Human rights violations in the context of migration deals have received considerable attention, especially when it comes to more frequently explored human rights such as the principle of non-refoulement, the right to life, and the prohibition on torture. However, such deals also have a negative impact on the socio-economic rights of people on the move, who often live in dire conditions and lack access to education, health care, and work. This article therefore seeks to answer the following question: to what extent do European Union Member States have obligations under the International Covenant on Economic, Social and Cultural Rights towards people on the move contained in third countries as a result of migration deals? The analysis shows that EU Member States may have two types of obligations and examines their nature and scope. First, EU Member States have direct obligations when exercising extraterritorial jurisdiction. This is the case when they can take reasonable measures to avoid reasonably foreseeable human rights violations that result from migration deals. Secondly, they may also have global obligations within the framework of international assistance and cooperation. While the nature and scope of these obligations remain unclear, this article explores whether EU Member States have an obligation to provide international assistance and cooperation to third countries that host people on the move as a result of migration deals. It also examines whether EU Member States can comply with their obligations of international assistance and cooperation by cooperating with third countries on migration control. The article uses the examples of European migration deals with Turkey and Libya to illustrate the analysis.
{"title":"Migration Deals Seen through the Lens of the ICESCR","authors":"Annick Pijnenburg","doi":"10.1093/ijrl/eead010","DOIUrl":"https://doi.org/10.1093/ijrl/eead010","url":null,"abstract":"\u0000 Human rights violations in the context of migration deals have received considerable attention, especially when it comes to more frequently explored human rights such as the principle of non-refoulement, the right to life, and the prohibition on torture. However, such deals also have a negative impact on the socio-economic rights of people on the move, who often live in dire conditions and lack access to education, health care, and work. This article therefore seeks to answer the following question: to what extent do European Union Member States have obligations under the International Covenant on Economic, Social and Cultural Rights towards people on the move contained in third countries as a result of migration deals? The analysis shows that EU Member States may have two types of obligations and examines their nature and scope. First, EU Member States have direct obligations when exercising extraterritorial jurisdiction. This is the case when they can take reasonable measures to avoid reasonably foreseeable human rights violations that result from migration deals. Secondly, they may also have global obligations within the framework of international assistance and cooperation. While the nature and scope of these obligations remain unclear, this article explores whether EU Member States have an obligation to provide international assistance and cooperation to third countries that host people on the move as a result of migration deals. It also examines whether EU Member States can comply with their obligations of international assistance and cooperation by cooperating with third countries on migration control. The article uses the examples of European migration deals with Turkey and Libya to illustrate the analysis.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46223078","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Statelessness Determination Procedures and the Right to Nationality: Nigeria in Comparative Perspective","authors":"O. Enigbokan","doi":"10.1093/ijrl/eead018","DOIUrl":"https://doi.org/10.1093/ijrl/eead018","url":null,"abstract":"","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139371686","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Administrative Law in Action: Immigration Administration","authors":"Helen Toner","doi":"10.1093/ijrl/eead017","DOIUrl":"https://doi.org/10.1093/ijrl/eead017","url":null,"abstract":"","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139371810","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Protection from Refuge: From Refugee Rights to Migration Management","authors":"Maja Grundler","doi":"10.1093/ijrl/eead019","DOIUrl":"https://doi.org/10.1093/ijrl/eead019","url":null,"abstract":"","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139371503","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Summary Since the beginning of 2021, 60 new emergencies have been declared by the Office of the United Nations High Commissioner for Refugees (UNHCR) in 39 different countries. Conflict, violence and persecution, which at times intersect with disasters and the effects of climate change, have contributed to record numbers of forcibly displaced persons. In often insecure conditions, and despite the coronavirus disease (COVID-19) pandemic, UNHCR and partners were able to “stay and deliver” and to support States in providing protection and assistance to refugees, asylum-seekers, returnees, the internally displaced and stateless persons across the world. UNHCR strives to promote respect for the rights of these populations on a non-discriminatory basis. This includes the fundamental right to seek and enjoy asylum, adequate standards of treatment and the fulfilment of certain safeguards, as reflected in relevant legal instruments. However, access to rights is hindered for many and exacerbated by factors such as a lack of fair and effective asylum or statelessness determination procedures, the unavailability of legal information, advice and representation, and denial of access to services. This note outlines the challenges involved and the strategies employed by governments, UNHCR and partners to realize access to rights. It underscores the importance of solutions to displacement and highlights the opportunities created by the Global Compact on Refugees, with its emphasis on international cooperation, burden- and responsibility-sharing, and multi-stakeholder engagement.
