europ... more A detailed expert commentary on the legislation establishing the second phase of the Common European Asylum System
Since 1999, the EU has adopted legislation harmonizing many areas of immigration law, in particul... more Since 1999, the EU has adopted legislation harmonizing many areas of immigration law, in particular rules on borders, visas, legal migration, and irregular migration. The much-enlarged and fully updated second edition of this book contains the text of and detailed commentary upon every significant measure in this field proposed or adopted up until 1 September 2011. It includes commentary on the EU visa code, the Schengen Borders Code, the Frontex Regulation, the Returns Directive, the Directives on family reunion, long-term residents and single permits for migrant workers, and many more besides.
This is the essential guide for any lawyers, academics, civil servants, NGOs and students interested in this area of law.
Articles & Chapters by Violeta Moreno-Lax
This Article problematises the role of crisis in the governance of asylum in Europe. It unveils i... more This Article problematises the role of crisis in the governance of asylum in Europe. It unveils its nature, predominance, and implications as a structural component of EU law and policy in this domain. The main point I intend to convey is that crisis, in and by itself, constitutes a system of governance producing very problematic effects. The association between (unwanted) migration and refugee flows with crisis in the European context has allowed for the exceptionalisation of rights and legal safeguards, with the pre-emption of unauthorised arrivals becoming the main concern. The danger, instability, and abnormality connected with crisis pervades law and policy, justifying mechanisms that contravene minimal rule of law standards, including due process guarantees and effective judicial protection. The incremental normalisation of exceptions has led to a position where the suspension of (rule of law-based) governance has become a form of governance. The prorogation of “normal” (rule of law-compliant) arrangements has given way to “exceptional” means of managing asylum, starting with the 2015 “refugee crisis” and the relocation-plus-hotspots scheme, which have now been streamlined as part of the New Pact on Migration and Asylum reforms. The resulting generalisation of derogations, the proliferation of legal fictions and rights negations that the envisaged amendments involve, is progressively normalising a situation of non-access to international protection in the EU, with deleterious consequences not only for asylum seekers, but for the integrity of the EU legal order and fundamental rights at large.
This contribution takes issue with what I have called the 'constitutional dismantling' of externa... more This contribution takes issue with what I have called the 'constitutional dismantling' of external migration policy through the tactical informalisation of readmission cooperation. It maps out the strategic use of soft law mediating the tacit approval or active involvement of the main EU actors. The strategy is supposed to enhance policy outcomes but is at the expense of foundational principles. The principles of conferral, institutional balance, and sincere/loyal cooperation impose key constraints on EU/Member State action that the choice for soft law ignores. My main contention is that this is not an unintended consequence, but a deliberate or, at least, tolerated result, amounting to a form of 'concerted dis-integration' pursued by the very actors supposed to guard the EU integration project in line with Treaty provisions. The approach denotes the instrumentalisation of legal mechanisms for the advancement of policy objectives, embracing a regulation-without-legitimation paradigm that unravels the EU's constitutional framework.
This article contests the strategic use of what I have called meta-borders. These are the array o... more This article contests the strategic use of what I have called meta-borders. These are the array of border enforcement mechanisms implemented beyond the physical frontiers of States through different means and by different actors, for the purpose or with the effect of denying human rights protection to (unwanted) non-citizens. The ensuing 'irresponsibilisation' of States of destination, on whose behalf or for whose benefit the measures are executed, is anathema to the Rule of Law. My main contention is that prevailing understandings of jurisdiction and responsibility, as applied to externalised migration controls (the core feature of meta-borders), need to be revised. Currently, they allow for the emergence of a double standard, solely dependent on location, whereby the State may act abroad with impunity in relation to the human rights consequences of its conduct, exploiting geographical distance to create and legitimate ethical and legal detachment from its own wrongdoing. This article proposes an alternative model of 'responsibilisation' that tallies with the flexible spatiality of migration governance. The functional configuration of the metaborder is matched with an equally functional conceptualisation of jurisdiction that rejects unaccountable forms of power. The article thus problematises the localisation of the meta-border, mapping its multiple roles, modes, and dimensions, highlighting the significance of its legal manifestations, before exploring the impact of law on the de-territorialisation of the sovereign exercises of demarcation, delimitation, and exclusion that it implies. The meta-border, crafted by legal fiat, actively (re)orders space, curtailing the reach of human rights and disclaiming responsibility for related violations. To reconcile power with accountability, I advance the 'responsibilisation' model, premised on the acceptance that human rights, as fundamental components of the Rule of Law, track and constrain all exercises of State authority.
