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Home Archive for category "Refugee Law" (Page 3)

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…

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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…

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The Drowning Child

Published on September 3, 2015        Author: 

If you haven’t already – read, look, and weep. Then reflect, perhaps, on why and how it is that such images are able to penetrate the walls we erect to shield ourselves from an uncomfortable reality, even while we are rationally fully aware of that reality. Having done so, I could not help but remember this other, hypothetical drowning child (see also here and here):

To challenge my students to think about the ethics of what we owe to people in need, I ask them to imagine that their route to the university takes them past a shallow pond. One morning, I say to them, you notice a child has fallen in and appears to be drowning. To wade in and pull the child out would be easy but it will mean that you get your clothes wet and muddy, and by the time you go home and change you will have missed your first class.

I then ask the students: do you have any obligation to rescue the child? Unanimously, the students say they do. The importance of saving a child so far outweighs the cost of getting one’s clothes muddy and missing a class, that they refuse to consider it any kind of excuse for not saving the child. Does it make a difference, I ask, that there are other people walking past the pond who would equally be able to rescue the child but are not doing so? No, the students reply, the fact that others are not doing what they ought to do is no reason why I should not do what I ought to do.

Once we are all clear about our obligations to rescue the drowning child in front of us, I ask: would it make any difference if the child were far away, in another country perhaps, but similarly in danger of death, and equally within your means to save, at no great cost – and absolutely no danger – to yourself? Virtually all agree that distance and nationality make no moral difference to the situation. I then point out that we are all in that situation of the person passing the shallow pond: we can all save lives of people, both children and adults, who would otherwise die, and we can do so at a very small cost to us: the cost of a new CD, a shirt or a night out at a restaurant or concert, can mean the difference between life and death to more than one person somewhere in the world – and overseas aid agencies like Oxfam overcome the problem of acting at a distance.

At this point the students raise various practical difficulties. Can we be sure that our donation will really get to the people who need it? Doesn’t most aid get swallowed up in administrative costs, or waste, or downright corruption? Isn’t the real problem the growing world population, and is there any point in saving lives until the problem has been solved? These questions can all be answered: but I also point out that even if a substantial proportion of our donations were wasted, the cost to us of making the donation is so small, compared to the benefits that it provides when it, or some of it, does get through to those who need our help, that we would still be saving lives at a small cost to ourselves – even if aid organizations were much less efficient than they actually are.

I have always found this argument in its essence to be incredibly compelling, even if I am no utilitarian, and even if Singer’s argument when brought to its fullest is far too demanding of most of us. But even so, as the “migrant” crisis is sweeping Europe, as children are drowning on its shores, I feel that some people who are not moved by the big picture (like this guy) might, perhaps, be moved if they were asked a smaller, more human-scale question: what would you do if you saw a child drowning in a pond?

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Data Protection in International Organizations and the New UNHCR Data Protection Policy: Light at the End of the Tunnel?

Published on August 31, 2015        Author: 

In May 2015 the United Nations High Commissioner for Refugees (UNHCR) published its Policy on the Protection of Personal Data of Persons of Concern to UNHCR (Data Protection Policy). The Policy may seem to be merely an internal guidance document addressed to the staff members of an international organization. However, as a subsidiary organ of the United Nations, established by the General Assembly pursuant to Article 22 of the UN Charter, working for millions of refugees and with thousands of other organizations active in the field of protection and assistance, UNHCR bears a certain responsibility when it sets internal standards which inevitably also have an external impact. Moreover, the Policy highlights the growing importance of data protection in international law, particularly for the work of international organizations.

Against this background, our blog addresses some interesting underlying legal issues of public international law raised by the Policy. In particular, it discusses the relevance of data protection to the work of international organizations, including UN agencies, and what level of data protection is appropriate and required for international organizations in general and UNHCR in particular, taking into account the humanitarian context in which the organization often operates. Read the rest of this entry…

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The Use of Force Against People Smugglers: Conflicts with Refugee Law and Human Rights Law

Published on June 22, 2015        Author: 

On 18 May, EU ministers agreed on a military operation (EU NAVFOR Med) that could comprise, in its final phase, the boarding, seizure and destruction of suspected migrant smuggling vessels, subject to approval by the UN Security Council. Negotiations before the Security Council appear to have halted until both the Libyan government in Tobruk and the ruling authorities in Tripoli give consent. Meanwhile, a diplomatic source involved in the EU internal talks on the matter stated that a military operation could be decided on 22 June at the Foreign Affairs Council in Luxembourg.

In earlier EJIL talk! posts, Melanie Fink and Sergo Mananashvili argued that a Security Council Resolution would be questionable under the law of the use of force. But a resolution would also raise issues of compliance with refugee and human rights law and thus would produce a norm conflict between a Security Council Resolution and other international law.