{"title":"Note on International Protection","authors":"","doi":"10.1093/ijrl/eeac044","DOIUrl":"https://doi.org/10.1093/ijrl/eeac044","url":null,"abstract":"Summary Since the beginning of 2021, 60 new emergencies have been declared by the Office of the United Nations High Commissioner for Refugees (UNHCR) in 39 different countries. Conflict, violence and persecution, which at times intersect with disasters and the effects of climate change, have contributed to record numbers of forcibly displaced persons. In often insecure conditions, and despite the coronavirus disease (COVID-19) pandemic, UNHCR and partners were able to “stay and deliver” and to support States in providing protection and assistance to refugees, asylum-seekers, returnees, the internally displaced and stateless persons across the world. UNHCR strives to promote respect for the rights of these populations on a non-discriminatory basis. This includes the fundamental right to seek and enjoy asylum, adequate standards of treatment and the fulfilment of certain safeguards, as reflected in relevant legal instruments. However, access to rights is hindered for many and exacerbated by factors such as a lack of fair and effective asylum or statelessness determination procedures, the unavailability of legal information, advice and representation, and denial of access to services. This note outlines the challenges involved and the strategies employed by governments, UNHCR and partners to realize access to rights. It underscores the importance of solutions to displacement and highlights the opportunities created by the Global Compact on Refugees, with its emphasis on international cooperation, burden- and responsibility-sharing, and multi-stakeholder engagement.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138543706","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The determination of asylum seekers’ nationality, or lack thereof, is a key component of assessments of applications for international protection, and can prove difficult when asylum seekers do not submit any valid identity or travel documents, or are stateless or at risk of statelessness. This article investigates how nationality status determination is relevant and how it is regulated in the Common European Asylum System (CEAS) and in the ‘New Pact on Migration and Asylum’ (the Pact), that is currently under negotiation in the European Union (EU). Under the CEAS, the determination of nationality is not only critical to assessing whether the applicant qualifies for international protection, but can also determine the type of procedure through which their application is examined, and accordingly the level of procedural guarantees to which they are entitled. Under the Pact, with the introduction of a pre-entry screening and the obligation to process asylum applications lodged by individuals from countries with low recognition rates through border procedures, the determination of the applicant’s nationality becomes even more critical. In fact, the Pact institutionalizes the channelling of asylum seekers into substandard procedures based on their nationality, a practice that has been widely used in ‘hotspots’ in Greece and Italy. This is even more problematic considering that the Pact, like the current CEAS, provides only very general rules relevant to establishing a claimant’s nationality status. This article sheds light on an overlooked aspect of asylum procedures, and calls for the development of specific guidance on nationality status determination in asylum procedures at the EU level.
{"title":"Nationality Status Determination in Asylum Procedures under the CEAS and the Potential Impact of the ‘New Pact on Migration and Asylum’","authors":"Cecilia Manzotti","doi":"10.1093/ijrl/eead006","DOIUrl":"https://doi.org/10.1093/ijrl/eead006","url":null,"abstract":"\u0000 The determination of asylum seekers’ nationality, or lack thereof, is a key component of assessments of applications for international protection, and can prove difficult when asylum seekers do not submit any valid identity or travel documents, or are stateless or at risk of statelessness. This article investigates how nationality status determination is relevant and how it is regulated in the Common European Asylum System (CEAS) and in the ‘New Pact on Migration and Asylum’ (the Pact), that is currently under negotiation in the European Union (EU). Under the CEAS, the determination of nationality is not only critical to assessing whether the applicant qualifies for international protection, but can also determine the type of procedure through which their application is examined, and accordingly the level of procedural guarantees to which they are entitled. Under the Pact, with the introduction of a pre-entry screening and the obligation to process asylum applications lodged by individuals from countries with low recognition rates through border procedures, the determination of the applicant’s nationality becomes even more critical. In fact, the Pact institutionalizes the channelling of asylum seekers into substandard procedures based on their nationality, a practice that has been widely used in ‘hotspots’ in Greece and Italy. This is even more problematic considering that the Pact, like the current CEAS, provides only very general rules relevant to establishing a claimant’s nationality status. This article sheds light on an overlooked aspect of asylum procedures, and calls for the development of specific guidance on nationality status determination in asylum procedures at the EU level.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47713532","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The 1951 Convention relating to the Status of Refugees (Refugee Convention) provides protection for people with a well-founded fear of persecution who find themselves outside their country of nationality. The treaty not only sets out a legal status for those recognized as refugees by the country of asylum, but also certain civil, political, social, and economic rights throughout the refugee status determination process. Yet, despite being faced with the highest numbers of displaced people since the Second World War, States parties to the Refugee Convention routinely fail to meet the standards set out by the Convention. This article explores how domestic courts enforce treaty compliance not as a matter of international law, but rather by using the concept of constitutional dignity. The discussion examines how constitutional courts around the world have used dignity as both a substantive right and a functional standard in order to fulfil the promises of the Refugee Convention. The article concludes with an argument for dignity as a powerful tool to fill gaps in refugee protection globally.
