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International Migration Law: License to Discriminate?

Published on May 19, 2015        Author: 

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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…

 

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


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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”.

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: 

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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.

Filed under: Announcements and Events
 
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Protecting Europe or Irregular Migrants? The (Mis)use of Force in the Mediterranean

Published on May 15, 2015        Author: 

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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…

 

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

Published on May 13, 2015        Author: 

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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…

 

The Armenian “Genocide”?

Published on May 11, 2015        Author: 

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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…

 

Announcements: Call for Papers and Panels, ICON-S Conference (NY); BIICL Seminar on Interpretation in International Law; ILA British Branch (Spring Conference); Doctoral Grants (Brussels); New Additions to UN AV Library; CfP on Ecology of Governance (NY); CfP Irish Journal of European Law

Published on May 9, 2015        Author: 

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1)  ICON-S 2015 Conference in New York City, July 1-3, 2015—Call for Papers & Panels—Public Law in an Uncertain World. I-CONnect is pleased to announce the Call for Papers & Panels below for the 2015 Conference of ICON-S: the International Society of Public Law. ICON-S, a new international learned society now entering its second year, is guided by a Pro Term Executive Committee featuring many of the world’s leading scholars in the field of public law. This edition of the ICON-S Conference will be held in New York City, on July 1-3, 2015, at the New York University School of Law. The conference will feature plenary and concurrent panels. Scholars–both senior and junior, including graduate students, as well as practitioners–are invited to submit papers and/or fully-formed panels for the conference. The full call for papers and panels is here.

2) On 14 May 2015, the British Institute of International and Comparative Law (BIICL) will host a seminar on ‘Interpretation in International Law: The Object, the Players, the Rules, and the Strategies’. This is the next event in the Temple Garden Chambers Seminar Series in International Adjudication. Interpretation in international law is usually referred to as an art or a science. These perspectives imply that interpretation is a static exercise, tied to the rules in the Vienna Convention on the Law of Treaties (VCLT). However, in today’s international legal reality, characterised by the proliferation of international judicial bodies and a variety of participants before them, such understandings have become too narrow. Although the VCLT remains the primary legal source, there is no doubt that interpretation in international law has become a complex and purposeful process, which involves numerous players (litigators, judges, academics, NGO counsels, legal advisers) who devise various strategies to bring a case to a persuasive conclusion. This event will explore the dynamic understanding of interpretation of international law before international and English courts. Speakers will include: Professor Andrea Bianchi (Graduate Institute of International and Development Studies, Geneva); Professor David D. Caron (The Dickson Poon School of Law, King’s College London); Shaheed Fatima (Blackstone Chambers) and Professor Larissa van den Herik (Leiden Law School). The event will be chaired by Rodney Dixon QC (Temple Garden Chambers).  Find out more and book online on the BIICL website. Download the Event Flyer here .

3) The University of Essex is hosting the Spring Conference of the International Law Association (British Branch) on 29th – 30th May 2015, on the theme of ‘International Law as a Mechanism for Justice’. The keynote speakers will be: Howard Morrison CBE QC, Judge of the International Criminal Tribunal for the former Yugoslavia and Professor Francesco Francioni, European University Institute. The provisional programme and information on registration and accommodation are available at here. Please ensure that you register by 14th May.  Should you have any queries about the conference, please feel free to get in touch at the following address: ilaconference2015 {at} essex.ac(.)uk.

4) Université libre de Bruxelles – Faculty of Law, ARC “Strategic Litigation: Using Courts to Achieve Social Change? Fighting Poverty and Impunity in Judicial Arenas.” Call for applications for two doctoral grants in law (Deadline: 15 June 2015). More details available here.

5) Announcements: New additions to the UN Audiovisual Library of International LawThe Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law  website, which provides high quality international law training and research materials to an unlimited number of recipients around the world free of charge. The latest lectures were given by Professor Guy S. Goodwin-Gill on “Migrants’ Rights”, Professor Bing Bing Jia on “The Regime of International Straits: Current State of the Law” and by Professor Lea Brilmayer on “The Problem of Secession in International Law”.

6)  Call for Papers, Indicators and the Ecology of Governance. On July 6-7, 2015, the Institute for International Law and Justice (IILJ) at New York University School of Law will convene a conference on indicators and the ecology of governance. This conference has three objectives: to take stock and analyze key ideas from very recent work in the field; to bring together interested scholars and celebrate the launch of several recent books on indicators in global governance; and above all to explore promising directions in current and future research, with a particular focus on the dynamics or ecology of governance in which indicators are one of several competing technologies. More details are available here.

