Marion Panizzon

Introduction to Special issue: ‘migration governance in an era of large movements: a multi-level approach’

Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the worldu2009…u2009. Surely some revelation is at hand. W.B. Yeats, The Second Coming 1919.1 If ambition carries the day,u2009…u2009they will...

The ‘spirit of the Schengen rules’, the humanitarian visa, and contested asylum governance in Europe – The Swiss case

ABSTRACT The paper examines why Switzerland along with several other European countries introduced a Schengen visa to substitute for individual applications for asylum at the country’s embassy as a pathway to protect Syrian refugees. The case study highlights the inherent interest asymmetries in a tenuous arrangement of multi-layered governance, revealing a conflict over the interpretation of Schengen law in a collective governance environment – a conflict that was recently resolved by the Court of Justice of the European Union (CJEU). Drawing on multi-layered governance, the paper discusses why the Swiss divergence from the ‘spirit’, but not the ‘letter’ of the Schengen code (a metaphor used by the EU Commission), could be considered as an example of ‘de-coupling’ from the negotiated, intergovernmental order. Whereas de jure the unity of the Schengen visa code is maintained, the amount of discretion which Switzerland and other Schengen countries have used to interpret the regulatory purpose behind the Schengen humanitarian visa went too far for the CJEU and the EU Commission. The case study illustrates how the interpretation of rules matters in a multi-layered framework of governance, possibly giving the ability to react to changing circumstances, but also bearing the potential for conflict.

Fairness, Promptness and Effectiveness: How the Openness of Good Faith Limits the Flexibility of the DSU

The WTO Appellate Body has drawn from international legal principles to intensify the normative impact of good faith duties vaguely described in Articles 3.10 and 4.3 of the Dispute Settlement Understanding (DSU). In the context of the Appellate Bodys repeated rejection of good faith principles in the substantive WTO law of GATT, GATS and TRIPS, the development of procedural good faith adjudication stands out. This article will show how the general good faith principle served to reduce the flexibility remaining in the WTOs Member-driven dispute settlement procedure and often abused by powerful WTO Members to draw out disputes at the expense of developing country Members. One will describe how the Appellate Body derived and distinguished from good faith in Article 3.10 DSU a due process standard of cumulatively requiring a fair, prompt and effective dispute resolution. This due process standard enables the Appellate Body to review (and restrict) the use of procedural rights by WTO Members even when the exercise of these rights appears - on its face - consistent with DSU norms. The article finds that the due process standard is a first-time judicial assertion in Appellate Body practice of a broader good faiths enforceability. Relating procedural good faith adjudication to the level of fairness, the WTO judiciary thus relegates to the past power-oriented, diplomacy-based structures of WTO dispute settlement.