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Up the Creek without the Law: What is at Stake in Refugee Responsibility Sharing?

Published on November 2, 2015        Author: 

Refugee law has an infamous built-in dichotomy. Its powerful non-refoulement principle means refugees shall not be returned to their home countries or to places where they would be at risk of being returned home. Yet, refugee law does not oblige securing safe direct access from a refugee’s country of origin or transit to a state of asylum. The fragmented response to the large-scale displacement from Syria violently demonstrates that dissonance. Like in any refugee crisis, neighboring regions host the bulk of IDPs and refugees from Syria, which has painful consequences for the quality of protection offered.

How multilateral efforts – beyond the EU’s response to the current crisis – will fill the relative normative vacuum on access to asylum is possibly the single most important issue for the future of refugee protection. In this post, I want to share some thoughts on some of the parameters that are at stake or will determine the feasibility of a multilateral responsibility sharing response.

First, refugees are not passive players in the systemic conditions and the personal circumstances they face, but have – if limited, given the lack of migration channels – leeway to make choices. If they can, they will move to places where they find effective protection, including social and economic integration. Ignoring agency will make any responsibility sharing mechanism unpopular to those whom it is meant to benefit.

Second, while refugee law does not include strong norms on responsibility, policy initiatives to foster responsibility should not trade away compliance with refugee law. The refugee law regime – based on the 1951 Convention relating to the Status of Refugees – has proved remarkably stable over the past sixty years, not least because it subtly balances human rights obligations and other state interest. It has also seen considerable evolution by human rights law as interpretative guidance, and has been complemented by non-return obligations under human rights law. Read the rest of this entry…

Filed under: EJIL Analysis, Refugee Law
 
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The Use of Force Against People Smugglers: Conflicts with Refugee Law and Human Rights Law

Published on June 22, 2015        Author: 

On 18 May, EU ministers agreed on a military operation (EU NAVFOR Med) that could comprise, in its final phase, the boarding, seizure and destruction of suspected migrant smuggling vessels, subject to approval by the UN Security Council. Negotiations before the Security Council appear to have halted until both the Libyan government in Tobruk and the ruling authorities in Tripoli give consent. Meanwhile, a diplomatic source involved in the EU internal talks on the matter stated that a military operation could be decided on 22 June at the Foreign Affairs Council in Luxembourg.

In earlier EJIL talk! posts, Melanie Fink and Sergo Mananashvili argued that a Security Council Resolution would be questionable under the law of the use of force. But a resolution would also raise issues of compliance with refugee and human rights law and thus would produce a norm conflict between a Security Council Resolution and other international law.

The Likely Need to Have Forces Close to the Libyan Shore

Let’s look at the most likely scenarios around the use of force, were the EU move forward and the UN Security Council to approve of the plans.

An earlier EU strategy paper had foreseen ‘intelligence, surveillance and reconnaissance; boarding teams; patrol units (air and maritime); amphibious assets; destruction air, land and sea, including special forces units.’ Since then, the EU’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, has pointed out that the operation would not include ‘boots on the ground’ in Libya. At the same time, it is clear that EU diplomats seek more than approval to destroy vessels intercepted at sea, and from which all migrants have disembarked. The EU seeks a UN resolution for destroy smuggling vessels before they have departed.

Identifying smuggling vessels before they have departed will be challenging without deploying people on the ground in Libya. Smuggling vessels can clearly be identified as such only at or shortly before the time they are being used for smuggling. Read the rest of this entry…

 
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“You Can’t Change the Meeting Place” – Khodorkovsky, Bad Faith, and the European Court of Human Rights

Published on January 6, 2014        Author: 

Julian LehmannJulian Lehmann is a research associate at the Global Public Policy Institute in Berlin, Germany and a SJD candidate at Dresden University of Technology.

“Ten Years a Prisoner”

Mikhail Khodorkovsky (pictured right, credit), the former Russian business magnate and opposition sponsor was released from prison under a presidential pardon in late December – just two months after he had  commemorated the ten year anniversary of hisMikhail_Khodorkovsky_2013-12-22_3 imprisonment. The images of the tycoon fallen from favor into the dock for many had became symbols for political interference with courts.  Regardless of whether one clings to such symbolism, judicial independence in Russia still leaves much to be desired, not least according to the UN Special Rapporteur on the independence of judges and lawyers.

Khodorkovsky and his associate Platon Lebedev are the most prominent alleged victims of political imprisonment. As many will recall, Khodorkovsky was arrested in 2003 and convicted in 2005 for tax evasion in the turbulent 1990s. Then, he sold produce of his oil and resource company Yukos to alleged sham Russian firms registered in low tax zones. He was put on trial again in 2010. Vladimir Putin, pending Khodorkovsky’s appeal, bragged in a TV interview that ‘a thief must sit in jail’. He alluded to a phrase from the popular Soviet TV mini-series ‘You Can’t Change the Meeting Place’ – a detective story featuring the dissident artistic icon Vladimir Vysotsky. The title takes up the series’ final, in which Vysotsky suggests that he and his fellow policemen have no choice but to go for a plan that puts their abducted colleague at risk.

Putin omitted the second half of the film’s citation. Vysotsky, the old-school hot rock, repeatedly clashes with his fastidious partner over the choice of means for policing. Not shying away from breaking the law, Vysotsky states that ‘A thief must be in jail – and people are not interested in how I get them there.’

Putin’s candidness about his view on Khodorkovsky hasn’t gone unnoticed. Read the rest of this entry…

 
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