Netherlands International Law Review最新文献

Environmental emergencies are increasingly the subject of debate. As defined in this article, these emergencies start on a State’s territory but can have consequences beyond its borders. The interconnectedness of the environment and the growing concern about environmental threats lead to the question of whether third States might have a legal interest in some of these environmental emergencies. It triggers a debate similar to past debates on human rights violations, resulting in the Responsibility to Protect. This article investigates the circumstances under which States can lawfully intervene without using force in another State in response to environmental emergencies. By analysing the principle of non-intervention and the effect of international environmental law on the scope of the domaine réservé, the article discusses whether certain environmental interventions can be justified under the current legal framework of the principle of non-intervention. The emphasis lies on the no-harm principle and the concept of the common concern of humankind as a means to address environmental emergencies with direct transboundary impacts or those threatening the environment at a global level. The article concludes that the no-harm principle and the concept of the common concern of humankind can potentially reduce the scope of the domaine réservé. Consequently, States’ actions in response to an environmental emergency can be lawful under the principle of non-intervention. This lawful environmental intervention has the potential to develop from an activist idea into a legal tool.

During the last few years Russia has repeatedly evoked the doctrine of the protection of nationals abroad in all cases when it has resorted to the use of force. Russia’s invocation of this doctrine has been harshly criticized, mainly because it has been deemed as a neo-hegemonic interpretation thereof. That is, several deprecating remarks over Russia’s policy have been made, given that it has treated the doctrine as a tool to achieve its neo-imperialistic goals, in essence repudiating all the legal developments that had taken place from 1945 onwards. The invasions of Georgia in 2008 and Ukraine in 2014 further resulting in Crimea’s illegal annexation, as well as the 2022 ongoing war against it, all relied more or less on the alleged danger to Russian nationals in the invaded areas. This paper will explore Russia’s invocation of the doctrine in the ongoing war against Ukraine. It will examine whether there are sufficient legal bases on these grounds, and it will demonstrate how Russia disregards the doctrine’s interpretation after the entry into force of the UN Charter promoting a hegemonic reading thereof. It will argue that the state’s policy shows the emergence of a new pattern regarding the forcible protection of its nationals abroad, which has endured for the last two decades. Finally, it will propose that continuity in such state practice is a constant threat to the former Soviet Union countries’ sovereignty, while it questions the very notion of their citizens’ nationality rights.

This article examines the role of the law of neutrality, namely the international legal regime defining the status of a State not party to an international armed conflict, in the Russian-Ukrainian armed conflict by analyzing the legal justifications offered by States and scholars with reference to the provision of weapons to the belligerents. The findings reveal that different positions could be identified ranging from an approach that reflects continuity regarding the basic premises characterizing this legal regime, to the emergence of a relevant discontinuity regarding its traditional legal contours or, finally, solutions implying its current legal irrelevance, even if on multiple occasions States have refrained from framing their positions in clear legal terms. The diminishing relevance of the law of neutrality may eventually lead to a legal order where third-party involvement in conflicts becomes more common. At the same time, the ongoing crisis of the United Nations’ collective security system and violations of its basic principles might risk making traditional interpretations of the law of neutrality a legal component of the lawfare portfolio available to States violating the prohibition on using force, thus mandating a reassessment in its interpretation.

This paper purports to extend the concept of constructive refoulement in the context of externalised migration policies. This concept has been recognised in jurisprudence at the domestic, regional and international levels, and has developed through State practice as well as the practice of regional and international organisations. In the externalisation of migration policies, constructive refoulement becomes evident in both visible and invisible prisons: the United States-Mexico partnership in the Southern Border Programme creates a situation where asylum seekers eventually abandon the hope of continuing their asylum procedures and reluctantly return to other places. The Australian offshore asylum processing system, which has been remodelled by the UK, adopts the kyriarchical system where asylum seekers themselves control their self-return to their country of origin as a result of a combined situation of severe discipline and hatred between officials and inmates as well as between the inmates themselves. Meanwhile, the EU’s Reception Conditions Directive scheme incorporates migrants in a planned destitution scenario where they are forced to choose to leave Europe due to poor socio-economic conditions. The Japanese combination of karihomen and kanrisochi also creates a planned destitute environment which compels asylum seekers themselves to seek their return by depriving them of their basic needs. Such governmentality of internalising externalisation by the Global North must be critically assessed in terms of the developing concept of constructive refoulement implied under international refugee and human rights law.

