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Announcements: EJIL:Live Extra Featuring Dapo Akande on IHL and IHRL; CfP Int’l Orgs and the Rule of Law (Wellington, NZ); CfP Development and Rule of Law (London & USA); Conference on Rule of Law in the EU (London); Seminar on Ethics in the Int’l Bar (London); ILA Conference Registration Extended (Essex)

Published on May 23, 2015        Author: 

1.  In case you missed it, the latest EJIL: Live Extra! features Joseph Weiler and Dapo Akande of the University of Oxford discussing the relationship between international humanitarian law and international human rights law.  The EJIL: Live Extras series comprises short video conversations with leading international law scholars.

2.  Call for Papers – International Organisations and the Rule of Law: Perils and Promise, Victoria University of Wellington Faculty of Law, New Zealand, 7-8 December 2015. This workshop will take a fresh look at the resources that international law possesses to ensure that international organisations (IOs) are held accountable for their errors and excesses, while remaining relevant and effective in the face of ever growing global challenges. How can international law develop in a way that preserves and enhances the dynamic possibilities of IOs while making sure that they comply with the rule of law? Can international law offer solutions, or is it part of the problem? The workshop organisers welcome papers that present original legal or empirical research; theoretical reflections; case studies from practice; and critical and historical perspectives. For more details see the call for papers here.

3.  The Global Rule of Law Exchange, a new project at the Bingham Centre for the Rule of Law, seeks to address key challenges posed by global development and its relationship to the rule of law. To this end, the Exchange will compile a list of short papers (such as think pieces, practice notes, policy documents, etc.) of around 1,500 – 3,000 words presenting research, case-studies and evidence from the field. Multidisciplinary analyses are encouraged, as are quantitative and qualitative studies. Conferences will be organised in London and in the United States in late 2015 and early 2016 to discuss the papers (date TBA). Shortlisted papers will feature in an edited publication, but the Exchange is also exploring opportunities of publishing a collection of these articles in a peer-reviewed journal. It will consider the challenges in respect of developing the rule of law in emerging economies, with regard to issues such as access to justice, corruption, legal certainty, government decision-making and the measurement of success in rule of law interventions. Read the rest of this entry…

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Filed under: Announcements and Events
 

A Brief Response to Pizzutelli and Sitaropoulos

Published on May 22, 2015        Author: 

The argument that I made focused on the selection for admission of foreigners on the basis of economic worth, and I denominate this selection ‘discriminatory’. In his response Nikolaos Sitaropoulos argues that he is “not convinced that, in itself, such differentiation constitutes discriminatory, and hence unlawful, treatment”. However, the fact that it may not be, at least according to the European Court of Human Rights ‘unlawful’, or rather, in breach of the European Convention of Human Rights, although perhaps in breach of other international rules, does not mean that it is not ‘discriminatory’. The international human rights analysis of Sitaropoulos points in the direction of lawfulness for this discrimination in the context of admission. Allowing for this analysis to be correct, and at least suspending an important new argument, I would reframe the title of my argument to argue that it is international human rights law, and not just international migration law, that provides a license to discriminate on the basis of economic worth, exactly because it considers it lawful to do so. Referring to this practice as ‘differentiating’, rather than ‘discriminatory’, ignores the fact that we are talking about a very binary selection process: you are either admitted, or you are not. To differentiate is to identify difference. To discriminate is to grant somebody a right, or to deny it, on the basis of that difference.

Francesca Pizzutelli provides a welcome overview of international legal limitations that may protect people from discrimination according to economic worth. How should we, however, qualify these limitations? Do they indicate a new legal development? Or are they instead scattered exceptions that confirm a rule? Her analysis strongly reminds me of two very telling and almost identical anecdotes in which a refugee lawyer in the UK and an immigration officer in Germany were advising some prospective asylum seekers to seek entry through employment or ‘knowledge migration’, because that offered much better prospects. In addition, how should we assess these rather humble limitations against a backdrop in which citizenship of EU countries is increasingly for sale? And what to make of the fact that as this piece goes online, the UN Security Council is preparing military action against smugglers and accepting that this may result in the killing of ‘migrants’, as ‘collateral damage’? This author at least finds it hard to see in the limitations highlighted by Pizzutelli a significant obstacle to the right to discriminate according to economic worth.