{"title":"Dignity Deployed: An Examination of Refugee Rights through Domestic Dignity Jurisprudence","authors":"Rebecca J Garfinkel","doi":"10.1093/ijrl/eead003","DOIUrl":"https://doi.org/10.1093/ijrl/eead003","url":null,"abstract":"\u0000 The 1951 Convention relating to the Status of Refugees (Refugee Convention) provides protection for people with a well-founded fear of persecution who find themselves outside their country of nationality. The treaty not only sets out a legal status for those recognized as refugees by the country of asylum, but also certain civil, political, social, and economic rights throughout the refugee status determination process. Yet, despite being faced with the highest numbers of displaced people since the Second World War, States parties to the Refugee Convention routinely fail to meet the standards set out by the Convention. This article explores how domestic courts enforce treaty compliance not as a matter of international law, but rather by using the concept of constitutional dignity. The discussion examines how constitutional courts around the world have used dignity as both a substantive right and a functional standard in order to fulfil the promises of the Refugee Convention. The article concludes with an argument for dignity as a powerful tool to fill gaps in refugee protection globally.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48229239","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The inclusion of asylum seekers within the scope of European Union (EU) readmission agreements signed with third countries remains contentious, especially considering that these agreements are instruments for removing irregular migrants to countries of origin or transit and do not regulate the responsibility for assessing asylum claims. Yet, the expulsion of asylum seekers from the EU to third countries is realized through a procedure whereby Member States are allowed the possibility of labelling third countries ‘safe’ according to criteria set out in EU law. The applications of asylum seekers arriving from safe third countries to the jurisdiction of the EU are deemed ‘inadmissible’, thus absolving Member States from assessing the applications on merit and enabling States to include asylum seekers within the scope of readmission agreements as irregular migrants. This article contends that the unique features of the EU–Turkey Readmission Agreement do not allow this practice in light of the main principles of international law, even assuming that Turkey can be labelled a ‘safe third country’. These features include treaty provisions obligating the sending State to make every effort to remove persons to their countries of origin, as well as Turkey’s explicitly declared position during the signing of the Agreement, which interprets the scope of the Agreement as not including asylum seekers. However, readmission of asylum seekers has taken place between the EU and Turkey through the EU–Turkey Statement of 18 March 2016 on the legal basis of the bilateral Greece–Turkey Readmission Agreement. It is argued that the EU’s attempts to institute the EU–Turkey Readmission Agreement as the legal basis for readmission of asylum seekers are destined to fail, due to the legal impossibility stemming from the said unique treaty provisions, as well as the absence of any indication from Turkey that it intends to change its initial official position in this regard.
{"title":"On the Removal of Asylum Seekers to Third Countries and the Scope of the EU–Turkey Readmission Agreement","authors":"Hakkı Onur Arıner, Y. Kader","doi":"10.1093/ijrl/eead001","DOIUrl":"https://doi.org/10.1093/ijrl/eead001","url":null,"abstract":"\u0000 The inclusion of asylum seekers within the scope of European Union (EU) readmission agreements signed with third countries remains contentious, especially considering that these agreements are instruments for removing irregular migrants to countries of origin or transit and do not regulate the responsibility for assessing asylum claims. Yet, the expulsion of asylum seekers from the EU to third countries is realized through a procedure whereby Member States are allowed the possibility of labelling third countries ‘safe’ according to criteria set out in EU law. The applications of asylum seekers arriving from safe third countries to the jurisdiction of the EU are deemed ‘inadmissible’, thus absolving Member States from assessing the applications on merit and enabling States to include asylum seekers within the scope of readmission agreements as irregular migrants. This article contends that the unique features of the EU–Turkey Readmission Agreement do not allow this practice in light of the main principles of international law, even assuming that Turkey can be labelled a ‘safe third country’. These features include treaty provisions obligating the sending State to make every effort to remove persons to their countries of origin, as well as Turkey’s explicitly declared position during the signing of the Agreement, which interprets the scope of the Agreement as not including asylum seekers. However, readmission of asylum seekers has taken place between the EU and Turkey through the EU–Turkey Statement of 18 March 2016 on the legal basis of the bilateral Greece–Turkey Readmission Agreement. It is argued that the EU’s attempts to institute the EU–Turkey Readmission Agreement as the legal basis for readmission of asylum seekers are destined to fail, due to the legal impossibility stemming from the said unique treaty provisions, as well as the absence of any indication from Turkey that it intends to change its initial official position in this regard.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43793146","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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