magnify
Home Archive for category "Migration"

Back to Old Tricks? Italian Responsibility for Returning People to Libya

Published on June 6, 2017        Author: 

On 10/11 May 2017 various news outlets reported a maritime operation by the Libyan authorities, in coordination with the Italian Search and Rescue Authority, in which 500 individuals were intercepted in international waters and returned to Libya. This operation amounted to refoulment in breach of customary international law and several treaties (including the Geneva Refugee Convention and the European Convention on Human Rights), and an internationally wrongful act is one for which Italy bears international legal responsibility.

According to reports, the migrant and refugee boat called the Italian Maritime Rescue Coordination Centre (MRCCC) whilst it was still in Libyan territorial waters. MRCC contacted both the Libyan coastguard and an NGO vessel (Sea Watch-2) with the latter sighting the boat after it had left Libyan waters and was in international waters. During preparations for the rescue, the NGO boat was informed by the Italian authorities that the Libyan coastguard boat which was approaching had “on scene command” of the rescue operation. Attempts by the NGO vessel to contact the Libyan authorities were not picked up. The Coastguard proceeded instead to cut the way of the Sea Watch 2 at high speed and chase its rescue boat. It then stopped the refugees and migrant boat. Reports indicate that the Libyan coastguard captain threatened the refugees and migrants with a gun and then proceeded to take over the migrant boat. Read the rest of this entry…

Print Friendly
 

Taking the ‘Union’ out of ‘EU’: The EU-Turkey Statement on the Syrian Refugee Crisis as an Agreement Between States under International Law

Published on April 20, 2017        Author: 

Almost one year after its conclusion, the Court of Justice of the European Union (CJEU) has eventually made clear the real nature of the ‘so-called’ EU-Turkey Statement. The ‘Statement’ is a document that was primarily aimed at preventing irregular migrants reaching the EU from Turkey, and established a resettlement mechanism based on the transfer of one vulnerable Syrian from Turkey to the EU “for every irregular Syrian being returned to Turkey from Greek islands”. The case was brought by three asylum seekers who arrived in Greece by boat and risked being returned to Turkey pursuant to this Statement if their request for asylum was rejected. They asked the Court to annul what they identified as an “agreement concluded between the European Council and the Republic of Turkey” (see CJEU, Orders of 28 February 2017, Cases NF v European Council, T‑192/16; NG v European Council, T-193/16; NM v European Council, T-257/16).

According to the CJEU, the ‘EU-Turkey’ Statement is a non-EU agreement. In fact, it is a European agreement between EU Member States and Turkey, which was made at the margin of the European Council’s meeting held in March 2016. As such, according to Article 263 of the Treaty on the Functioning of the European Union (TFEU), the CJEU lacks jurisdiction to review its legitimacy, especially in relation to the provisions set out for the conclusion of international treaties by the EU (similarly, CJEU, 30 June 1993, Parliament v Council and Commission, C-181/91 and C-248/91.).

This expected (?) conclusion (see S. Peers here) raises more questions than it answers. After a brief analysis of the CJEU’s order at least two points deserve attention. Firstly, were all aspects of the Statement duly considered in order to exclude the possibility that this is an agreement of the EU with a third country? Secondly, in light of customary international law of treaties, is a different reading of  the EU’s involvement possible? Read the rest of this entry…

Print Friendly
 

Methods to Incorporate Human Rights Law into Disaster Prevention and Reduction Strategies

Published on February 28, 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’.

Earthquakes, floods, hurricanes, volcanic eruptions and landslides are all natural phenomena that have occurred throughout the history of humankind. This blog reflects on the ensuing crisis in human life, infrastructure, economic stability and ongoing development projects when such events occur. The limited capacity of a State to prepare, respond and rebuild afterwards is what will often turn these events into ‘disasters’ and crisis situations. Thus, disaster is the consequence of a combination of factors: disaster risk arises when hazards (such as earthquakes, floods, hurricanes, volcanic eruptions and landslides) interact with pre-existing physical, social, economic and environmental vulnerabilities. The ‘elements at risk’ may, therefore, refer to exposure of people, buildings, businesses, and infrastructure. This post shows how and why human rights law is an invaluable asset to States and organisations hoping to reduce the risk of disasters. Critically, it analyses methods available to incorporate human rights law into disaster prevention and reduction strategies.

International Disaster Risk Reduction (DRR) Frameworks

Over the past two decades, as the international disaster management agenda has been developed and refined, firstly in Yokohama (Yokohama Strategy and Plan of Action for a Safer World: guidelines for natural disaster prevention, preparedness and mitigation 1994) and then in Hyogo (Hyogo Framework for Action 2005-2015: Building the Resilience of Nations and Communities to Disasters), the human rights agenda has also undergone a significant shift. Human rights principles are firmly entrenched in the international legal order through the proliferation of human rights courts and institutions. Read the rest of this entry…

Print Friendly
 
 Share on Facebook Share on Twitter
Comments Off on Methods to Incorporate Human Rights Law into Disaster Prevention and Reduction Strategies

‘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…

Print Friendly
 
 Share on Facebook Share on Twitter
Comments Off on ‘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

‘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…

Print Friendly
 

The Role of Human Rights Law in Constructing Migration Emergencies

Published on February 24, 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’.

