scholarly journals Comparing European Union and Dutch asylum law procedures: Balancing efficiency and substantive examination in asylum applications

2021 ◽  
Author(s):  
◽  
Marleen Griemink
Keyword(s):  
International Law ◽  
Control Systems ◽  
Asylum Seekers ◽  
The State ◽  
Shared Responsibility ◽  
Effective Control ◽  
Refugee Status ◽  
Asylum Law ◽  
Definition Of ◽  
Balancing Efficiency

<p>Under international law refugee status is granted to those who fall within the definition of a refugee under the Refugee Convention 1951.¹ The Convention, however, does not implement any mechanisms which directly implement its principles. It is therefore up to the State to ensure that refugee rights are implemented directly. James Hathaway suggests two mechanisms to implement the Convention, namely solution-oriented temporary protection and shared responsibility among states, in order to safeguard practical access to meaningful asylum, but acknowledging that any system must take into account the self-interests of states and so must establish effective control systems and to minimize risks.² Although discussion on such proposals is beyond the ambit of this work, it is important as it shows that in the absence of any implementing or remedial mechanisms under the Convention, it is important to have a system which effectively balances the access to asylum with the interests of the State in keeping the risks and numbers of asylum seekers low.</p>

scholarly journals Comparing European Union and Dutch asylum law procedures: Balancing efficiency and substantive examination in asylum applications

2021 ◽  
Author(s):  
◽  
Marleen Griemink
Keyword(s):  
International Law ◽  
Control Systems ◽  
Asylum Seekers ◽  
The State ◽  
Shared Responsibility ◽  
Effective Control ◽  
Refugee Status ◽  
Asylum Law ◽  
Definition Of ◽  
Balancing Efficiency

<p>Under international law refugee status is granted to those who fall within the definition of a refugee under the Refugee Convention 1951.¹ The Convention, however, does not implement any mechanisms which directly implement its principles. It is therefore up to the State to ensure that refugee rights are implemented directly. James Hathaway suggests two mechanisms to implement the Convention, namely solution-oriented temporary protection and shared responsibility among states, in order to safeguard practical access to meaningful asylum, but acknowledging that any system must take into account the self-interests of states and so must establish effective control systems and to minimize risks.² Although discussion on such proposals is beyond the ambit of this work, it is important as it shows that in the absence of any implementing or remedial mechanisms under the Convention, it is important to have a system which effectively balances the access to asylum with the interests of the State in keeping the risks and numbers of asylum seekers low.</p>

International Law and Administrative Insulation: A Comparison of Refugee Status Determination Regimes in the United States, Canada, and Australia

2012 ◽  
Vol 37 (04) ◽  
pp. 933-968 ◽  
Author(s):  
Rebecca Hamlin
Keyword(s):  
United States ◽  
International Law ◽  
Control Policy ◽  
The United States ◽  
Border Control ◽  
Refugee Status ◽  
Common Definition ◽  
Political Debates ◽  
Political Interference ◽  
Definition Of

International law provides nations with a common definition of a refugee, yet the processes by which countries determine who should be granted refugee status look strikingly different, even across nations with many institutional, cultural, geographical, and political similarities. This article compares the refugee status determination regimes of three popular asylum seeker destinations—the United States, Canada, and Australia. Despite these nations' similar border control policies, asylum seekers crossing their borders access three very different systems. These differences have less to do with political debates over admission and border control policy than with the level of insulation the administrative decision-making agency enjoys from political interference and judicial review. Bureaucratic justice is conceptualized and organized differently in different states, and so states vary in how they draw the line between refugee and nonrefugee.

26. International Refugee and Migration Law

2018 ◽  
Author(s):  
Geoff Gilbert ◽  
Anna Magdalena Rüsch
Keyword(s):  
International Law ◽  
International Human Rights Law ◽  
Refugee Status ◽  
Internally Displaced ◽  
Durable Solutions ◽  
Local Integration ◽  
The Difference ◽  
And Migration ◽  
Definition Of ◽  
International Border

This chapter explores the definition of refugee status in international law, its scope and limitations and consequent protection gaps for those forcibly displaced, including internally displaced persons (IDPs), who have crossed no international border. There is no equivalent definition for migrants, but like refugees, asylum-seekers, and IDPs, international human rights law provides a framework for their protection. The chapter explains the difference between refugee status and asylum, focusing on non-refoulement in international law. It discusses the rights that are guaranteed during displacement, particularly those pertaining to detention and humanitarian relief. Given that refugee status is intended to be temporary, the final section looks at cessation and durable solutions, either following voluntary return, through local integration, or resettlement in some third State.