https://verfassungsblog.de/solidarity-crimes-legitimacy-limits/
This Special Issue takes stock of current debates across different disciplines and problematises ... more This Special Issue takes stock of current debates across different disciplines and problematises the concept of vulnerability in the field of migration and its relationship to law, building on discussions held during the MAPS Project Conference of December 2020. The Conference considered the treatment that migrants are facing in Europe and elsewhere, focusing on the difficulties they encounter in accessing their rights and interrogating the law's ambiguous position in their regard: exacerbating vulnerability, while, at the same time, also providing a possible source of protection that can unravel restrictive policies of deterrence and control. This dual role of the law vis-à-vis migration, as simultaneously a generator of vulnerability and its potential antidote, is what contributions to this Special Issue grapple with and aim to elucidate.
![Research paper thumbnail of EU Constitutional Dismantling through Strategic Informalisation: Soft Readmission Governance as Concerted Dis-integration [EUI LAW Working Paper 2023/03]](https://attachments.academia-assets.com/106867012/thumbnails/1.jpg)
https://cadmus.eui.eu/handle/1814/75959
This paper takes issue with what I have called the process of ‘constitutional dismantling’ that c... more This paper takes issue with what I have called the process of ‘constitutional dismantling’ that can be observed in the field of external migration policy through the tactical informalisation of readmission cooperation. It maps out the strategic use of soft law to secure expulsion agreements with third countries, mediating the tacit approval or active involvement of the EU institutions and the Member States. The strategy is perceived by its proponents to increase the efficacy of policy and improve its intended outcomes, but at the expense of foundational principles of EU law. The principles of conferral, institutional balance, and sincere/loyal cooperation impose key constraints on EU and Member State action that the choice for soft law mechanisms ignores. My main contention is that this is not an unintended consequence, but a deliberate result with noxious effects for the entire EU legal order. The disregard for core rule of law standards that this approach demonstrates amounts to a form of ‘concerted disintegration’ pursued by the very actors supposed to guard the EU integration project and oversee its realisation in line with Treaty provisions. Rather than furthering the ‘integration through law’ model, at work since van Gend & Loos, the informalisation trend negates the force and function of legal norms as both the object and agent of Europeanisation. The soft law route denotes the instrumentalisation of legal mechanisms for the advancement of policy objectives, the fulfilment of which is elevated above and beyond constitutional rules (that apparently can be dispensed with at will), embracing instead a regulation-without-legitimation paradigm that unravels the EU’s constitutional framework. The approach signals a perilous deviation towards the tactical weakening of key foundations of the EU system, de-naturalising the external dimension of EU integration for strategic gain in the migration field, eliminating democratic oversight, impeding judicial review, preventing human rights enforcement, and corroding competence attribution, institutional balance, sincere cooperation, and EU values overall. The most alarming is the reverse competence creep that this move involves, operated (by stealth) without Treaty amendment, and that it is orchestrated from within the Union. The intentional subversion of the Community method strays towards a new ends-driven kind of discretionary governance, where founding principles can be disregarded for policy convenience. The paper problematises this development against the background of the rule of law crisis unfolding in the Union, not only in the Member States, as others have documented, but crucially at the EU level as well. The ramifications of this phenomenon, although yet unknown in their full extent, are significant across the board for the EU regime as a whole.