Migration emergencies are ubiquitous in today’s world.  News media report daily on the situation of Syrian migrants crossing the Mediterranean in rubber dinghies, of Central American mothers and their children traversing inhospitable deserts to reach the southern U.S. border, or of controversial efforts to keep at bay Afghans and Iraqis aiming for Australian shores in overcrowded ships.  The story line often runs as follows: this dramatic and unforeseen increase in migration is a crisis that risks overwhelming the receiving nations’ ability to process and absorb these migrants.  Media analysts and politicians suggest multiple factors provoking these crises.  Some foreground the life-threatening dangers that migrants face on their journeys.  Many more stoke fears about the national security and cultural threats that mass influxes present to migrant-receiving nations.  But there is very little critical analysis of the underlying assumption that these migrant flows are unexpected and unpredictable.  Even less is said about the role of international law, and human rights law in particular, in constructing these emergencies.

Migration “emergencies” are, contrary to their moniker, foreseeable outcomes of the contemporary international legal framework.  Human rights law relating to migration provides the backbone of this problematic legal structure.  Mass influx movements of migrants are predictable reactions to violent conflict and structural violence as well as to low-wage labor needs in destination states.  In situations of violence, the flow of migrants often increases steadily, offering sufficient lead time for destination states to prepare for these flows, but is instead initially ignored and then transformed into a “crisis” that grabs the public eye. Read the rest of this entry…

Print Friendly
 
 Share on Facebook Share on Twitter
Comments Off on The Role of Human Rights Law in Constructing Migration Emergencies

Introduction to ESIL Symposium on ‘International Human Rights Law in Times of Crisis’

Published on February 23, 2017        Author: 

The theme of the 2016 ESIL Annual Conference in Riga was ‘How International Law Works in Times of Crisis’. In line with our practice for the last two annual conferences, the ESIL Interest Group on International Human Rights Law applied the conference theme to International Human Rights Law (IHRL) by hosting an afternoon seminar on ‘The Place of International Human Rights Law in Times of Crisis’ with papers by Elif Askin, Gaëtan Cliquennois, Jaya Ramji-NogalesChristy Shucksmith, Charlotte Steinorth and Ralph Wilde.

In this blog symposium, the six authors examine the place of IHRL in four crises: austerity, disaster, the migration ‘crisis’; and weapons transfer in conflict. While apparently distinct, the blog posts point to challenges in neatly categorising and distinguishing between types of crisis, the ways in which forms of crisis can overlap and bleed into each other and the strategic use of crisis discourse. Indeed, a question raised by Ramji-Nogales is what is meant by ‘crisis’ in the first place. Along with Wilde, she argues that the migration ‘crisis’ should not be understood as a ‘crisis’ as that suggests that the situation was unpredictable and unexpected. Rather, she argues that it was foreseeable and that the language of crisis obscures that fact. While dangerous sea crossings in the Mediterranean have been on-going for some time, the framing of these crossings as a crisis only occurred in Autumn 2015 in Europe.

The posts raise fundamental questions about the positioning and relevance of IHRL in times of crisis. The authors position IHRL on a spectrum from absence or resistance to any role for IHRL in crisis; to a role in mitigating crisis; to becoming part of the problem. The posts further point to heightened interest in IHRL in times of crisis and the chance of development of IHRL as a result. In this introductory post, we explore some of these cross-cutting themes further.  Read the rest of this entry…

Print Friendly
 

Leap Ahead or More of the Same? The European Commission’s Proposed Revisions to the Dublin System

Published on May 20, 2016        Author: 

On 4 May, 2016, the European Commission published a series of proposals in the field of Home Affairs, including proposed revisions to the contentious Dublin Regulation. This package of proposals signals the start of a process of revising the Common European Asylum System (CEAS), the recast instruments which came into force over the last two years. The need for such an upgrade is evidenced by the EU Member States’ disappointing response to the so-called ‘migration crisis’, but is also necessitated by fundamental flaws in the legal output stemming from the political compromise that led to the second version of the CEAS. Analysis of the EC’s proposed revisions reveal, however, that they would do little to remedy these flaws and are unlikely to gain support, not least due to a lack of solidarity among Member States.

Before evaluating the proposal, it ought to be noted that, of all the regional developments in the field of forced migration, the EU has by far the greatest law making competence (when compared to other regional bodies), as well as some of the more advanced instruments. The principles of protection that guide a regional response are incorporated in a series of binding instruments covering both substantive and procedural issues. This builds on the right to asylum explicitly guaranteed in Article 18 of the European Charter of Fundamental Rights. The last 12 months have seen significant pressure put on both European solidarity and the right to asylum from the number of applications received and from the response of both the EU (as an institution) and its individual Member States.

