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Title: A model for combating race discrimination within EU law
Author: McInerney, Siobhán Alice
ISNI:       0000 0001 0995 2567
Awarding Body: University of Oxford
Current Institution: University of Oxford
Date of Award: 2001
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Values are operative in all of human rights law. That is an organizing principle of the entirety of this work. I have endevoured to remain true to a self-consciously value-orientated approach to elaborating a model against race discrimination in EU law, and 1 have made no attempt to disguise the substantive values which underpin it, or the commitment to protect fundamental human rights above market goals. While values are controversial, and while reasonable people will disagree on their application, it is submitted that attempting an articulation and exploration of those at work in antidiscrimination law is essential. Values are not, however, plucked from the abstract, and this is how context introduces itself, and remains central to this work. Context is viewed as determinative of values, and therefore of laws and their application. Chapter II offers a contextual definition of race and racism, looking to how a contextualised approach forces us to go beyond formalistic categorise and assumptions of objectivity in anti-discrimination law. The hope is that by freeing our legal conceptions of these categories, we may more fully appraise the extent of discrimination in context, and allow for more progressive strategies to combating it. Chapter III follows from the theoretic position established in Chapter II, looking to various aspects of the 'European context,' its history of immigration and the constitution of its diverse population. This chapter describes the political climate that prevails today and the rise of the extreme right in the past decade, as well as the social and economic consequences of racism in context. It examines also the emergence of 'Eurocentrism' as a new form of ethnocentrism specific to Europe, and partially reinforced by EU law. Chapter IV also relies on the contextual approach of Chapter 11 but applies it to a legal context. It examines the legal context of race discrimination in EU law, with special emphasis on the legal construction of race through the distinction between EU Nationals and Third Country Nationals. This discussion traces the roots of that foundational distinction to Member State laws and looks to the ways in which EU law has replicated and amplified it, and more importantly, to the ways in which it supports a racialised or even racist construct. The focus of this discussion is therefore de jure discrimination which effects race discrimination and how EU law participates in constructing racial Other. Chapter V concerns the corollary de facto discrimination affecting all minorities residing in the EU, but highlights this discrimination as the 'central case' because it afflicts minority EU citizens in the exercise of their EU law rights: in this way it is about insiders who are treated as Other. This chapter examines discriminatory contexts as they are reinforced by aspects of EU law, and as they generate an EU obligation to act from within EU law itself. Chapter VI is a theoretic excursus, which considers the multitude of choices which the anti-discrimination law may embody, dividing these into two basic poles: the liberal perspective and the alternative perspective. A number of central substantive tenets of anti-discrimination law are analysed from the perspective of these two poles. The second part of the chapter applies this theoretic modality to EU law, again considering substantive tenets in EU law in the light of the two poles of anti-discrimination law, with special emphasis on Article 13 and the new Race Directive. A final part of this chapter considers form and the adequacy of the current EU law anti-discrimination model in the light of other existing models. Chapter VII builds on Chapter VI but looks 'behind' the poles that present themselves in EU law, to the normative justifications and aims of anti-discrimination laws. Once again, this issue presents a multitude of choices. This chapter focuses on one such choice involving two distinct orientations in EU law: the Single Market and fundamental human rights. These are considered in tum as justifications for action against race discrimination, and it is argued that a balance between them is needed in EU law. Beyond that mutually defining coexistence, it is also argued that where they are irreconcilable, the normative prioritisation should favour fundamental human rights. An overarching theme of this work is the acknowledgment of the centrality of context and the duality of anti-discrimination law in terms of theoretic models, substantive choices and normative justification and aims. Acknowledging these offers a stronger model for combating discrimination in novel and sui generis contexts, such as the legal context of the EU, allowing us transcend existing legal models in search of more effective synergies. EU law cannot combat race discrimination without acknowledging the sui generis nature of its social and legal contexts and the politics and norms at work at all its levels, or without recognising the specific challenges presented by an economic law burgeoning fundamental rights provisions, or by the sheer diversity of standards and traditions and legal rules that exist within its boundaries.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: Human rights law