![Research paper thumbnail of 'The Informalisation of the External Dimension of EU Asylum Policy: The Hard Implications of Soft Law' [in Tsourdi/De Bruycker eds, Research Handbook on EU Immigration and Asylum Law, Edward Elgar, 2022]](https://attachments.academia-assets.com/97879164/thumbnails/1.jpg)
There is a tension at the heart of the Common European Asylum System (CEAS), which this chapter u... more There is a tension at the heart of the Common European Asylum System (CEAS), which this chapter unpacks. While a right to asylum has been recognised in legally binding form, the regulation of admission to the Member States and the relevant procedures by those in need of international protection remains equivocal. There are no channels to reach the EU regularly and safely as a refugee. Article 18 of the Charter of Fundamental Rights has yet to become fully accessible, exercisable, and effective in the protection it provides. The instruments adopted as part of the external dimension, including Regional Protection Programmes; resettlement; and other ‘complementary pathways’, as this chapter shows, are small in scale, good-will based, and non-compulsory. This leads to a fundamental mismatch between the hard law obligations that the Charter recognises and the soft law mechanisms adopted for their implementation. The underlying assumption seems to be that, while the Union and its Member States may reach beyond territorial borders to deter irregular migration, their human rights and refugee law obligations are territorially limited, and no extra-territorial duties are owed to those attempting to seek asylum in the EU. The chapter critiques how recourse to soft law has rendered access to protection tokenistic and unenforceable, thus degrading the hard law character of the right to asylum and attendant guarantees (to non-refoulement, effective remedies, and good administration).
https://www.nomos-elibrary.de/10.5771/9783748931164/reforming-the-common-european-asylum-system
![Research paper thumbnail of Autonomy of the EU Legal Order - A General Principle? On the Risks of Normative Functionalism and Selective Constitutionalisation (with Ziegler) [EUI Working Paper Law 2021/15]](https://attachments.academia-assets.com/78334705/thumbnails/1.jpg)
This paper considers the different uses and conceptualisations of ‘autonomy’ in EU law and public... more This paper considers the different uses and conceptualisations of ‘autonomy’ in EU law and public international law (PIL) to explore its nature and legal character and determine whether it has (or should) become a general principle of EU law (GPEU). This is significant because of the powerful role and position of GPEU in the hierarchy of EU law, as self-standing legal sources, framing (and legitimising) the legal order, requiring conform interpretation, and displacing lower-ranking norms in case of conflict. We argue that autonomy should be deemed a descriptive umbrella term referring to the (functional) ‘independence’ of EU law. We take issue with the idea of autonomy being a normative one, capable on its own of providing a justification for legal decisions and related outcomes. The Court of Justice (CJEU)’s overarching claim to autonomy in Opinion 2/13 goes in the opposite direction and appears to establish it as a GPEU. This would mean that autonomy is more than the (descriptive) consequence of a set of rules and the sui generis nature of the EU as an international organisation. An independent normative content of autonomy could then be taken as the cause and justifier of the independent legal personality, powers, law-making capacity, mission, vision, and institutional makeup of the EU, and as the ultimate source of validity of ‘the structure and objectives of the EU’. It may, thus, become a sort of (self-standing) metateleological rule of interpretation of EU norms, introducing a federalist bias towards ‘an ever closer Union’, fostering regional integration through the realization of the EU’s objectives (as interpreted by the CJEU) practically at any rate. As we demonstrate, this is problematic on a number of levels. It exposes the flaws of functionalism as normative underpinning of a (potential) GPEU of autonomy, as it would entail a claim to (unhindered) self-rule above and beyond the relative independence of international organisations, and even the sovereignty of states, which does not tally with the fundamental architecture of the international legal order. If this were the case, the EU would be rendered an unconstrained, unaccountable super-entity, unbound from the foundational premises of PIL.
![Research paper thumbnail of ‘Protection at Sea and the Denial of Asylum’ [in Costello, Foster, and McAdam (eds), The Oxford Handbook of International Refugee Law, OUP, 2021]](https://attachments.academia-assets.com/67822742/thumbnails/1.jpg)
This chapter grapples with the vexed issue of protection at sea, unpacking destination States’ pr... more This chapter grapples with the vexed issue of protection at sea, unpacking destination States’ practices of interdiction and their justification on purported humanitarian grounds. It problematizes the instrumentalization of rescue, based on the supposed benevolent effect of ‘stopping the boats’ as a means to ‘save lives’. Two competing yet complementary dynamics are detected and critiqued. First, while destination States inflate their policing competence through reliance on rescue rhetoric and intervene beyond prerogatives explicitly recognized in the law of the sea, they tend to maintain minimalistic constructions of the associated concepts of ‘distress’ or ‘place of safety’ to reduce the scope of their legal responsibilities. Thus, secondly, they deflate their rescue duties and detach them from related international protection obligations, either by deflecting them to third countries or by negating them altogether. Drawing on examples from the US Caribbean interdiction programme, the Australian ‘Pacific Strategy’, and the mare clausum approach favoured in the Mediterranean, the chapter traces the shift from direct to indirect forms of interdiction, increasingly performed by third countries or private actors, culminating in practices of interdiction by omission, which not only tolerate, but purposively embed, the risk of death as part of the migration control toolbox of destination States. The final effect is one that paradoxically transforms rescue into an interdiction tool, denying access to asylum for ‘boat migrants’.
