2017 年 2017 巻 37 号 p. 134-153
This paper analyses the formation process of the Common European Asylum System (CEAS), with particular focus on the interaction between international organizations (IOs), namely, inter-organizational relations. It attempts to answer why and how the fundamental rights protection under the Dublin system has been improved.
Section 1 exhibits the background of the research. The Dublin system, which allocates the responsibility to examine an application for international protection lodged in an EU member state, has been criticized for the insufficient protection of asylum-seekers’ fundamental rights in particular member states. Although this problem emerged through interrelations vis-à-vis external actors other than EU institutions nor member states, such interaction has been largely ignored. As a corollary, the existing explanations for the formation of the CEAS have not paid due attention to the intersection of multiple actors as well as the outcome thereof.
Against this background, Section 2 briefly reviews the existing literature with regard to the CEAS formation. It begins by criticizing the traditional debate between the member-state-governments-centric approach and the supranational-organizations-centric one. They are, so to speak, inward-looking thus cannot duly consider the interaction with external actors nor the information inflow from outside. Then the paper examines the external governance approach, thereby theoretically justifies focusing on inter-organizational relations. Particularly, this paper highlights the mode that can be called contestation between IOs, such as reference, criticism and indirect review.
Drawing on that framework, Section 3 traces how the legislation process of Dublin III regulation was influenced by criticism and indirect review by other IOs, specifically the Council of Europe (CoE) and the UN High Commissioner for Refugees (UNHCR). These organizations criticize some member states, specifically Greece, for the inadequate reception conditions, based on the information they gain on the ground. Although these criticisms themselves are not legally-binding, they gradually gained legal relevance by being referred to by the European Court of Human Rights, as well as the Court of Justice of the EU. Consequently, the recast regulation substantively reflected the criticisms raised by other IOs. After describing the development, this paper mentions twofold theoretical implications. First, it restates the contributions to the literature reviewed above. Second, it suggests connecting the viewpoint of inter-organizational relations with the literature on global constitutionalism and global democracy.
In the end, Section 4 summarizes the overall argument, and shows some remaining agenda.