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The Human Rights of Migrants as Limitations on States’ Control Over Entry and Stay in Their Territory

Published on May 21, 2015        Author: 

As Juan Amaya-Castro points out, (domestic) migration legislation is about selecting among potential or prospective migrants, i.e. creating two categories of migrants: ‘documented’ or ‘regular’ migrants, whose migration status complies with established requirements, and ‘undocumented’ or ‘irregular’ migrants, whose migration status does not so comply. Where does this leave international law and, as Juan Amaya-Castro calls it, its humanist-egalitarian tradition?

This post will argue that Amaya-Castro underestimates the strict and strong limitations on the sovereignty of states established by international human rights law, international refugee law and international labour law. In particular, states’ discretion in the adoption and enforcement of migration policies is limited by their obligation to respect, protect and promote the human rights of all individuals within their territory and subject to their jurisdiction (UN Human Rights Committee, General Comment No. 15, para. 5). This post discusses some of the far-reaching consequences of this principle, focusing on three types of limitations on state sovereignty with respect to migration: limitations on the prerogative to control entry; limitations on the prerogative to establish conditions for entry and stay; and limitations on the treatment of irregular migrants.

Limitations on the prerogative to control entry

The obligation not to reject refugees and asylum-seekers at the frontier may be an exception to state sovereignty conceptually, but it is far from exceptional in practice, especially in certain European contexts. Of the 19,234 people “intercepted” along EU borders by the joint border control operation Mos Maiorum between 13-26 October 2014, 11,046 people (57%) claimed asylum (Mos Maiorum final report, p. 25). More than a quarter of those “intercepted” were Syrians, followed by Afghans, Eritreans, Somalis, Iraqis – individuals whose need for international protection can easily be argued (ibid., p10).

Nikolaos Sitaropoulos expertly discussed the limitations imposed on states’ sovereign prerogative to control entry and stay by the Council of Europe human rights framework, in particular its obligation of non-discrimination. Outside that framework, the guidance provided by the UN Committee on the Elimination of Racial Discrimination (CERD) is also worth mentioning. In 1998 the Committee criticised Switzerland’s so-called three-circle-model migration policy, which classified foreigners on the basis of their national origin, as ‘stigmatizing and discriminatory’ (UN Doc. CERD/C/304/Add.44, para. 6). Four years later, the Committee expressed concern at the possible discriminatory effect of Canadian migration policies (in particular, a high ‘right of landing fee’) on persons coming from poorer countries (UN Doc. A/57/18, para. 336). On these grounds, this post argues that the general principle of non-discrimination is a limitation to states’ discretion in the adoption and enforcement of all migration policies, including their prerogative to control entry. Read the rest of this entry…

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Why International Migration Law Does Not Give a License To Discriminate

Published on May 20, 2015        Author: 

Juan Amaya-Castro argues that states’ selective immigration policies are discriminatory, and that this discrimination has been legitimized by international (migration) law. From a legal point of view, this is rather a misperception that confuses differential with discriminatory treatment. The latter is not allowed by contemporary international law as this post will show.

International migration law is not a self-contained legal regime. It is a multi-layered body of law consisting of various international, regional or bilateral treaties and agreements which leave “the alien’s body protected by a varying number of layers (legal regimes) depending upon the sartorial tastes of the State involved” (Richard Lillich, The Human Rights of Aliens in Contemporary International Law, Manchester UP, 1984, 122). Some of the most migrant-protective layers are certainly those provided by international and European human rights law and principles.

As regards migrants’ entry, the UN Human Rights Committee in its 1986 General Comment No 15 noted that the International Covenant on Civil and Political Rights

“does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise”.

This is true also under another core law-making treaty, the European Convention on Human Rights (ECHR), as interpreted by the Strasbourg Court (see below).