![Research paper thumbnail of Mutual (Dis-)Trust in EU Migration and Asylum Law: The 'Exceptionalisation' of Fundamental Rights [in González Pascual and Iglesias Sánchez (eds), Fundamental Rights in the EU Area of Freedom, Security and Justice, CUP 2021]](https://attachments.academia-assets.com/65170951/thumbnails/1.jpg)
This chapter deals with the functioning of ‘mutual trust’ as the organising principle of mechanis... more This chapter deals with the functioning of ‘mutual trust’ as the organising principle of mechanisms of (implicit) mutual recognition in the fields of migration and asylum within the EU Area of Freedom, Security and Justice (AFSJ), looking both at rights-conferring and rights-restricting measures, comparing their treatment. The chapter uncovers a contradictory dynamic whereby the mutual recognition of rights-restricting measures across the EU is near-automatic and practically unconditional, while the mutual recognition of rights-conferring measures virtually non-existent. The reason for this is identified to lie in the interplay between presumed (abstract) trust, as required by the case law of the Court of Justice, and the real (practical) distrust, professed at horizontal and vertical level in the day-to-day administration of EU migration and asylum governance. Such interplay produces insidious effects on third-country nationals, particularly in the case of asylum applicants, leading to the arbitrary ‘exceptionalisation’ of their fundamental rights.
![Research paper thumbnail of 'Intersectionality, Forced Migration, and the Jus-generation of the Right to Flee: Theorising a Composite Entitlement to Leave to Escape Irreversible Harm' [in Çalı, Bianku and Motoc (eds), Migration and the European Convention on Human Rights, OUP 2021]](https://attachments.academia-assets.com/64974729/thumbnails/1.jpg)
Çalı, Bianku and Motoc (eds), Migration and the European Convention on Human Rights (OUP, 2021) 43-83 , 2021
This chapter critiques the piecemeal approach of the Strasbourg Court to the question of access t... more This chapter critiques the piecemeal approach of the Strasbourg Court to the question of access to asylum, showing how intersectionality theory can facilitate a principled shift towards an analysis that captures the complexity of refugees’ position and recovers the indivisibility of human rights. The theory calls for the multi-dimensional appreciation of human experience in a way that encompasses the whole breadth of lived realities. A similar approach is advocated herein to the construal of the law so that intersectional thinking guides not only the appraisal of factual constellations, but also the interpretation of applicable norms. Only a whole-of-person approach matched by a whole-of-legal-system interpretation can realise substantive justice in practice. This requires a holistic understanding that penetrates the full depth of individual situations and incorporates all the relevant legal provisions in cumulative fashion, acknowledging the jus-generative effects of their interaction, overcoming the limitations of current constructions of rights as disconnected from each other and from the circumstances to which they apply. In the asylum-seeking context, the outcome of the intersection between the right to leave and the right to protection against ill-treatment is the composite ‘right to leave to escape ill-treatment’ or ‘right to flee’, based on the interactive combination of existing entitlements (without the need for new law). The purchase of this method is wider than this chapter has scope to demonstrate. It can be applied to the ECHR as a whole, promoting internal consistency and supporting its development as a constitutional instrument of European public order.