The Dublin System is possibly one of the most widely criticised elements of the CEAS—it is also widely misunderstood by the public, misrepresented by the media and misapplied by States. Furthermore, it is a flawed instrument that places excessive burdens on the Member States at Europe’s periphery, ignores the asylum seekers’ desires (and the linked agency to move farther), and (wrongly) assumes equal levels of protection across the various EU Member States. The system’s application has restrictions applied from its own founding legislation and through decisions of both the Strasbourg and Luxembourg Courts. An official evaluation of the Dublin system (to which the Commission Proposal refers) found that the underlying aim of reducing secondary movements has clearly failed, with 24% of applicants in 2014 having already sought asylum elsewhere (this figure does not even include people who whilst having been in other countries were not formally in the asylum system). Moreover, the regulation has limited impact on the distribution of applicants within the EU, given that net transfers in Dublin procedures are very few. The recent proposal by the EC aims to address some of these weaknesses but, in my view, fails to do so effectively.

Read the rest of this entry…

Print Friendly
 
 Share on Facebook Share on Twitter
Comments Off on Leap Ahead or More of the Same? The European Commission’s Proposed Revisions to the Dublin System

Killing by Omission

Published on April 20, 2016        Author: 

On Monday, the Forensic Architecture team at Goldsmith College, London, published Death by Rescue. The report exposes a rather complex set of facts, but the basic argument is as simple as it is alarming.

Operation Triton, facilitated by Europe’s border security agency, Frontex, began on 1 November 2014 and is mandated to enforce Italy’s maritime border. Triton replaced an earlier and much wider Italian Navy operation, Mare Nostrum, which began in October 2013 and was mandated to save migrant lives beyond Italy’s territorial waters. When EU officials decided on the more limited scope of Triton, they knew their decision would result in the drowning of numerous migrants. As one Frontex official wryly noted, “the withdrawal of naval assets from the area, if not properly planned and announced well in advance, would likely result in a higher number of fatalities.” But the European Commission turned a blind eye – leading to a spike in migrant deaths, which the authors, Charles Heller and Lorenzo Pezzani meticulously document.

From a legal perspective, this set of circumstances raises the question whether the migrants’ rights were violated, and if so, whether EU actors can be held legally accountable. In my view, the report exposes no illegal activity by European agents, either at the operational or at the policymaking level. Perhaps more troubling, the report raises the specter of unaccountable violence ingrained in the very structure of international law. If international law is somehow to blame for circumstances that made these utterly preventable deaths possible, then perhaps it is law itself that should be indicted.

Law of the Land, Law of the Sea

To explain what I mean by that, several rather theoretical remarks are required.

In common law countries, one of the first things law students learn is that law imposes no duties of rescue upon individuals qua individuals.  The classical jurisprudence on this includes comically macabre examples. A characteristic hypothetical describes a bystander witnessing a drowning baby. Law professors often use the initially astonishing absence of a duty of rescue to illustrate a basic tenet of legal positivism: the distinction between legal and moral prescription (or “the separation thesis”). Students are expected to adopt this distinction as a second nature. Rescuing the drowning stranger, they are comforted, is morally required. Of course, there are important exceptions to the general absence of a duty of recue. The basic point nevertheless stands: law does not impose a duty of rescue. Law does not always follow moral prescription. Read the rest of this entry…

Print Friendly
 

Moving Beyond the Asylum Muddle

Published on September 14, 2015        Author: 

The horrific images of refugees dying on European shores seem – finally – to have galvanized public opinion in favor of a shift to protection rather than deterrence. Some leaders seem still to be committed to harsh action – Hungarian Prime Minister Orban’s comment that the arrival of refugees threatened “Europe’s Christian roots” and the decision of Czech officers to use indelible ink to write numbers on the hands of refugees, reminiscent of the Nazi tattooing of Jews and other minorities, being especially odious examples.

But the proverbial tide does seem to have turned. Pro-refugee marches in Vienna, Icelanders demanding that their government let them open their homes to refugees, and English and German football fans displaying banners welcoming refugees to join them at matches seem to have paved the way for the momentous announcement by Austria and Germany that those countries would open their doors to refugees trapped in Hungary. German Chancellor Merkel has emerged as the voice of reason, rightly insisting that the protection of refugees “is morally and legally required” of all state parties to the Refugee Convention.

What now?

First, it is important not to simply go back to “business as usual” when the immediate humanitarian emergency ebbs. The current pressures will abate as some states – inside and beyond Europe, as recent French and Argentinian responses attest – will inevitably follow the Austrian and German lead and open their doors to at least some refugees. The impending arrival of winter weather will moreover stymie the ability of many refugees – in particular, the most vulnerable – to travel to safety. While relative calm has historically inclined governments to return to their protectionist ways, the failure to seize this moment to minimize the risk of future protection tragedies would represent a serious ethical lapse.

Read the rest of this entry…

Print Friendly