magnify
Home Archive for category "Refugee Law"

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…

Print Friendly
 

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
 

‘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
 

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
 

12 Years an Asylum Seeker: Failure of States to Deal With Asylum Applications May Breach Applicants’ Right to Respect for Their Private Life

Published on October 26, 2016        Author: 

In its ground-breaking B.A.C. c. Grèce judgment of October 13 2016, the European Court of Human Rights found that Greece violated the right of an asylum seeker to respect for his private life under Article 8 ECHR due to the failure of the Greek authorities to effectively deal with his asylum application. Whilst the facts of the case are outright extraordinary, the overall significance of the case cannot be downplayed. For the first time, the Court accepted that Article 8 ECHR may be breached due to a State’s inactivity in respect of an asylum application.

The applicant, a Turkish national, had been arrested by the Turkish authorities, and after being charged with an offence against the constitutional order on account of his pro-communist and pro-Kurdish convictions, was placed in solitary confinement. Following a 171-days long hunger strike, he was set free. On 15 January 2002, having entered Greece, he applied for asylum, yet the application was dismissed. The applicant brought an appeal against this decision. According to the law in force at the time, decisions upon appeal were made by the Minister for Public Order within a period of 90 days, following an advisory opinion by a ‘Consultative Asylum Committee’. Indeed, the Committee issued an opinion favorable to the applicant on 29 January 2003.

From this date and for a period of 12 years (up until the application before the Court), the Greek state refrained from reaching any decision on the asylum application. The applicant spent these 12 years in Greece as an asylum seeker denied – in accordance with domestic law – the right to vocational education, to obtain a driver’s license, to open a bank account. The Greek authorities, including the Greek police, nonetheless, did not fail to attest on several occasions that the application was pending, thus renewing his asylum applicant’s identification card. In the meantime, the Turkish authorities sought to extradite the applicant to Turkey. Following a legal battle before the Greek courts the extradition request was defeated. One should also add that the applicant’s wife joined him in Greece in 2003 for a period of 9 years, during which a child was born unto the couple. Still, the applicant was deprived of the right to family reunification, and the situation of the couple was only regularised – somewhat – following the issuance of a temporary work permit to the applicant’s wife in 2008. Eventually, she decided to return to Istanbul and the couple divorced. Read the rest of this entry…

Print Friendly
 

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…

Print Friendly
Filed under: EJIL Analysis, Refugee Law
 
 Share on Facebook Share on Twitter
Comments Off on Up the Creek without the Law: What is at Stake in Refugee Responsibility Sharing?

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