Differential treatment of migrants does not always equal discrimination

Migration control measures that differentiate among (prospective) migrants are not automatically unlawful. Whether such state action affecting migrants constitutes  discrimination is grounded in the principle of prohibition of discrimination enshrined notably in Article 14 ECHR and in Protocol No. 12 to the ECHR. Non-discrimination grounds indicatively enlisted therein are: “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Read the rest of this entry…

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International Migration Law: License to Discriminate?

Published on May 19, 2015        Author: 

The story of international law and migration commonly begins with the observation that states have the sovereign right to deny access to non-nationals. This statement is then qualified with the observation that there are some exceptions to this rule. Refugees and other people who may run serious risks if returned to their country, or are otherwise expelled, and in some cases people requesting admission on the basis of family reunification, should be allowed access. The sovereign right to exclude is presumed to be inherent and ‘age-old’. That impression is mistaken. Immigration control is a relatively recent phenomenon. Until late in the 19th century, political demographic conditions made population growth desirable, so immigration was welcomed. It was only with the desire to limit Chinese immigration into the US and Australia, a desire motivated by racist considerations, that immigration control and the passport regime became the new ‘normal’, and that the reference to the ‘age old’ sovereign right to control immigration began to gain force.

Recently, a number of countries have made headlines because of innovative immigration policies designed to attract investors and entrepreneurs. Spain, Chile, Canada, and others are now conceiving of immigration policies within the broader context of increasing their economic competitiveness. Many other countries already offer benefits to so-called ‘knowledge migrants’. What makes this new wave stand out is the overt effort to compete with other countries for talent and investment. One could almost forget that fear of immigrants has been the main driving force behind most immigration policies around the world. Although government officials in many countries experiencing immigration may be under pressure to implement policies that bring immigrant numbers down, immigration policies have typically also been made with an eye to economic sectors eager for access to certain workers, whether skilled or unskilled. In other words, immigration policies cater not only to those fearful of (large scale) immigration, but also to those in need of specific forms of labor.

As such, migration law is not just about putting up barriers to migrants but also about selecting among potential or prospective migrants. In the Dutch political context the term of art is kansarm (poor in prospect) or more broadly in public opinion debates kansloos (prospectless). Kansarm even made it into the 2010 coalition agreement, which also exempted so-called knowledge-migrants (kennismigranten) from various measures deemed to make immigration more difficult; the factor used to determine whether someone is a knowledge-migrant is a minimum level of income. Blunt as Dutch political discourse may be, public discourse on immigration in most immigration countries often takes such distinctions for granted. Read the rest of this entry…

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Symposium on the (Ab)normality of Migration and the Legal Position of Migrants

It is with great pleasure that the ESIL Interest Group on Migration and Refugee Law, in close cooperation with EJIL:Talk!, launches its first blog symposium, which will run on EJIL:Talk! this week. The interest group was established in April 2013, making it one of the newest members of the ESIL family. Underlying its foundation is the strong belief that human migration is a constant in the history of the world and a defining reality of our time. The interest group aims to provide a forum for discussion on the legal principles and processes governing the movement of people across borders as well as their reception in host communities. The interest group thereby hopes to build a shared knowledge base among ESIL members interested in migration and refugee law.

In its first blog symposium, the interest group focuses on the idea that, despite the normalcy of migration, states have come to treat it more and more as an abnormality in recent times. Many policies bear testimony to this development; one need only think of increasing restrictions on family reunification, measures of migration-related detention, and the introduction of civic integration tests. At the same time, countries crucially depend on migration, either upon the (un)skilled workforce it delivers, or upon the revenue it creates. Policies introduced therefore aim to limit and shape migration, so that only ‘the wanted’ embark on the journey. The person of the migrant is the object of such limiting, discouraging and selective policies.

Three members of the interest group took on this overarching topic in their contributions to the blog symposium, each in their own way. Juan Amaya-Castro kicks off the blog symposium. He argues that international migration law is “about selecting among potential or prospective migrants” and that it therefore provides a “license to discriminate” on the basis of economic worth. In the next post, Nikolaos Sitaropoulos counters this argument by saying that it “confuses differential with discriminatory treatment”. With reference to the case law of the Strasbourg Court, he shows that human rights provide a “protective layer” against discriminatory treatment. Concluding the blog symposium is Francesca Pizzutelli, who takes the potential for protection even further. She discusses “three types of limitations on state sovereignty with respect to migration”.

