Challenging Externalization by Means of Article 4 ECHR: Towards New Avenues of Litigation for Victims of Human Trafficking?

IF 1.3 Q1 LAW Netherlands International Law Review Pub Date : 2024-04-29 DOI:10.1007/s40802-024-00254-8

Francesca Tammone

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Abstract

The externalization of migration control undermines the protection of victims of trafficking in human beings. Pushbacks and pullbacks at sea, as well as simplified or accelerated identification procedures, exacerbate the risk of trafficking and retrafficking and prevent victims from accessing the protection to which they may be entitled in European States. In this scenario, the European Court of Human Rights can play a crucial role among international bodies and courts in ensuring effective remedies for victims in case of repatriation to their countries of origin and transit. This study examines the applicability of the prohibition of slavery, servitude and forced labour enshrined in Article 4 of the European Convention on Human Rights—whose scope now undisputedly includes trafficking in human beings—in the context of the externalization of migration control. It demonstrates that litigating unlawful refoulements under Article 4 ECHR might be very worthwhile to raise awareness of migration-related risks for victims, to strengthen the legal framework of positive obligations in trafficking cases, and to ascertain violations of anti-trafficking international obligations by European States.

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通过《欧洲人权公约》第 4 条挑战外部化：为人口贩运受害者开辟新的诉讼途径？

移民控制的外部化破坏了对人口贩运受害者的保护。海上推回和撤回，以及简化或加快身份验证程序，加剧了贩运和再贩运的风险，使受害者无法获得他们在欧洲国家可能有权获得的保护。在这种情况下，欧洲人权法院可以在国际机构和法院中发挥关键作用，确保受害者在被遣返原籍国和过境国时获得有效补救。本研究探讨了《欧洲人权公约》第 4 条中禁止奴隶制、奴役和强迫劳动的规定在移民控制外部化背景下的适用性--该条款的适用范围现已无可争议地包括人口贩运。它表明，根据《欧洲人权公约》第 4 条对非法驱回提起诉讼可能非常有价值，有助于提高受害者对移民相关风险的认识，加强贩运案件中积极义务的法律框架，并查明欧洲国家违反反贩运国际义务的情况。

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来源期刊

Netherlands International Law Review LAW-

CiteScore

2.10

自引率

11.10%

发文量

期刊介绍： The Netherlands International Law Review (NILR) is one of the world’s leading journals in the fields of public and private international law. It is published three times a year, and features peer-reviewed, innovative, and challenging articles, case notes, commentaries, book reviews and overviews of the latest legal developments in The Hague. The NILR was established in 1953 and has since become a valuable source of information for scholars, practitioners and anyone who wants to stay up-to-date of the most important developments in these fields. In the subscription to the Netherlands International Law Review the Netherlands Yearbook of International Law (NYIL) is included. The NILR is published by T.M.C. Asser Press, in cooperation with the T.M.C. Asser Instituut, and is distributed by Springer International Publishing. T.M.C. Asser Instituut, an inter-university institute for Private and Public International Law and European Law, was founded in 1965 by the law faculties of the Dutch universities. The Institute is responsible for the promotion of education and research in international law.