The Likely Need to Have Forces Close to the Libyan Shore

Let’s look at the most likely scenarios around the use of force, were the EU move forward and the UN Security Council to approve of the plans.

An earlier EU strategy paper had foreseen ‘intelligence, surveillance and reconnaissance; boarding teams; patrol units (air and maritime); amphibious assets; destruction air, land and sea, including special forces units.’ Since then, the EU’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, has pointed out that the operation would not include ‘boots on the ground’ in Libya. At the same time, it is clear that EU diplomats seek more than approval to destroy vessels intercepted at sea, and from which all migrants have disembarked. The EU seeks a UN resolution for destroy smuggling vessels before they have departed.

Identifying smuggling vessels before they have departed will be challenging without deploying people on the ground in Libya. Smuggling vessels can clearly be identified as such only at or shortly before the time they are being used for smuggling. Read the rest of this entry…

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The Human Rights of Migrants as Limitations on States’ Control Over Entry and Stay in Their Territory

Published on May 21, 2015        Author: 

As Juan Amaya-Castro points out, (domestic) migration legislation is about selecting among potential or prospective migrants, i.e. creating two categories of migrants: ‘documented’ or ‘regular’ migrants, whose migration status complies with established requirements, and ‘undocumented’ or ‘irregular’ migrants, whose migration status does not so comply. Where does this leave international law and, as Juan Amaya-Castro calls it, its humanist-egalitarian tradition?

This post will argue that Amaya-Castro underestimates the strict and strong limitations on the sovereignty of states established by international human rights law, international refugee law and international labour law. In particular, states’ discretion in the adoption and enforcement of migration policies is limited by their obligation to respect, protect and promote the human rights of all individuals within their territory and subject to their jurisdiction (UN Human Rights Committee, General Comment No. 15, para. 5). This post discusses some of the far-reaching consequences of this principle, focusing on three types of limitations on state sovereignty with respect to migration: limitations on the prerogative to control entry; limitations on the prerogative to establish conditions for entry and stay; and limitations on the treatment of irregular migrants.

Limitations on the prerogative to control entry

The obligation not to reject refugees and asylum-seekers at the frontier may be an exception to state sovereignty conceptually, but it is far from exceptional in practice, especially in certain European contexts. Of the 19,234 people “intercepted” along EU borders by the joint border control operation Mos Maiorum between 13-26 October 2014, 11,046 people (57%) claimed asylum (Mos Maiorum final report, p. 25). More than a quarter of those “intercepted” were Syrians, followed by Afghans, Eritreans, Somalis, Iraqis – individuals whose need for international protection can easily be argued (ibid., p10).

Nikolaos Sitaropoulos expertly discussed the limitations imposed on states’ sovereign prerogative to control entry and stay by the Council of Europe human rights framework, in particular its obligation of non-discrimination. Outside that framework, the guidance provided by the UN Committee on the Elimination of Racial Discrimination (CERD) is also worth mentioning. In 1998 the Committee criticised Switzerland’s so-called three-circle-model migration policy, which classified foreigners on the basis of their national origin, as ‘stigmatizing and discriminatory’ (UN Doc. CERD/C/304/Add.44, para. 6). Four years later, the Committee expressed concern at the possible discriminatory effect of Canadian migration policies (in particular, a high ‘right of landing fee’) on persons coming from poorer countries (UN Doc. A/57/18, para. 336). On these grounds, this post argues that the general principle of non-discrimination is a limitation to states’ discretion in the adoption and enforcement of all migration policies, including their prerogative to control entry. Read the rest of this entry…

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International Migration Law: License to Discriminate?

Published on May 19, 2015        Author: 

The story of international law and migration commonly begins with the observation that states have the sovereign right to deny access to non-nationals. This statement is then qualified with the observation that there are some exceptions to this rule. Refugees and other people who may run serious risks if returned to their country, or are otherwise expelled, and in some cases people requesting admission on the basis of family reunification, should be allowed access. The sovereign right to exclude is presumed to be inherent and ‘age-old’. That impression is mistaken. Immigration control is a relatively recent phenomenon. Until late in the 19th century, political demographic conditions made population growth desirable, so immigration was welcomed. It was only with the desire to limit Chinese immigration into the US and Australia, a desire motivated by racist considerations, that immigration control and the passport regime became the new ‘normal’, and that the reference to the ‘age old’ sovereign right to control immigration began to gain force.