This article contests the strategic use of what I have called meta-borders. These are the array of border enforcement mechanisms implemented beyond the physical frontiers of States through different means and by different actors, for the purpose or with the effect of denying human rights protection to (unwanted) non-citizens. The ensuing ‘irresponsibilisation’ of States of destination, on whose behalf or for whose benefit the measures are executed, is anathema to the Rule of Law. My main contention is that prevailing understandings of jurisdiction and responsibility, as applied to externalised migration controls (the core feature of meta-borders), need to be revised. Currently, they allow for the emergence of a double standard, solely dependent on location, whereby the State may act abroad with impunity in relation to the human rights consequences of its conduct, exploiting geographical distance to create and legitimate ethical and legal detachment from its own wrongdoing. This article proposes an alternative model of ‘responsibilisation’ that tallies with the flexible spatiality of migration governance. The functional configuration of the meta-border is matched with an equally functional conceptualisation of jurisdiction that rejects unaccountable forms of power. The article thus problematises the localisation of the meta-border, mapping its multiple roles, modes, and dimensions, highlighting the significance of its legal manifestations, before exploring the impact of law on the de-territorialisation of the sovereign exercises of demarcation, delimitation, and exclusion that it implies. The meta-border, crafted by legal fiat, actively (re)orders space, curtailing the reach of human rights and disclaiming responsibility for related violations. To reconcile power with accountability, I advance the ‘responsibilisation’ model, premised on the acceptance that human rights, as fundamental components of the Rule of Law, track and constrain all exercises of State authority.

The externalisation of migration and border controls refers to a series of practices whereby States attempt to manage migration flows and enforce immigration policies beyond their borders, often by collaborating with other countries or non-state actors. Externalisation can involve various measures such as outsourcing border control functions, implementing agreements with neighbouring or transit countries to intercept migrants before they reach the State’s territory, and providing aid or incentives for other countries to prevent or reduce migration flows. Externalisation practices are employed to shift the burden of migration management away from the receiving state and onto other actors or territories, often to limit responsibilities and on the assumption that human rights obligations only apply territorially. In an attempt to challenge such an assumption and to frame the nature of human rights obligations in the context of externalisation practices, this article develops a taxonomy of externalisation measures and provides an overview of the jurisdictional approaches to the extraterritorial scope of human rights obligations.

Specific situational pictures are interfaces centralising continuously updated information about the situation at the external borders of the EU and dedicated to being shared with third countries. Frontex operates them and shares them through working agreements with third countries. On the basis of the information received, third countries may engage in refoulement contrary to European and international law, for which the responsibility of Frontex as the sharer of critical information must be examined. Building upon the law of non-contractual liability of the EU, this paper aims at pinpointing the technical characteristics of specific situational pictures that hamper holding Frontex responsible for the refoulements carried out by third countries on the basis of information shared. This paper argues that the principle of non-refoulement in EU law contains the obligation not to share information susceptible of leading to refoulement. Compensating the damage of people undergoing refoulement by third countries informed by specific situational pictures operated by Frontex is challenging, as the multiplicity of actors, the automation of data updates and the lack of transparency of these situational pictures blurs the lines of the attribution of responsibility.

Around the world, externalised migration controls continue to proliferate, leading to host of human rights harms for migrants. Migrants (and citizens) are being contained in states of origin and transit and denied their fundamental right to leave. However, externalisation is typically understood as preventing migrants entering state territory and accessing asylum, which has shaped litigation efforts and the rights and obligations that are invoked. Accordingly, this article seeks to demonstrate that the right to leave any country remains a largely overlooked avenue for challenging harmful externalisation practices and to highlight the important role it can play in remedying accountability gaps. It provides a broad overview of the right to leave in international law and its main contours as a starting point for considering the applicability of the right to externalisation measures. It examines the key jurisprudence concerning externalisation and the cases invoking the right to leave, including with respect to pushbacks, offshore processing, safe country arrangements, visa regimes, carrier sanctions and pullbacks, illustrating missed opportunities and positive developments. The article calls for a change in approach that recognises the great potential of the right to leave in tackling externalisation and containment, suggesting future opportunities for the right to be litigated and developed across different fora.

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.

Externalisation and the human rights violations it entails have received much attention in recent years from both advocates and academics. Since a key aspect of externalisation consists in people on the move staying in the Global South, the locus of litigation has broadened from externalising states in the Global North to also include accountability mechanisms in the Global South. Therefore, this article seeks to answer the following question: to what extent do the international and regional human rights regimes provide accountability mechanisms for violations of the human rights of people on the move in the context of externalisation? It does so through a comparison of externalisation policies in three different regions: the Mediterranean, North America and the Pacific. In each region, the analysis focuses on cooperation between an externalising state in the Global North and a neighbouring state in the Global South to illustrate the differences and similarities between the various contexts: Australia and Indonesia, the United States and Mexico, and Italy and Libya. For each context, the analysis examines the policies implemented by externalising states and their effect on the human rights of people on the move as well as states’ substantive and procedural human rights commitments under the applicable international and regional human rights regimes. While there is no ‘one size fits all’, it shows that there are only limited accountability mechanisms available to people on the move affected by the externalisation of migration control.