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Filed under: EJIL Analysis, Migration
 

Announcements: Legal Theory Workshop for Junior Scholars (Tel Aviv); Chagos Litigation Conference (Greenwich); Summer Academy of Int’l Oceans Law & Policy (Xiamen & Shanghai)

Published on May 16, 2015        Author: 

1.  Call for Papers – The 3rd TAU Workshop for Junior Scholars in Law: Theory Coming to Life, Tel-Aviv, 26-27 October 2015. Through law, theory comes into our daily lives in many ways. The workshop will explore the connection between theory and life: how different theories are applied through legal doctrines, how theory comes to life through its application and how theory influences society and our lives. For more details see the call for papers.

2.  Delegates are now able to reserve places for The Chagos Litigation: A Socio-Legal Dialogue conference, which takes place on 29th June 2015 at the University of Greenwich. The keynote speaker is Professor Philippe Sands QC (University College London), who recently represented Mauritius in its proceedings against the United Kingdom at the Permanent Court of Arbitration. The conference is free to attend and is open to academics, legal practitioners and postgraduate students. Delegates can reserve their place by emailing: lawevents {at} gre.ac(.)uk. Further information can be found here.

3.  The 2014 Summer Program of Marco Polo-Zheng He Academy of International Oceans Law and Policy, P.R. China. The South China Sea Institute of Xiamen University, and Center for Polar and Deep Ocean Development of Shanghai Jiao Tong University, announce their annual summer program – Marco Polo- ZHENG He Academy of International Oceans Law and Policy, to be held from July 5 – July 31, 2015. These centers are leading interdisciplinary research institutes in China in the area of Oceans Law and Policy. This is the 10th anniversary of the summer academy which has been attended in past by the scholars, practitioners, diplomats and students from -: Australia, Bangladesh, Belgium, China, Colombia, Hong Kong, India, Indonesia, Iran, DPR Korea, Rep. of Korea, Malaysia, Poland, Russia, Singapore, Switzerland, U.S., and others. The four week intensive summer program is divided into two sessions to be held in Chinese cities of Xiamen and Shanghai. The participants have an option to attend either or both the sessions. The program offers a unique chance to learn about the Chinese perspectives on Law of the Sea and its policies. The structure of the program is such that the class lectures are held in morning sessions and in the afternoon sessions trips to Chinese courts, law firms, and governmental agencies related to oceanic administration, museums, etc., are planned. Participants also have the option of taking tests and getting credits transferred to their own schools. Limited number of scholarships is offered to outstanding candidates upon application and subsequent review. Please find more information about Xiamen Session here and Shanghai Session here.

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Protecting Europe or Irregular Migrants? The (Mis)use of Force in the Mediterranean

Published on May 15, 2015        Author: 

On Monday 11 May Federica Mogherini, the High Representative of the European Union for Foreign Affairs and Security Policy, officially briefed the UN Security Council on the current crisis in Europe. The crisis relates to the sharp increase of fatalities of individuals trying to cross the Mediterranean in order to reach European shores. The International Organization for Migration (IOM) reports 1.800 deaths since the beginning of 2015, more than 800 of them during a single incident in April. Deaths in the Mediterranean are an annually recurring tragedy triggering public outcry in spring that dwindles down as less individuals attempt the journey due to the harsher conditions at sea during the colder months. However, 2015 is likely to become the deadliest year. According to Peter Sutherland, Special Representative of the UN Secretary-General for International Migration, these numbers represent a 20-fold increase over the same period last year. The surge in fatalities is largely attributed to the discontinuation of the search and rescue operation Mare Nostrum by the Italian navy and its replacement by the smaller scale operation Triton. The latter is coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and focuses on border control and surveillance rather than search and rescue (see also here).

