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Home Archive for category "Migration"

Itamar Mann Concludes the Discussion on “Humanity at Sea”

Published on August 7, 2017        Author: 

This symposium brought together four of my favorite scholars to engage with Humanity at Sea, and I couldn’t be more thankful. I learned a great deal from each of the reviews and entirely agree with Jaya Ramji-Nogales when she writes, in an understatement, that they leave me with “ongoing questions to address.” I will only begin to lift the burden here.

The Place of Human Rights  

If human rights are to be conceptualized around a dyadic encounter, asks Chantal Thomas, must this encounter be a physical one? “Perhaps the horrific reports of Mediterranean crossings on television or in other media might stage a form of virtual encounter […] that serves as the catalyst for generating human rights.” In the book, I try to provide a starting point for approaching such questions.

Chapter 5 examines the use of surveillance systems and other technologies both by states engaged in “migration management”– and by migrants, refugees, and smugglers. Using such technologies, relevant actors re-construct and manipulate the physical encounter at sea (which is discussed in previous chapters). They are thus able to partake in the transformation of human rights jurisdiction. Since I completed the book, the use of these technologies has developed quickly and there are many more examples to discuss: Read the rest of this entry…

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Tarnished Hospitality: Reflections on Itamar Mann’s ‘Humanity at Sea’

Published on August 4, 2017        Author: 

What men, what monsters, what inhuman race,

What laws, what barbarous customs of the place,

Shut up a desert shore to drowning men,

And drive us to the cruel seas again.

The above verse, recounting the plea of the Trojan refugee Aeneas to queen Dido when washed ashore in present-day Libya, repeatedly comes to mind when reading Itamar Mann’s new book, Humanity at Sea. Like Mann’s volume, this part of Vergil’s Aeneid (Dryden’s translation, I, 760-63) zooms in on the basic norms governing the encounter between the powerful and the dispossessed. An encounter that, if with a somewhat reversal of cast, is played out thousands and thousands of times these years as refugees and migrants try to cross the very same waters.

Mann’s inductive approach is not shy of ambition, however. A proper understanding of the encounter between the ‘universal boat person’ and the naval authorities, we are told, holds the keys to an entire theory of human rights. His core argument, that at the heart of human right lies a dyadic encounter quite distinct from both the constitutional and intergovernmental approaches forwarded by positive international law, is both simple and compelling. Read the rest of this entry…

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Review of Itamar Mann’s ‘Humanity at Sea’

Published on August 4, 2017        Author: 

Itamar Mann’s Humanity at Sea is bold, engaging, and wide-ranging. Perhaps most importantly, it is not afraid to confront standard clichés about the conceptual underpinnings and normative architecture of international refugee law and international human rights law. In addition to specifically legal sources, it marshals a wide range of materials from a number of disciplines, particularly moral and political philosophy, in order to develop an original argument about the centrality of the refugee “encounter”—the physical and symbolic meeting between those seeking protection and those empowered to accept or reject them—to the nature of human rights generally.

On Mann’s account, human rights are non-positive norms of universal value or implication; they cannot be reduced to the rights and duties enumerated in conventional human rights instruments, whether domestic or international. Far from being ineffective or of merely marginal significance, they are one of the two “foundations” of international law, the other being sovereignty. Read the rest of this entry…

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Human Rights Adrift from Natural Law: A Review of Itamar Mann’s ‘Humanity at Sea’

Published on August 3, 2017        Author: 

What is the source of human rights law?  Itamar Mann’s new book, Humanity at Sea: Maritime Migration and the Foundations of International Law, offers a thoughtful and original answer to this age-old question.  He suggests that human rights law is neither positive law nor natural law, but rather a “commitment to paradoxically and counterfactually regard some form of imperative as extra-political.” (13)  Mann argues that this imperative originates in a dyadic (rather than collective) encounter with the presence of another person, presenting the “universal boatperson” to illustrate this concept. (12-13)

The book is structured as a series of rich case studies, which Mann utilizes exceptionally effectively.  Through exegesis and context, he provides new understanding of and insights into familiar situations and cases, including the stories of Jewish displaced persons traveling to Palestine, refugees fleeing Vietnam by boat, Haitians pursuing protection in the United States, and African migrants seeking safety on the shores of Europe.  We see here both the political theorist and the human rights reporter in action, drawing in the reader with detailed and fascinating stories, and drawing out the theoretical implications in provocative new ways.  Read the rest of this entry…

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Encounters and their Consequences: A Review of Itamar Mann’s “Humanity at Sea”

Published on August 3, 2017        Author: 

Humanity at Sea explores the outer frontiers and inner tensions of human rights law in its treatment of migrants who, intercepted at sea, challenge the interpretive boundaries of international law as well as the literal boundaries of states.

