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‘Let them drown’: rescuing migrants at sea and the non-refoulement obligation as a case study of international law’s relationship to ‘crisis’: Part II

Published on February 27, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

In the first half of this two-part post, I reviewed the argument to the effect that sea-rescues of migrants, allied to the extraterritorial application of the non-refoulement obligation in human rights law, incentivize dangerous smuggler-enabled journeys.  In this second half of the post, I will appraise the merits of this argument.

Why do People make Dangerous Crossings?

People only take dangerous routes because regular routes are closed off to them, through migration law-enabled non-entrée restrictions backed up by robust carrier sanctions in general, and an absence of will, on the part of many states who could potentially provide protection, to realize this potential through organized resettlement, in particular.

Some have argued—as I did in a presentation at the American Society of International Law Annual Meeting in 2016—that a key causal factor in creating the conditions for smuggler-enabled perilous sea crossings is the non-entrée measures of those states whom individuals wish to obtain protection from.

These measures—strict immigration controls, including border checks, visa restrictions and the posting of extraterritorial immigration officials—are  rooted in the general entitlement of states in international law to control their borders, and backed up specific legal regimes whereby states impose hefty fines on carriers such as airlines if the carriers transport individuals into their territories who do not have a right to enter there. (For a discussion of the ethics of this, see e.g. Linda Bosniak’s ‘Wrongs, Rights and Regularization’).

It is the existence of these legally-enabled arrangements that necessitate the dangerous and illegal journeys, involving smugglers, which place people in danger at sea (see also Itamar Mann and Umut Özsu here).  (For the argument that, because of this, in some cases the smuggling of refugees is justified, see this by Jim Hathaway.)  Here, then, we see how one area of international law can be seen as part of the cause of the ‘crisis’. Read the rest of this entry…

 
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‘Let them drown’: Rescuing migrants at sea and the non-refoulement obligation as a case study of international law’s relationship to ‘crisis’: Part I

Published on February 25, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

“Approaching crises with criticism reminds us that crises are produced: they are negotiable narratives that can mask as well as reveal, a recognition that should be central when we respond to crises of human rights within international law.” Benjamin Authers and Hilary Charlesworth (‘The Crisis and the Quotidian’, p. 38)

The situation of the movement of certain migrants to and within Europe since 2015 has been described as a ‘crisis’.  The ‘crisis’ designation has been used because of the numbers involved—commonly depicted as the largest movement of people in Europe since the Second World War—and the consequent challenge of how the role of European states in assisting such people should be determined in a fair and equitable manner, in the face of sharp inequities in how things played out in practice.   A typical response from international lawyers has been to implore states to implement fully their relevant legal obligations, including in international human rights law.  Such a position is reflected, for example, in the open letter, signed by over 900 international lawyers, coming out of the 2015 ESIL conference in Oslo [I should declare I was responsible, with Başak Çali, Cathryn Costello, and Guy Goodwin Gill, in drafting and organizing the signatures for this letter].At the same time, others have drawn the opposite conclusion about the law, suggesting that legal rules were more part of the problem than the solution.  For example, in 2015 Germany partly suspended the operation of the Schengen border-free rules of EU law, on the basis that, absent a co-ordinated and equitable European approach to the situation, the cross-border free movement such rules permitted was objectionable (see here and here).

These responses epitomize the dual way international law can be and is invoked in relation to crisis: as part of the solution and as part of the problem.  In two posts I would like to explore this duality by considering the migration ‘crisis’ and the debates around one particular policy prescription relating to it: the ‘rescue’ of migrants at peril at sea performed by states acting extraterritorially, in the context of the operation of the non-refoulement obligation in human rights law. Read the rest of this entry…