Available accounts on jurisdiction, effective control, and the reach of human rights protections ... more Available accounts on jurisdiction, effective control, and the reach of human rights protections fail to provide a coherent construction that is principled and applicable across the board, within and beyond territorial borders. The "functional jurisdiction" model posited herein resolves these incongruities by looking at the normative foundation of sovereign authority overall, predicated on an exercise of "public powers" through which State functions are discharged, taking the form of policy delivery and/or operational action, whether inland or offshore, and which translates into "situational" control. Using the pending case of S.S. and Others v. Italy as an illustration, the article focuses on the sovereign-authority nexus that unites a specific state with a specific individual in a specific situation, triggering human rights obligations even through mechanisms of "contactless control" exercised via remote management techniques and/or through a proxy third actor. The role of extraterritorial operations, qua complex mechanisms of governance that implement broader policies with a planning, rollout and post-implementation phase, is central to this re-conceptualization, as is also the understanding that what makes control "effective" is its capacity to determine the material course of events and the resulting position in which those affected find themselves upon execution of the measure(s) concerned.
Uploads
Books by Violeta Moreno-Lax
"Remote control" techniques, such as the imposition of visas, fines on carriers transporting unsatisfactorily documented third-country nationals, and interception at sea are investigated in detail in a bid to assess the impact these measures have on access to asylum in the EU. The book also thoroughly analyses the rights recognised by the EU Charter of Fundamental Rights to persons in need of international protection, inclusive of the principle of non-refoulement, the right to leave any country including one's own, the right to asylum, and the right to remedies and effective judicial protection.
The fundamental focus of the book is the relationship between the aforementioned border and migration controls and the rights of asylum seekers and, most importantly, how these rights (should) limit the scope of such measures and the ways in which they are implemented. The ultimate goal is to conclude whether the current series of extraterritorial mechanisms of pre-entry vetting is compatible in EU law with the EU rights of forced migrants.
This is the essential guide for any lawyers, academics, civil servants, NGOs and students interested in this area of law.
Articles & Chapters by Violeta Moreno-Lax
"Remote control" techniques, such as the imposition of visas, fines on carriers transporting unsatisfactorily documented third-country nationals, and interception at sea are investigated in detail in a bid to assess the impact these measures have on access to asylum in the EU. The book also thoroughly analyses the rights recognised by the EU Charter of Fundamental Rights to persons in need of international protection, inclusive of the principle of non-refoulement, the right to leave any country including one's own, the right to asylum, and the right to remedies and effective judicial protection.
The fundamental focus of the book is the relationship between the aforementioned border and migration controls and the rights of asylum seekers and, most importantly, how these rights (should) limit the scope of such measures and the ways in which they are implemented. The ultimate goal is to conclude whether the current series of extraterritorial mechanisms of pre-entry vetting is compatible in EU law with the EU rights of forced migrants.
This is the essential guide for any lawyers, academics, civil servants, NGOs and students interested in this area of law.
There are two documents, the full-length study and a brief advocacy tool containing 'Key Messages'. Both are available at: http://www.redcross.eu/en/News-Events/NEWS-ROOM/Migration-Europe-in-Crisis/
PART II: http://eumigrationlawblog.eu/asylum-visas-as-an-obligation-under-eu-law-case-ppu-c-63816-x-x-v-etat-belge-part-ii/
This chapter then analyses whether ‘autonomy of the EU legal order’ may be considered to be a new general principle of EU law and what its content would be, taking the perspectives, from EU law and public international law, respectively. It will consider the definition and content of ‘autonomy’ and the functions that references to ‘autonomy’ serve within and across legal orders, and as to articulate/conceptualise the relationship of EU law with public international law.
This innovative Research Handbook explores the judicial and scholarly approaches to, and theories surrounding, general principles in the EU legal order against the backdrop of considerable uncertainty about the concept. It does so by analysing a diverse range of general principles in discrete areas of EU law (‘zooming in’) and from external, wider perspectives on the notion of a general principle of law in international law, comparative law, and legal theory (‘zooming out’).
Rather than arguing for a single closed definition of what a general principle of law in the EU legal order must look like, this Research Handbook identifies conceptual, theoretical, and legal parameters within which the doctrine of general principles can be meaningfully discussed and contested in EU law. The different analytical layers built into this Handbook shed light on whether general principles are defined by the different contexts in which they apply; whether general principles are in practice leading to more coherence between different areas of EU law; and what challenges they create for the EU legal order. Chapters thus help to contribute to a more refined methodological and doctrinal understanding of general principles in the EU legal order.
Opening up new spaces to critically reflect on the concept, role, significance, and limitations of general principles, the Research Handbook on General Principles in EU Law will be a key resource for scholars and students of European law, politics, and theory of integration and internationalisation.