Part IV Access to Protection and International Responsibility-Sharing, Ch.27 Extraterritorial Migration Control and Deterrence

2021 ◽  
Author(s):  
Gammeltoft-Hansen Thomas ◽  
Tan Nikolas Feith
Keyword(s):  
International Human Rights Law ◽  
Human Rights Law ◽  
International Protection ◽  
Refugee Law ◽  
Legal Responses ◽  
State Practice ◽  
Migration Control ◽  
Global North ◽  
International Refugee Law ◽  
The Right

Extraterritorial migration control represents a fundamental challenge to refugees’ ability to access asylum. The right to seek asylum, pivotal to the international protection of refugees, almost always requires that an asylum seeker reach a State’s territory to access protection. This chapter charts the emergence and evolution of different forms of extraterritorial migration control over the past three decades which render this access to protection increasingly dangerous and elusive. Equally, the chapter shows that international refugee law has not remained static in this period. From dynamic developments in the interpretation of key tenets of refugee law to the wider turn to international human rights law and litigation, refugee lawyers have consistently challenged restrictive developments in State practice. However, legal responses to extraterritorial migration control cannot stop here. This chapter sketches out a topographical approach to accountability, cutting across different legal regimes, different levels of national, transnational, regional, and international law, and different jurisdictions in both the Global North and the Global South, to confront the challenges thrown up by contemporary extraterritorial migration control and deterrence.

EU Non-Refoulement: (The Irrelevance of) Territoriality and Pre-Border Controls

2017 ◽  
Author(s):  
Violeta Moreno-Lax
Keyword(s):  
International Human Rights Law ◽  
Eu Law ◽  
Human Rights Law ◽  
Refugee Law ◽  
Functional Understanding ◽  
Scope Of Application ◽  
International Refugee Law ◽  
Border Controls ◽  
The Eu

This chapter identifies the content and scope of application of the EU prohibition of refoulement. Following the ‘cumulative standards’ approach, the analysis incorporates developments in international human rights law (IHRL) and international refugee law (IRL). Taking account of the prominent role of the ECHR and the Refugee Convention (CSR51) as sources of Article 19 CFR, these are the two main instruments taken in consideration. The scope of application of Articles 33 CSR51 and 3 ECHR will be identified in turns. Autonomous requirements of EU law will be determined by reference to the asylum acquis as interpreted by the CJEU. The main focus will be on the establishment of the territorial reach of EU non-refoulement. The idea that it may be territorially confined will be rejected. Drawing on the ‘Fransson paradigm’, a ‘functional’ understanding of the ‘implementation of EU law’ standard under Article 51 CFR will be put forward, as the decisive factor to determine applicability of Charter provisions. The implications of non-refoulement for the different measures of extraterritorial control considered in Part I will be delineated at the end.

scholarly journals Crossing borders between International Refugee Law and International Human Rights Law in the European context: Can human rights enhance protection against persecution based on sexual orientation (and beyond)?

2019 ◽  
Vol 37 (4) ◽  
pp. 359-378
Author(s):  
Carmelo Danisi
Keyword(s):  
Human Rights ◽  
Sexual Orientation ◽  
Sexual Minorities ◽  
Geneva Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Refugee Law ◽  
International Human ◽  
International Refugee Law

In the last decades, international refugee law (‘IRL’) and international human rights law (‘IHRL’) have increasingly taken into account sexual minorities’ needs. Despite not being one of the grounds of persecution under the 1951 Geneva Convention on the Status of Refugees, sexual orientation has been identified as a relevant factor for the recognition of refugee status for more than twenty years. In parallel, IHRL has evolved to a point where sexual minorities are more fully included within the scope of rights and freedoms set forth in universal and regional human rights treaties, especially via the prohibition of discrimination. Yet, strange as it may seem, this simultaneous evolution has not always led to a fruitful intersection between IRL and IHRL, even in terms of interpretation despite what the Law of Treaties requires. Drawing from documentary and qualitative data and by taking people fleeing homophobia as example, this article looks at the role that IHRL may play in complementing and in intersection with IRL. It argues that IHRL may, firstly, raise obligations to facilitate the access of these claimants to asylum determination procedures and, secondly, inform the notion of persecution used in IRL more comprehensively than it currently does in practice.

scholarly journals Containment Instead of Refoulement: Shifting State Responsibility in the Age of Cooperative Migration Control?

2020 ◽  
Vol 20 (2) ◽  
pp. 306-332
Author(s):  
Annick Pijnenburg
Keyword(s):  
Human Rights ◽  
International Law ◽  
State Responsibility ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Migration Control ◽  
International Human ◽  
The Right ◽  
And Training

Abstract Containment policies whereby destination States provide funding, equipment and training to transit States that intercept refugees on their behalf suggest that destination States try to circumvent the prohibition of refoulement and raise the question to what extent destination States can avoid responsibility for violations of the rights of migrants and refugees by cooperating with transit States. Answering this question requires broadening the analysis beyond the principle of non-refoulement, including not only international human rights law, especially the right to leave and the concept of jurisdiction, but also the law of State responsibility, notably the prohibition of complicity. This article argues that, although it remains debatable whether the principle of non-refoulement applies when transit States intercept migrants and refugees on behalf of sponsoring destination States, the wider network of international law rules constrains the latter’s ability to avoid responsibility when implementing cooperative migration control policies.

scholarly journals The Substance of Solidarity: What the Response to the COVID-19 Pandemic Says About the Global Refugee Regime

2021 ◽  
Author(s):  
Magdalena Perzyna
Keyword(s):  
United States ◽  
Asylum Seekers ◽  
The United States ◽  
Global Compact ◽  
International Protection ◽  
Western Nation ◽  
Refugee Law ◽  
Nation States ◽  
Global North ◽  
International Refugee Law