Recently, a number of countries have made headlines because of innovative immigration policies designed to attract investors and entrepreneurs. Spain, Chile, Canada, and others are now conceiving of immigration policies within the broader context of increasing their economic competitiveness. Many other countries already offer benefits to so-called ‘knowledge migrants’. What makes this new wave stand out is the overt effort to compete with other countries for talent and investment. One could almost forget that fear of immigrants has been the main driving force behind most immigration policies around the world. Although government officials in many countries experiencing immigration may be under pressure to implement policies that bring immigrant numbers down, immigration policies have typically also been made with an eye to economic sectors eager for access to certain workers, whether skilled or unskilled. In other words, immigration policies cater not only to those fearful of (large scale) immigration, but also to those in need of specific forms of labor.

As such, migration law is not just about putting up barriers to migrants but also about selecting among potential or prospective migrants. In the Dutch political context the term of art is kansarm (poor in prospect) or more broadly in public opinion debates kansloos (prospectless). Kansarm even made it into the 2010 coalition agreement, which also exempted so-called knowledge-migrants (kennismigranten) from various measures deemed to make immigration more difficult; the factor used to determine whether someone is a knowledge-migrant is a minimum level of income. Blunt as Dutch political discourse may be, public discourse on immigration in most immigration countries often takes such distinctions for granted. Read the rest of this entry…

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Could Australia Follow a US Lead on Maritime Interdiction of Migrants?

Published on August 19, 2013        Author: 

As an Australian citizen living abroad a depressing feature of current electoral politics at home has been the race to the bottom on policy for asylum-seekers arriving by boat to Australia. The reasons for which the new policy of summarily deporting all boat arrivals to Papua New Guinea for refugee processing and resettlement are contrary to Australia’s international obligations have been ably articulated by Ben Saul and others.

However, an allied issue in the boat people debate has been the feasibility of “stopping the boats” at sea. The leader of the Coalition opposition, Mr Tony Abbott, has claimed “it’s standard naval practice to intercept and turn around boats on the high seas,” and Coalition policy has also reportedly “annoyed Indonesia by insisting Jakarta is open to talking on turning back boats when it most definitely is not”. Nonetheless, Mr Abbot has suggested that the “US Coast Guard has been turning boats around in the Caribbean for years” and that this points to maritime interception as a viable policy option.

So does US Coast Guard migrant interdiction provide a model Australia could adopt? In my view: no. The US Coast Guard does intercept thousands of migrants at sea every year from Cuba, Haiti and the Dominican Republic, but only under a very different operational and legal framework to that being proposed in Australia. Read the rest of this entry…

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Former ICC Defendant – Ngudjolo – Applies for Asylum in the Netherlands

Published on March 28, 2013        Author: 
Mathias Holvoet is PhD-Researcher in International Criminal Law at the Vrije Universiteit Brussel, Belgium. He is also a member of the Research Group on Fundamental Rights and Constitutionalism (FRC). Dersim Yabasun is a PhD-Researcher in the International and European Law Department, Maastricht University, The Netherlands.

Mathieu NgudjoloOn 18 December 2012, Mathieu Ngudjolo Chui (Ngudjolo) – a Congolese militia leader – became the first to be acquitted before the ICC, after Trial Chamber II judged that he could not be found guilty beyond a reasonable doubt of charges of war crimes and crimes against humanity committed in the village of Bogoro in 2003. Ngudjolo was released on 21 December 2012. Subsequently, according to Ngudjolo, the Dutch government decided to repatriate him back to the Democratic Republic of Congo (DRC). Since Ngudjolo feared persecution in the DRC because of his incriminating testimony against the Kabila government during his trial, he decided to apply for asylum in the Netherlands to prevent his expulsion. Furthermore, Ngudjolo requested the ICC to require the Netherlands to hand him over to the Court, with whom he would negotiate a place to live pending his asylum examination and during the appeal proceedings. In addition, Ngudjolo requested the Court to order the Victims and Witnesses Unit (VWU) to provide for his protection. The Appeals Chamber will decide on these requests later this year.

The Dutch authorities have approached this whole new development of ‘ICC-asylum seekers’ with serious concern.

There is a reasonable chance that Ngudjolo will be excluded from refugee protection by the Dutch Immigration and Naturalization Service (IND) on the basis of Article 1(f)(a) of the 1951 Geneva Convention relating to the Status of Refugees (Refugee Convention), as was the case with two defense witnesses in the Katanga & Ngudjolo cases who applied for asylum in the Netherlands in 2012. However, if there is a risk that Ngudjolo would be subjected to torture or degrading treatment if he were to be expelled to the DRC, Article 3 of the European Convention on Human Rights (ECHR), which protects any person and has an ‘absolute’ character, might prevent his expulsion to the DRC. In that case, Ngdudjolo may find himself in a ‘legal vacuum’. He would be ordered to leave Dutch territory, but at the same time the Dutch authorities are not allowed to expel him to the DRC because of its obligations under European human rights law. This piece will discuss the chances of returning Ngudjolo on the basis of diplomatic assurances and the option of relocation for future acquitted defendants to third countries.

Read the rest of this entry…

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