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Home Archive for category "Refugee Law"

Statelessness is back (not that it ever went away…)

Published on September 12, 2019        Author: 

Citizenship deprivation and statelessness are very much back in fashion. States increasingly resort to such measures to deal with those returning from foreign wars, or as a sanction for those otherwise deemed undesirable and unwanted – it must certainly seem easier than living up to their obligations actually to combat terrorist activities or war crimes or crimes against humanity (see here).

States are also ‘cracking down’ on citizenship claims and on the rights of refugees and migrants rights in orchestrated, if often chaotic, policies and practices seemingly designed to cultivate discrimination and division in society, often in the hope of some electoral advantage. Former UK Home Secretary, Theresa May’s ‘really hostile environment’ had such objectives (see here), while India’s current focus on minorities conveniently identified by reference to religion (see here and here and here), is not so very far removed from Myanmar’s programme of violence and persecution against the Rohingya it claims to be stateless (see here).

To any government which, thanks to the idle musings of former UK Prime Minister Tony Blair (see here), argues that citizenship is a privilege, not a right, one may as easily answer the contrary, for many a government these days seems bent on trashing precisely those responsibilities which are its raison d’être.

On the international plane, however, the State does have responsibilities with regard to its citizens. Among others, the State must ensure that they do not violate human rights and that they do not harm other States, whether through cross-border pollution, transnational criminal activities, or even by reason of their having to seek asylum from persecution, conflict or the risk of other serious harm. What is more, these responsibilities also apply after the fact, obliging States to do what may be required, for example, through prosecution and punishment, to uphold the integrity and efficacy of internationally agreed measures – to punish torturers, or those who have engaged in internationally proscribed terrorist activities; in short, to recognize and accept responsibility for those who have been formed among us, no matter how wrong the path subsequently chosen.

When citizenship enters the picture, does international law have much to say? The ‘old’ view that everyone should have a nationality, and only one nationality, has long since had to yield to the realities of a globalised world. What’s more, it has so far proved impossible to get States formally to accept constraints on their sovereign competence in nationality matters, even though what a States does in relation to nationality is entitled to recognition by others only so far as it is consistent with international law. And international law does have something to say, recognizing the link between people and territory, between the individual and their own country, between the competence to expel and the duty to admit.

Read the rest of this entry…

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An Unforeseen Pandora’s Box? Absolute Non-Refoulement Obligations under Article 5 of the ILC Draft Articles on Crimes Against Humanity

Published on May 20, 2019        Author: 

Introduction

In 2013, the International Law Commission (ILC) added to its long-term work programme the topic of a convention on the prevention and punishment of crimes against humanity. This proposed convention is meant to join sibling conventions addressing genocide and war crimes and would stand in the tradition of other conventions addressing serious crimes, such as torture and enforced disappearance. So far, the ILC has adopted 15 Draft Articles which include a wide range of obligations for future State parties regarding the prevention of crimes against humanity, as well as on measures relating to domestic criminalization, mutual legal assistance and extradition. This blog post, however, focusses on Draft Article 5, which includes an absolute non-refoulement obligation with regard to crimes against humanity:

Article 5 Non-refoulement 

  1. No State shall expel, return (refouler), surrender or extradite a person to territory under the jurisdiction of another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity.
  2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the territory under the jurisdiction of the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.

While the commentary on the Draft Articles argues that most States consider Article 5 to be a mere codification exercise and consistent with existing obligations under international human rights law (IHRL), some states such as the USA, UK and Jordan have expressed their concern that Draft Article 5 constitutes a progressive development of the law and introduces new, mandatory standards of non-refoulement protection. This post makes three main claims. First, that Draft Article 5 does indeed constitute a progressive development of the law and would supersede the current non-refoulement regime under both refugee and human rights law. Second, that although the proposed new regime would increase the protection of individuals from refoulement, it does so in a rather arbitrary fashion. Lastly, that this new regime will further restrict the ability of states to expel or return unwanted individuals who have committed serious crimes or constitute a danger to their community and could therefore trigger a significant political backlash once the Draft Articles reach the level of political decision makers in the future member states of the Convention. 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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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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Offshore Processing and Complicity in Current EU Migration Policies (Part 2)

Published on October 11, 2017        Author:  and

In the first part of our blog post we reconstructed a complex web of migration policies that indicate a shift towards offshore processing of asylum claims in Niger and possibly Chad. In this second part, we seek to answer an obvious yet difficult legal question, namely who bears responsibility in scenarios of extraterritorial complicity such as this one? As described in part one, the new plan could not be implemented without the close cooperation of various actors: European Union (EU) institutions and Member States, third countries (Niger and/or Chad) and UN organisations (IOM and UNHCR).

Our discussion focuses on issues of responsibility and jurisdiction arising when bringing a case to the European Court of Human Rights (ECtHR) against any of the Member States involved in the setting up and implementation of the offshoring mechanism. Read the rest of this entry…

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