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Home Archive for category "Migration"

The ECtHR on Disembarkation of Rescued Refugees and Migrants at Greek Hotspots

Published on October 25, 2019        Author: 

The storm-tossed question of disembarking rescued refugees and migrants

The pressure of mass migration in the Mediterranean on EU sea-border states calls for other member states to contribute to humanitarian efforts at sea that respect the human rights of refugees and migrants. Article 98 of the United Nations Convention on the Law of the Sea (LOSC) codifies the maritime duty to rescue persons in distress and creates the complementary duty on coastal states to cooperate in operating search and rescue (SAR) services. Under the International Convention on Maritime Search and Rescue (SAR Convention) and the International Convention for the Safety of Life at Sea (SOLAS Convention) the relevant coastal state must ensure timely disembarkation of survivors at a ‘place of safety’ (see e.g. 1979 SAR Convention Annex ch. 3, 3.1.9). However, poor reception and detention conditions at Greek hotspots in the Aegean Sea raise the question of whether disembarkation at these EU assigned facilities will be in contravention of obligations under the European Convention on Human Rights (ECHR), in particular the Article 3 prohibition on inhuman and degrading treatment.

Following an overview of the current conditions at the Greek hotspots, this study considers a number of decisions of the European Court of Human Rights (ECtHR) exploring extraterritorial liability for disembarkation and the relevance of the contexts of maritime rescue and mass migration to the overall assessment of Article 3. Despite problems such as severe overcrowding, Convention states may be able to disembark at Greek hotspots without triggering Article 3 liability. Read the rest of this entry…

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The IOM’s New Status and its Role under the Global Compact for Safe, Orderly and Regular Migration: Pause for Thought

Published on March 29, 2019        Author: 

On 8 July 2016, the UN General Assembly adopted by consensus the Agreement Concerning the Relationship between the UN and the International Organization for Migration (IOM) (the UN-IOM Agreement). In broad terms, the objective of the UN-IOM Agreement was to ensure better coordination between UN agencies and the IOM as they fulfil their respective mandates. The Agreement created a formal relationship between the two institutions, making the IOM a UN “related organization”.

The formalisation of various interconnections between the UN and the IOM makes intuitive sense. The UN is without a generalised agency for migration, and although the UN High Commissioner for Refugees has widened its mandate somewhat, it remains primarily concerned with refugees.

Since the IOM has become a UN related organization, the UN has transferred escalating levels of responsibility for secretariat processes on the topic of migration to the IOM which would ordinarily be undertaken by the UN Secretariat or a UN specialized agency. The problem is that the organisational structure of the IOM is fundamentally different from the UN, including in terms of mandate, funding, and governance, such that this transfer of responsibility gives rise to a problematic conflict of interest. Moreover, accountability mechanisms have been lost in the ether. This blog post elaborates some of the challenges arising from the new related status of the two organizations and flags concerns about states transferring escalating levels of secretariat responsibility directly to the IOM in the field of migration. Read the rest of this entry…

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Filed under: Migration, Refugee Law
 
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Back to Square One or a New Blueprint has been Found for the ‘Refugee’ Definition?

Published on March 5, 2019        Author: 

Editor’s note: This post is part of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?

Our search for a new blueprint (or searching for a way to find a new blueprint) for the ‘refugee’ definition started already in 2016, at “The Migration Conference” in Vienna, through a comparison regarding the definition of refugee and more importantly its implementation in Brazil, Italy and Turkey. Afterwards, “The Movement of People Conference” in Hamburg in September 2016 opened the floor (at least) in academia to compare the definitions of refugee and its implementation in different parts of the world, which was not a new problem, but still had no solution at the time. Representatives from both sides of the Atlantic, i.e. the European Union (EU), USA, Latin America, United Kingdom, Germany, and Turkey came together to understand why all the implementations differ from each other, despite the fact that they are all States parties to the 1951 Geneva Convention and have derived their domestic definitions of refugee from it.