Asylum at Sea: The Legality of Shipboard Refugee Status Determination Procedures

2020 ◽  
Vol 32 (1) ◽  
pp. 1-27
Author(s):  
Azadeh Dastyari ◽  
Daniel Ghezelbash
Keyword(s):  
United States ◽  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
Best Practice ◽  
The United States ◽  
Human Rights Law ◽  
Refugee Status ◽  
State Practice ◽  
International Obligations

Abstract Austria and Italy have recently proposed that processing the protection claims of asylum seekers attempting to cross the Mediterranean should take place aboard government vessels at sea. Shipboard processing of asylum claims is not a novel idea. The policy has been used for many years by the governments of the United States and Australia. This article examines the relevant international law, as well as State practice and domestic jurisprudence in the United States and Australia, to explore whether shipboard processing complies with international refugee and human rights law. It concludes that, while it may be theoretically possible for shipboard processing to comply with international law, there are significant practical impediments to carrying out shipboard processing in a manner that is compliant with the international obligations of States. Current practices in the United States and Australia fall short of what is required. Nor is there any indication that the Austrian/Italian proposal would contain the required safeguards. It is argued that this is by design. The appeal of shipboard processing for governments is that it allows them to dispense with the safeguards that asylum seekers would be entitled to if processed on land. Best practice is for all persons interdicted or rescued at sea to be transferred to a location on land where they have access to effective status determination procedures and are protected from refoulement and unlawful detention.

The Dark Side of Immunity: Is There Any Individual Right for Activities Jure Imperii?

2013 ◽  
Vol 26 (1) ◽  
pp. 105-125 ◽  
Author(s):  
MATTEO SARZO
Keyword(s):  
International Law ◽  
The State ◽  
Dark Side ◽  
Individual Rights ◽  
Sensitive Questions ◽  
International Jurisdiction ◽  
State Immunity ◽  
Procedural Rule ◽  
The Icj ◽  
Definition Of

AbstractThe following contribution interprets the ICJ decision on the case Jurisdictional Immunities of the State in a broader picture. The article focuses on the cause of action underlying the domestic civil claims, i.e. the primary rules providing for individual rights. Indeed, the traditional view, which conceives immunity as a ‘procedural’ rule, vigorously upheld by the Court, is not the only way to address this topic. In our view, state immunity is a substitute for other more sensitive questions, namely the definition of ‘state’, its prerogatives, and the individuals as right holders under international law. This approach points out a different rationale under state immunity, leading to major practical consequences in terms of the assessment of international jurisdiction.

scholarly journals Doctrinal approaches to the definition of civil procedural law

2021 ◽  
pp. 82-90
Author(s):  
Olena Shtefan
Keyword(s):  
Public Relations ◽  
International Law ◽  
The State ◽  
Legal Norms ◽  
Civil Process ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Subject ◽  
The Russian Federation ◽  
Definition Of

Keywords: civil procedural law, civil process, civil proceedings, subject of civil procedurallaw The process of reforming procedural legislation, its harmonization, harmonization with theprinciples and standards of international law, as well as other processes taking place insociety and the state are the factors that affect the need to revise the doctrinal definitions of civil procedural law. One of the most developed issues in the theory of civil procedurallaw is its definition. In turn, the development of science is impossible without reviewingeven established doctrinal approaches and provisions.An analysis of the special literature, mostly educational, led to the conclusion thatscholars use approaches to the definition of the term "civil procedural law", which weredeveloped and included in the theory of civil procedural law in the 50s-60s of the twentiethcentury. Modern definitions of civil procedural law are based on the provisions of theold invalid legislation, or on the provisions of the legislation of other countries (for example,the Russian Federation). Therefore, the purpose of this study was to review the existingdefinitions in the theory of civil procedural law and their harmonization with theprovisions of current legislation of Ukraine.In the process of researching doctrinal approaches to the definition of civil procedurallaw, it was found that researchers invest in the definition of the subject, purpose of thisbranch of law, as well as additional characteristics of civil procedural law (participants,sectoral affiliation, stage, etc.).The lack of a single doctrinal approach to the definition of the subject of civil procedurallaw, which is part of the definition of civil procedural law, prompted to study thesubject of civil procedural law and propose its author's definition.Based on the provisions of current legislation, the article presents the author's definitionof civil procedural law as a branch of law, set and system of legal norms, the subjectof which are public relations arising in civil proceedings on the basis of fair, impartialand timely consideration and resolution of civil cases in order to effectively protect violated,unrecognized or disputed rights, freedoms or interests of individuals, rights and interestsof legal entities, the interests of the state.

scholarly journals Criminal Responsibility of States In International Law: Rethinking Or Permanent Abandonment of the Concept?

2021 ◽  
pp. 143-168
Author(s):  
Enis Omerović
Keyword(s):  
International Law ◽  
International Organizations ◽  
Criminal Responsibility ◽  
The State ◽  
Legal Responsibility ◽  
Crimes Against Humanity ◽  
International Crimes ◽  
International Obligation ◽  
Definition Of ◽  
Peremptory Norms