The European migrant crisis of 2015 brought to light the urgent need for solidarity and responsibility-sharing in dealing with large influxes of people fleeing war, conflict and persecution. This spirit was captured in two subsequent international agreements: the Global Compact on Refugees (GCR) (2018) and the Global Compact for Safe and Orderly Migration (GCM) (2018). In the midst of a very different kind of crisis - the global COVID-19 pandemic - the need for solidarity and responsibility-sharing is all the more imperative as COVID-19 has become a 'risk multiplier' for asylum seekers, compounding existing drivers. By examining how Western nation states in the global North have responded to asylum seekers during the pandemic against the backdrop of existing international refugee law, practice, and policy, this essay seeks to evaluate the normative potential of the GCR and the GCM for the entrenchment of the principle of solidarity. Employing the theoretical framework of governmentality, it argues that despite the rhetoric of responsibility-sharing, the reactions of Western nation states reflect an existing trend toward exclusionary impulses, with countries reflexively reverting to patterns of state-centric, insular protectionism. Taking these issues into consideration, the essay goes on to focus on Canada's response to the COVID-19 pandemic in light of its proximity to and relationship with the United States to illustrate how biopower is being deployed to exclude in line with neoliberal rationalities, even in a country that is usually heralded as a beacon of humanitarianism. The essay concludes with a guarded diagnosis that warns of the potential for an international protection crisis should civil society fail to challenge prevailing biopolitics. Keywords: COVID-19, Asylum Seekers, Refugees, Solidarity, Responsibility-sharing, Governmentality, Biopower, Neoliberal, Canada, United States

27. International refugee law

2017 ◽  
Author(s):  
Alice Edwards
Keyword(s):  
Human Rights ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Refugee Status ◽  
International Human Rights ◽  
Refugee Law ◽  
International Human ◽  
International Refugee Law ◽  
Definition Of ◽  
The Relationship

This chapter first explains the purpose and scope of international refugee law. It then identifies the five fundamental elements of the Refugee Convention, and discusses other important parameters of international refugee law more broadly. The chapter explores the relationship between international refugee law and human rights law at the macro-level. It analyses specific aspects of refugee law—namely, the definition of a refugee, the prohibition of refoulement, refugee rights, and the ending of refugee status and solutions—and analyses how international human rights law informs them.

scholarly journals The Asylum Claim Determination

2021 ◽  
pp. 259-330
Author(s):  
Carmelo Danisi ◽  
Moira Dustin ◽  
Nuno Ferreira ◽  
Nina Held
Keyword(s):  
International Standards ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Refugee Status ◽  
Human Right ◽  
International Human Rights ◽  
International Protection ◽  
Link Type ◽  
The Uk ◽  
The Right

AbstractPublic international law and, more specifically, international human rights law protect the right to access an asylum determination procedure and the principle of non-refoulement, as established in Chap. 10.1007/978-3-030-69441-8_3. Some would argue that asylum should not be seen by states as their own prerogative, but rather as a fundamental human right (Díaz Lafuente, 2014, pp. 206–207). How the right to access to asylum determination and the principle of non-refoulement are implemented varies from country to country, including within the EU, as discussed in Chap. 10.1007/978-3-030-69441-8_4. Chapter 10.1007/978-3-030-69441-8_6 dissected the different procedures adopted to adjudicate SOGI claims of international protection in Germany, Italy and the UK. In this chapter, we focus on the decision itself by analysing the Refugee Status Determination (RSD) process in the three countries studied. In the process, we highlight similarities and differences, merits and shortcomings, and often inconsistencies with supranational and international standards.

scholarly journals The Substance of Solidarity: What the Response to the COVID-19 Pandemic Says About the Global Refugee Regime

2021 ◽  
Author(s):  
Magdalena Perzyna
Keyword(s):  
United States ◽  
Asylum Seekers ◽  
The United States ◽  
Global Compact ◽  
International Protection ◽  
Western Nation ◽  
Refugee Law ◽  
Nation States ◽  
Global North ◽  
International Refugee Law

The European migrant crisis of 2015 brought to light the urgent need for solidarity and responsibility-sharing in dealing with large influxes of people fleeing war, conflict and persecution. This spirit was captured in two subsequent international agreements: the Global Compact on Refugees (GCR) (2018) and the Global Compact for Safe and Orderly Migration (GCM) (2018). In the midst of a very different kind of crisis - the global COVID-19 pandemic - the need for solidarity and responsibility-sharing is all the more imperative as COVID-19 has become a 'risk multiplier' for asylum seekers, compounding existing drivers. By examining how Western nation states in the global North have responded to asylum seekers during the pandemic against the backdrop of existing international refugee law, practice, and policy, this essay seeks to evaluate the normative potential of the GCR and the GCM for the entrenchment of the principle of solidarity. Employing the theoretical framework of governmentality, it argues that despite the rhetoric of responsibility-sharing, the reactions of Western nation states reflect an existing trend toward exclusionary impulses, with countries reflexively reverting to patterns of state-centric, insular protectionism. Taking these issues into consideration, the essay goes on to focus on Canada's response to the COVID-19 pandemic in light of its proximity to and relationship with the United States to illustrate how biopower is being deployed to exclude in line with neoliberal rationalities, even in a country that is usually heralded as a beacon of humanitarianism. The essay concludes with a guarded diagnosis that warns of the potential for an international protection crisis should civil society fail to challenge prevailing biopolitics. Keywords: COVID-19, Asylum Seekers, Refugees, Solidarity, Responsibility-sharing, Governmentality, Biopower, Neoliberal, Canada, United States

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