In providing an impressive and often moving overview of legal and administrative responses to migrants at sea, Mann also seeks to offer a “new theory of human rights” (p.6). The jurisprudential focus lies with whether states can be obligated to assist. Though international law confers a duty of rescue on the high seas, that duty extends only to immediate emergency assistance: once out of physical danger, it would not prevent migrants from being returned to their home territories.  By contrast, the duty of non-refoulement, which compels states not to “expel or return” migrants to territories where they could be persecuted (Art. 33, 1951 Refugee Convention), has traditionally been interpreted to apply only to receiving states’ territories, not to interception outside territorial waters on the high seas.

Mann’s theory provides a framework for understanding how states may come to extend this obligation, through a more general conceptualization of how new human rights come to be recognized. Whereas international legal thought has oscillated between positive law and natural law as a basis for state obligation, Mann’s innovation is to reject this dyad.  Read the rest of this entry…

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Book Discussion: Itamar Mann Introduces “Humanity at Sea”

Published on August 2, 2017        Author: 

Legal and political discussion around maritime migration began long before the current crisis. In 1976, a speaker at the American Society of International Law annual meeting warned his listeners of a surge of migrants that will land on beaches in the early 21st century: “The little old ladies in tennis shoes will bring them tea and toast – at first [But] What will the Australians do when the number reaches one million or two or three?”

When I started to ponder Humanity at Sea about a decade ago, migrants at the maritime crossings between the “developed” and the “developing” worlds had already generated significant interest among commentators.  But these earlier conversations did not prepare for the events of the so-called refugee crisis, and the media’s near-obsession with the subject. The images we all saw starting from August 2015 chillingly rendered real what I initially thought of as a metaphor — bare and extreme – for the most basic dilemma about human rights: where do human rights come from?

In the book, I argue that human rights obligations cannot emanate from consent to human rights treaties, as voluntarist and positivist accounts of human rights would argue. Read the rest of this entry…

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Book Discussion: Itamar Mann’s “Humanity at Sea: Maritime Migration and the Foundations of International Law”

Published on August 2, 2017        Author: 

The blog is happy to announce that over the next few days, we will host a discussion of Itamar Mann’s ‘Humanity Sea: Maritime Migration and the Foundations of International Law‘.

Itamar is a senior lecturer at the University of Haifa, Faculty of Law, where he teaches and researches in the areas of public international law, political theory, human rights, migration and refugee law, and environmental law. He is also a legal advisor for the Global Legal Action Network.

We will kick of the discussion this afternoon with an introduction by the author. Over the next few days, we will have posts on the book from Jaya Ramji-Nogales, Umut ÖzsuChantal Thomas, and Thomas Gammeltoft-Hansen. Itamar will then bring the discussion to a close with his concluding remarks.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in- comments will of course be open on all posts.

 

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An Appraisal of the Council of Europe’s Draft European Rules on the Conditions of Administrative Detention of Migrants

Published on July 19, 2017        Author: 

In the last decade, a growing momentum has developed to end immigration detention. This momentum has two dimensions. First, that certain migrants, such as children, should never be detained as they are in a situation of particular vulnerability. Second, that even if a migrant is not deemed to be in a situation of ‘particular vulnerability’, alternatives to detention should be preferred and detention only used as a last resort when lawful, for a legitimate purpose, necessary and proportionate. The exceptionality of immigration detention is rooted in the recognition of the harmful physical and psychological effects of the administrative detention of persons who are not accused of a crime. The adverse impact of detention is magnified when accompanied by uncertainty about when the detention might end as well as the risk of ill-treatment, discrimination and poor detention conditions.

In addition to the work of NGOs such as the International Detention Coalition, international organisations have called on states to develop alternatives to immigration detention with some producing action plans to end immigration detention. Read the rest of this entry…

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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…

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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…

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