To be sure, this demands action. An ‘exceptional and coordinated response’ is required to deal with the ‘unprecedented situation’, Ms Mogherini told the Security Council. On 23 April the European leaders came together for an emergency summit to devise a plan of action to respond to the tragedy. The action plan, presented to the Security Council on Monday, promises a strengthened European presence at sea, announces increased efforts to prevent irregular migration and declares the fight against human traffickers a priority. To crack down on human traffickers Europe pledges to undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers. This course of action is not without obstacles. The vessels in question, prior to their use, are mostly situated in Libya, but surely outside Europe. Quite inconspicuous at first sight, Europe’s proposal therefore requires using military force on the territory of another state and touches upon a bedrock rule of international law: the prohibition of the use of force. Read the rest of this entry…

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A New Case on Torture in Europe: Cestaro v. Italy

Published on May 13, 2015        Author: 

In its judgment of 7 April 2015, the European Court of Human Rights unanimously found that Italy had violated the prohibition of torture in Article 3 of the European Convention on Human Rights (Cestaro v. Italy, application no. 6884/11).

Apart from its confirmation of the well-established principles of the ECtHR on the prohibition of torture, the judgment is important for at least two other reasons: the in-depth evaluation of the behaviour exhibited by the authorities of the State involved in the affair and, above all, the Court’s statements concerning the structural nature of the problem of torture.

The case concerned events that occurred during the night of 21 July 2001, after the end of the G8 summit held in Genoa from 19 to 21 July 2001 in the “Diaz-Pertini” school used by some demonstrators as a night shelter (for an overview of the serious incidents caused by demonstrators, including some “black blocks”, see also Giuliani and Gaggio v. Italy, application no. 23458/02).

The “substantive” and “procedural” violations of the prohibition of torture

The violation of Article 3 was “dual” in nature: on “substantive” grounds owing to the ill-treatment of the applicant and on “procedural” grounds owing to the lack of adequate investigations and punishment for the officers who were responsible for the acts of torture.

Regarding the substantive violation, the Court found that anti-riot police units had stormed the school and, as the Italian courts and the ECtHR determined, had used force in a totally disproportionate way, with no real justification and completely ignoring the absence of any form of resistance by the applicant (then aged 62) and by the other occupants of the school (paras. 178-180 of the ECtHR judgment). The Court not only criticised the modus operandi of the police officers but also the planning of the whole operation, taking into account that the police officers had not been given any precise indication or instructions on the use of force and its limits. Read the rest of this entry…

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The Armenian “Genocide”?

Published on May 11, 2015        Author: 

Given the difficulty in proving the special intent to destroy, the charge of genocide is not one to be brought lightly.

No-one can reasonably argue with the clear statements made by German President Joachim Gauck in his speech on Armenia held on 23 April 2015: “one hundred years ago, hundreds of thousands of members of the Armenian people” became “the victims of planned and systematic murder”. It is probably also accurate to say that these acts, for which the Ottoman Empire was responsible, were perpetrated against the Armenians “because they were Armenians”. But did these acts really constitute “genocide”, as Gauck further stated, in a legal sense?

According to the Convention on Genocide adopted in 1948, we are facing a genocide when certain acts are committed against a “national, ethnical, racial or religious group” with “the intent to destroy [it] in whole or in part”. The term derives from the Greek γένος (race, tribe) and the Latin caedere (to kill). The Armenians doubtlessly constitute such an (ethnic and religious) group; however, did the Turkish perpetrators really act with the required intent to destroy? Is it even possible to designate prior conduct using a legal category that did not exist at the time said conduct occurred?

These are by no means mere juristic quibbles. The prohibition of genocide constitutes so-called peremptory international law (ius cogens). The “prevention and punishment” demanded by the Convention is thus directed not only at the perpetrating and territorial State, but at all States on our planet. They are all called to prevent genocide and – if prevention is unsuccessful – to punish it. The extraordinary degree of wrongdoing inherent in genocide – the attack on one of the abovementioned groups and the denial of its right to exist implicit in this attack – makes it the “crime of crimes”, to which particular stigma is attached. Thus it is quite understandable that a State should try to defend itself against the stigmatisation associated with genocide. Read the rest of this entry…

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