The responsibility of states and international organizations is an essential issue of contemporary international law. All other debates in this branch of law seem to follow up on this issue. In fact, whenever a state violates its international obligation, the question of the responsibility of such a state arises. However, in addition to being essential, this issue is also an extremely politically sensitive area, as only some states, guided mainly by demand for respect for their territorial sovereignty and the principle of equality of all states, are willing to accept all the consequences of such behavior in international relations with other subjects of international law, while those that consider themselves more equal than others (primus inter pares), particularly the great world powers, will be largely reluctant to accept legal responsibility for their illegal acts, and especially for the commission of international crimes in the narrow sense, which includes the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. With international organizations, the problems in this regard are perhaps even greater.In this paper we examine the meaning of further survival of the concept of criminal responsibility of states and international organizations, wanting to examine the concept and definition of criminal responsibility of transnational corporations at the international level, while in the second part of the article we try to shed a light on political-legal responsibility. In addition to the fact that this concept is probably unsustainable under international law, it seems that the approach to advocating for the criminal responsibility of the state, as well as international organizations, is unnecessary. Therefore, we should work on building and thoroughly elaborating the concept of international responsibility of the state and the international organization in the conditions of international crimes stricto sensu, in other words, serious breaches of obligations arising from peremptory norms of general international law. In this way, without creating legally unsustainable constructions, essentially the same goal would be achieved.

Utility, Publicity, and Law

2019 ◽  
Author(s):  
Gerald J. Postema
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Social Institution ◽  
Effective Control ◽  
Institution Building ◽  
Constitutional Rights ◽  
Public Philosophy ◽  
Philosophical Foundations ◽  
Theory Of Value ◽  
Definition Of

The essays in this volume offer a reassessment of Jeremy Bentham’s strikingly original legal philosophy. Early on, Bentham discovered his “genius for legislation”—“legislation” included not only law-making and code writing, but also political and social institution building and engineering of public spaces for effective control of the exercise of political power. In his general philosophical work, Bentham sought to articulate a public philosophy to guide and direct all of his “legislative” efforts. Part I explores the philosophical foundations of his public philosophy: his theory of meaning and framework for analysis and definition of key concepts, his theory of human affections and motivations, and his utilitarian theory of value. It is argued that, while concepts of pleasure and happiness play nominal roles in his theory of value, concepts of publicity, equality, and interests emerge as the dominant concepts of his public philosophy. Part II explores several dimensions of Bentham’s jurisprudence, including his radically revised command model of law, his early reflections on justice and law in adjudication, his theories of judicial evidence, constitutional rights, the rule of law, and international law. The concluding essay demonstrates the centrality of the notion of publicity in his moral, legal, and political thought. Emerging from this study is a positivist legal theory and a utilitarian moral–political philosophy that challenge in fundamental ways contemporary understandings of those doctrines.

Special Act on the Interpretation of Law – Dictates of the Time!

2020 ◽  
Vol 2 (2) ◽  
pp. 29-48
Author(s):  
I. A. Fargiev ◽  
Keyword(s):  
International Law ◽  
Theoretical Basis ◽  
The State ◽  
Theory And Practice ◽  
Law Enforcement Agencies ◽  
Constant Attention ◽  
Dialectical Relationship ◽  
The Law ◽  
Definition Of ◽  
Relationship Of

Introduction. As a result of the Russian legal reform, a new legal system was formed; an important feature of which is the power of a lawyer to interpret various forms of national and international law implemented by the state. The scientific understanding of the interpretation of the law has significant gaps which make it difficult to apply in practice. Theoretical basis. Methods. The theoretical basis of the study was the work of Russian and foreign scientists on the interpretation of law. Research methods were as follows: systematic, historical, formally logical, comparative approaches, interpretation of legal and philosophical ideas. Results. The article presents the author’s opinions on problematic issues of the theory and practice of interpretation of law, which are the subject of constant attention of legal scholars, law-makers and law enforcement agencies. The author justifies the need to adopt a special law on normative legal acts, which should give a legal definition of “interpretation of law”, establish a procedure for the interpretation of law, fix the range of subjects of interpretation and other important scientific and applied issues. Discussion and Conclusion. The term “interpretation”, in modern legislation, is used to address the issue of official clarification and explanation of the content of norms and principles of international law employed in developing a multi-level system of forms of national and/or international law, which is then implemented by the state. Other interpretations of the law, referred to as doctrinal, ordinary, professional, etc, can be called a conditional interpretation of the law. Using scientific conclusions about the dialectical relationship of law with philosophy and sociology, history and politics, economics and ideology, etc, the author came to conclusion that there is a need to adopt a special law on the interpretation of law.

Part III The Current International Law of State Immunity, 10 The Definition of the Foreign State

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
International Law ◽  
Internal Structure ◽  
The State ◽  
Legal Person ◽  
State Immunity ◽  
General Law ◽  
Foreign State ◽  
The Subject ◽  
Definition Of ◽  
Domestic Law

This chapter sets out definition of the State to which the rule of immunity applies, which is an important element in the operation of the rules and UNCSI's treatment of this subject. In conjunction with this, the chapter discusses two (of three) aspects of the State within the context of State immunity: the external attributes of the State as a legal person by reference to international law; and the internal attributes of the State, as determined by its constitutional and domestic law, which make up its internal structure comprising its organs, departments, agencies, and representatives. Both the external and internal attributes of statehood are also the subject of the general law relating to the State as a subject of international law.

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