7) Irish Journal of European Law, Call for Papers: Reminder. The Irish Society for European Law recently re-launched the Irish Journal of European Law as an e-journal. The Journal, which has been published since 1992, is a leading international journal on European law edited by Irish scholars and practitioners. The 2014 volume is now available on the Society’s website. The Journal – which is blind peer-reviewed – is now issuing a call for original papers for its 2015 volume. The call is available here. Submissions are to be sent to ijel.submissions {at} gmail(.)com by Friday 15th May 2015.

Filed under: Announcements and Events
 
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UN Working Group on Arbitrary Detention Adopts Principles and Guidelines on Habeas Corpus

Published on May 5, 2015        Author: 

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A couple of days ago the UN Working Group on Arbitrary Detention adopted an important document, the “Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court,” and submitted the text to the Human Rights Council. The document was developed by the WG at the Council’s request. The project is meant to guide Member States on principles on the judicial review of the lawfulness of detention. The drafting process was completed after extensive consultations with states and other stakeholders. A press release is available here, the full text of the Guidelines and Principle is here, while the submissions by interested states and other actors are here.

This is a rich document dealing with many different issues. Perhaps most interesting – and certainly bound to be the most controversial – are the WG’s conclusions with regard to deprivation of liberty in armed conflict. The WG takes a very strong position regarding the right of habeas corpus in wartime, which it sees as non-derogable in common to a number of other human rights bodies, finding for example that in international armed conflict even prisoners of war have the right of access to a judicial mechanism that would establish the lawfulness of their status-based preventive detention. The WG also takes the view that IHL does not authorize internment in NIACs, and that internment would only be lawful if it is prescribed by domestic law, after a derogation in a public emergency. Some of the most important paragraphs are reproduced below the fold.

Read the rest of this entry…

 

Announcements: Event on Corporate Responsibility for Int’l Crimes (London); Conference on Urgency and Human Rights (Nijmegen, NL); CfP on Int’l Disaster Law in Asia-Pacific (Sydney)

Published on May 1, 2015        Author: 

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1.  The International Law Programme at Chatham House and Doughty Street are hosting an event on 19 May 2015  – ‘Corporate Responsibility for International Crimes?’. The meeting will discuss the question of whether corporations can be held accountable for international crimes. The speakers will address the advantages to, and obstacles in the way of, prosecuting corporations for their responsibility for international crimes in domestic courts, as well as the prospect of prosecuting corporations at the International Criminal Court. Please note this event will be followed by a drinks reception. The event will take place from 17:30 to 19:00 at Doughty Street Chambers, London. Attendance is free but prior registration is required. For further details and to register see here.

2. Conference Urgency and Human Rights 29 & 30 May 2015. Nijmegen, the Netherlands. Addressing urgent human rights situations pending litigation. Could the tool of interim measures be used to order states to halt cooperation with drone attack operations, protect persons against death threats, or ensure access to basic facilities for undocumented persons? Among others, the conference will feature Dinah Shelton (the expert on remedies in international law and on regional human right protection), Sacha Prechal (EU judge), Philip Leach (director of EHRAC), Cees Flinterman (former member UN Human Rights Committee and CEDAW), Theo van Boven (former UN Rapporteur against Torture and Rapporteur on the Principles and Guidelines on the Right to  Remedy and Reparation). Conference fee: only €20 euro a day. For more information and registration see: Conference Urgency and Human Rights.

3.  Proposals for papers are welcomed for a workshop on International Disaster Law in the Asia-Pacific region, to be held at UNSW, Sydney on Friday 24 July 2015. The deadline for proposals is 25 May 2015. Further details are available here.

4. The ICRC-British Red Cross customary IHL research team announces a job opening: Customary IHL: Research Fellow – International Humanitarian Law. In the framework of the co-operation between the ICRC and the British Red Cross to update the practice collection of the ICRC’s study on customary international humanitarian law (IHL), the ICRC and the British Red Cross seek to recruit a research fellow to join the customary IHL research team in Cambridge/UK. For further information, please see  here and here. To apply and for details about the position, please visit here and, under “UK Jobs”, search for the role title “Research Fellow – International Humanitarian Law”. Closing date for applications is Monday, 18 May 2015.

 

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