Thou Shalt Not Oppress a Stranger: On the Judicial Protection of the Human Rights of Non-EC Nationals—A Critique

In this article I examine the manner in which the European Court of Justice has interpreted the limits to its human rights jurisdiction in cases concerning non-EC nationals. So far the Court has interpreted these limits narrowly. This whole area has now become socially, politically and ethically most delicate. I think the current jurisprudence is unsatisfactory both in its reasoning and its results. I also think that it is important for symbolic, and not only practical reasons, that the voice of the European Court, within the proper bounds of the judicial function, should be particularly pure. I shall therefore try and demonstrate why the case-law is 'wrong* and in need of review. Frequently, the classical language of law dispassionate, dry and technical conceals the dramatic social context to which it relates and masks the underlying ethical precepts and ideological prejudices on which it is premised. In the analytical and critical part of this essay I shall follow these hallowed cannons of our discipline. But in this brief introduction I take the licence to transgress the line. The treatment of aliens, in the Community and by the Community and its Member States, has become in my view a defining challenge to an important aspect of the moral identity of the emerging European