The results showed that this was due to the fact that there are different rationales behind the forced human mobility to various destination countries. For instance, while Latin America has dealt with hundreds of thousands of displaced people coming from Colombia and Northern Triangle of Central America among many other reasons also as climate refugees, EU Member States and Turkey still deal mostly with mass human mobility from Syria and the Middle East in general, because of the armed conflicts happening there. Read the rest of this entry…

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Governance and the UN Global Compact on Migration: Just another Soft Law Cooperation Framework or a New Legal Regime governing International Migration?

Published on March 4, 2019        Author:  and

Editor’s note: This post is part of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?

Does the UN Global Compact for Safe, Orderly and Regular Migration (GCM) fulfill the criteria of a legal regime for international migration or is it just another soft law cooperation framework amidst many? If the GCM is merely a cooperation framework, then what is its contribution to international migration law (IML)? Is it limited to institutional questions, including the quality of follow-up, monitoring and review? What does it mean to ascribe the GCM a “governance capacity”? Does “governance”, as a counter concept to government, feature at the same time as an antidote to anarchy, so that the GCM could be fashioned as the complement to the “missing regime” of IML?

To resolve the ambiguity over the GCM’s governance ambition means for one to reply to the question posed by Aleinikoff in 2007, i.e. to what extent the GCM provides for the long-sought after “architecture” to govern the “substance” of IML. To respond to the challenge secondly means to uncover to what extent the GCM has overcome the “anarchy” underlying the fragmented state of IML, also called the “piecemeal approach” (Opeskin et al. 2012). This approach allowed States in the Global North to keep national sovereignty over territory and borders untouched by design, but also for few exceptions of multilateral cooperation on service providers in the General Agreement on Trade in Services (GATS) and regional schemes on free movement of persons. However, the “management” of population flows from sending countries has led to uncertain outcomes for the protection of migrants’ rights, while rendering their entitlements an often-neglected legal category in international law.

In this post, we will provide a first appraisal of whether the GCM has governance potential – a capacity which may move it beyond the mere “international cooperation framework”, designed by GCM drafters. Read the rest of this entry…

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“We are tidying up”: The Global Compact on Migration and its Interaction with International Human Rights Law

Published on March 1, 2019        Author: 

Editor’s note: This post is part of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?

“We are not talking about anything new […] Rather we are tidying up” – said El Salvador’s Representative before the vote at the United Nations General Assembly (UNGA) on the adoption of the Global Compact on Migration (GCM), also known as the Marrakech Compact (GA/12113). Other similar declarations joined the chorus of States in three clear directions: 1) the Compact is not legally binding; 2) the Compact does not create any new international obligations in the form of new customary rules; and 3) the Compact reaffirms States’ sovereignty.

Be that as it may, one cannot but agree with Maria Gavouneli that the GCM, at this stage, will not have a huge impact on the existing legal framework applicable to the mass movements of individuals. However, it is possible to move the critique one step forward looking at some contents of the GCM that might have some normative effects on the sources of international law governing the management of migration.

The GCM and its Legal Nature

As Anne Peters put it on this blog, the GCM is part of the borderless category of international soft law instruments, as States’ will clearly excludes the legal bindingness of its objectives and actions. However, it is no mystery that soft law instruments might have, under certain conditions, normative effects. Read the rest of this entry…

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Legislating by Compacts? – The Legal Nature of the Global Compacts

Published on February 28, 2019        Author: 

Editor’s note: This post is part of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?

It is not usual to have UN documents splashed across the first pages of the world, exciting animadversion among politicians not known for their respect or knowledge of international law and heated exchanges on the social media; governments (well: one!) collapsing over them; or even having actors read through each word of them on national television. The Global Compact for Refugees (GCR) and the Global Compact for Safe, Orderly and Regular Migration (GCM) were stars long before they were formally approved by the 73rd UN General Assembly. With the final text decided a month earlier, the GCR was approved on 17 December 2018 as part of an omnibus resolution on the work of the Office of the UN High Commissioner for Refugees (UNHCR) and with an overwhelming majority (181/2/3): only Hungary and the US voted against, with the Dominican Republic, Eritrea and Libya abstaining. After a highly publicized and politicized gathering in Marrakesh (10-11 December 2018), the GCM was approved by the General Assembly on 19 December 2018 with a less impressive majority (152/5/12): The Czech Republic, Israel and Poland joined the nay-sayers and a dozen others, among which five Member States of the European Union (EU) and Switzerland abstained, the last embarrassingly enough being with Mexico one of the co-convenors of the intergovernmental process leading to its adoption. Both Global Compacts are the product of a political commitment, reflected in the New York Declaration on Refugees and Migrants adopted by the UN General Assembly on 19 September 2016, and they constitute the latest acts in a process of rethinking the norms and procedures governing the management of human mobility. Both Compacts proclaim themselves as non-legally binding, the result of a wide cooperative effort among governments and between governments and civil society. The discussion on their legal nature could surely have stopped here. And yet it goes on – even in this blog. Read the rest of this entry…

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Introduction to the Symposium on ‘the UN Global Compacts on Migration and Refugees: The Twin Peaks?’

Published on February 27, 2019        Author: , , and

Editor’s note: EJIL:Talk! is happy to announce that starting today, the blog will host a symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?. In their contribution to this series, five members of the ESIL Interest Group on Migration and Refugee Law will engage with overarching and cross-cutting topics in the context of the recently adopted Global Compact on Safe, Orderly and Regular Migration and Global Compact on Refugees.

We thank the authors for their contributions, and for the interesting discussions this symposium is sure to generate!

In this blog symposium, the ESIL Interest Group on Migration and Refugee Law focuses on the recently adopted two United Nations (UN) instruments aiming at reinforcing the (legal) structures of global governance on migration and asylum: the Global Compact on Safe, Orderly and Regular Migration (GCM) as well as the Global Compact on Refugees (GCR). Human migration has been a constant in the history of the world and a defining reality of our time. International migration has been coined as a global “megatrend” by the International Organization for Migration. In this context came the Global Compacts, which are the outcomes of a two-year negotiation process in different formats and settings. After several rounds of inclusive preparatory talks within the UN in New York, the Marrakech Intergovernmental Conference, held on 10-11 December 2018, formally adopted the Global Compact on Migration, which was later endorsed by the UN General Assembly (UNGA) on 19 December 2018 (with 152 States voting for it). The Global Compact on Refugees has been prepared in a less transparent way by the UN Refugee Agency (UNHCR), then was presented to the UN General Assembly in September 2018, and was subsequently also endorsed by the UNGA in December last year (181 countries voted in favour of it). Read the rest of this entry…

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How Trump’s Migration Policy Erodes National and International Standards of Protection for Migrants and Asylum Seekers

Published on November 28, 2018        Author: 

Early this month, 5,600 US soldiers were deployed to the southern border as a response to an approaching migrant caravan consisting of several thousand Central Americans. U.S. President Donald Trump called the advancing group in official statements a foreign “invasion” that warrants deploying up to 15,000 army members to support the border patrol. He further publicly warned that “nobody is coming in” and once more clarified his stance on migration stating that “immigration is a very, very big and very dangerous, a really dangerous topic”. The latest footage of U.S. officers firing tear gas at migrants of the caravan-including at children- that tried to enter the country, is the disturbing result of Trump’s sketched horror scenario of a violent invasion of Central Americans.

This strict stance on migration is just the most recent example, the tip of an iceberg of the Trump administration’s aim to establish, step by step, a migration policy that erodes national and international standards of protection.

The comprehensive new migration strategy seemingly builds on a set of immediate, as well as long-term measures aiming at those who attempt to enter the United States as well as at those who are already within the state’s territory. For example, last month a new immigration policy was introduced that aimed at restricting immigrants from using public benefits, or else they may be illegible for permanent residency later on. This is just one of numerous examples of how the Trump administration severely restricted or just completely abandoned given standards such as the abolishment of the Deferred Action for Childhood Arrivals program, the prevention of dreamers from living and working in the U.S.A., as well as the abrogation of the temporary protective status programs. These turnovers of existing standards affected more than two million regularly residing migrants in the U.S.A. and fostered sentiments of fear, nationalism and division.

Read the rest of this entry…

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The Global Compact for Migration: to sign or not to sign?

Published on November 21, 2018        Author: 

The Global Compact for Safe, Orderly and Regular Migration (final draft of 13 July 2018) is scheduled for adoption at an intergovernmental conference in Marrakesh in December 2018. But in the run-up to this conference, several states, beginning with the United States already in 2017, now followed by Austria, Hungary, the Czech Republic, and others, have announced that they will  not sign the text. Will refusal to sign be relevant in terms of international law? What is the juridical quality of the Compact, which legal consequences does it have, and which normative “ripples” might it deploy in the future? The controversy over the Compact sheds light on the legitimacy of international law-making processes and on the precarious normative power of international law.

A Brief Glance at the Contents

The Compact consists of four parts. Following the preamble, the first part contains, “Vision and Guiding Principles”. The second part, “Objectives and Commitments” contains 23 objectives, proceeded by a part on “Implementation” and the final section “Follow-up and Review”. The Compact purports to set out “a common understanding, shared responsibilities and unity of purpose regarding migration” (para. 9). The purpose is mainly to secure that migration “works for all” (para. 13).

The Compact’s “guiding principles” are, inter alia, people-centeredness, international cooperation, national sovereignty, rule of law and due process, and sustainable development (para. 15). These are well-established and to a large extent also legally entrenched principles. The 23 “objectives” are partly generally recognised such as saving lives (objective 8), respond to smuggling (objective 9), or eradicate trafficking (objective 10). Some mainly correspond to interests of states of origin (such as promoting transfer of remittances, objective 20), others basically satisfy interests of receiving states (such as facilitating return and readmission (objective 21). In substance, the Compact partly repeats international law as it stands or refers to existing instruments (see notably preamble para. 2), partly contains platitudes, and partly contains novel ideas. Read the rest of this entry…

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Irregular migration after the Aquarius incident: moving beyond the law. A reflection on Fink and Gombeer

Published on July 5, 2018        Author:  and

Introduction

Last month, EJIL: Talk! published a piece by Fink and Gombeer on the legality of Italy and Malta’s recent failure to provide a safe haven to a rescue vessel Aquarius. Essentially, the authors concluded that the refusal by these states to open their harbours is ‘regrettable, at the very least, but not necessarily unlawful.’ On their view, for the reasons elaborated in their analysis, neither the law of the sea nor human rights law have been ‘evidently’ breached. It follows that these two branches of law, in the context of ‘Aquarius-like incidents’, provide rather no avail to asylum seekers; in other words: law has its own limits.

The fate of Aquarius and her passengers is yet another example of an endless list of scenarios where people from predominantly war-torn, repressed or impoverished territories often attempt to irregularly cross international borders; a large number of them seeking help, safety and a better life. This and similar events illustrate not only that the handling of the arrival of asylum seekers, especially in Europe, has fostered multiple crises, but also that irregular migration will not cease to occur. Hence, the need for a long-term, responsible and visionary solution is evident.

Fink and Gombeer reflect de lege lata, and their diagnosis is valid and all the more relevant nowadays, de lege ferenda, as the governance and management of migration is largely being reformed, on multiple levels, precisely to address contemporary challenges and expectations. Among others, the European Union (EU) attempts to reform its migration and asylum policy, predominantly the so-called Dublin system, and the United Nations (UN) is expected to adopt its Global Compact on Migration by late 2018.

Having read Fink and Gombeer’s analysis, we cannot help but reflect on their main conclusion in light of these reforms. These authors basically identify a ‘gap’: the law has its own limits. We, in turn, reflect further on filling the said ‘gap’. We ask what can be done to overcome the limitations of law in order to ensure more holistic protection of asylum seekers?

Read the rest of this entry…

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