Browsing by Subject "non-refoulement"

International refugee law is forced to adapt to the increase of externalized migration control. States no longer stick to migration control only at their national borders. Especially developed states have introduced various externalized migration control mechanisms – seeking to control the movement of migrants at every step of their journey. By such externalization, states aim to deter unwanted migrants. The presumption behind these practices is that through them, states can avoid the legal responsibilities that flow from international refugee law and especially the principle of non-refoulement. The enforcement of such practices often results in weakened protection for refugees. The control mechanisms are designed so that migrants are effectively denied access to areas where their rights would otherwise be substantially better than in those where they are forced to stay. The thesis deals with these mechanisms as conscious and strategic decisions made by developed states to keep unwanted migrants outside their legal responsibility. The overall objective of the thesis is to challenges the presumption of states, that they can evade responsibilities by outsourcing migration control to other states. It does so by analyzing the current legal regime on the extraterritorial application of non-refoulement and state jurisdiction. The question it answers is thus, when, if ever, does extraterritorial jurisdiction and state responsibility apply if externalized migration control mechanisms have been enforced? The thesis concludes that, although externalized migration control has become the rule rather than the exception, the current legal regime does not provide comprehensive protection for refugees. Extraterritorial jurisdiction under human rights law relies on effective control over territories or individuals; because externalized migration control mechanisms often outsource the control to third states, the jurisdictional link cannot necessarily be established between the individual and the state that enforces such mechanisms. Therefore, to protect refugees effectively the thesis argues that a contemporary understanding of the rules on extraterritorial jurisdiction should be adopted. It argues that states’ reliance on externalized migration control mechanisms can be challenged by adopting an additional basis for jurisdiction – jurisdiction based on the exercise of public powers abroad. It would decrease the attractiveness of externalized practices and increase the likelihood that states commit to fulfill them in a way that respects and guarantees protection for refugees.

This study examines the use of migrants or asylum seekers as a means of pressure by States towards other States. The term ‘coercive engineered migration’ (CEM) by Kelly Greenhill, denoting cross-border population movements that are deliberately created or manipulated in order to induce political, military and/or economic concessions from a target State or States, is used as the factual framework in this study to describe the phenomenon under examination. Inspired by the recent events between Belarus and its neighbours, this study looks at a situation, where a sending State, outside the EU and CoE, is deliberately sending asylum seekers to its neighbour, the receiving State, being an EU and CoE Member State. The research question guiding this study is: ‘Can an EU and CoE member State receiving asylum seekers in connection to a situation of coercive engineered migration prevent the entry into its territory from said individuals?’ An answer is attempted via doctrinal analysis of the receiving State’s rights under the jus ad bellum and parallel obligations under international human rights law, namely obligations relating to non-refoulement and collective expulsion of aliens under the ECHR. It is submitted that a CEM situation may amount up to a use of force and where it does, in order to draw a balance between the State’s rights and the human rights of the asylum seekers, the receiving State should be able to derogate from its collective expulsion-related obligations under the ECHR and the EU Fundamental Rights Charter in order to close off a portion of its land border to defend itself against the CEM situation deliberately created by the sending State.

Tiivistelmä – Referat – Abstract In August 2017, the decades-long tension between Myanmar and its most vulnerable stateless ethnic minority group, the Rohingya, came to a head after a small faction of Rohingya militants attacked 30 police barracks along the Myanmar-Bangladesh border. In response, the Myanmar army retaliated with unmatched ferocity, systematically organising and executing a pogrom against the Rohingya and their villages. It has been estimated that within a year, approximately 1.1 million Rohingya were forced out of Northern Rakhine State to seek refuge in other countries in the region, primarily in Bangladesh, where the vast majority of whom remain to this day in squalid, under-resourced, and overpopulated refugee camps. Meanwhile, the international refugee law regime is made up of a multitude of constituent elements, ranging from international and regional instruments and organisations to bilateral agreements between states. This thesis is concerned with the extent to which the international refugee law regime is able to protect the Rohingya. The Rohingya are stranded as refugees in a region that has historically rejected the cornerstone protectionary instrument of the regime, namely, the 1951 Refugee Convention. None of the states that are currently hosting the Rohingya subscribe to the Convention. In such a stark legal vacuum, this thesis tests the reach of the regime in providing protection to the Rohingya. This thesis first studies the development of the international refugee law regime at large, underscoring the main organisations and instruments responsible for the management of refugee crises. In particular, the thesis highlights the politically motivated resettlement programmes coordinated by refugee management organisations during the latter half of its evolution, just before the establishment of the UNHCR. Here, the thesis also introduces the principle of non-refoulement as a pivotal feature of the regime, both as codified in treaty law as well as the customary international law status it enjoys generally. Next, the thesis turns to contextualising the origins of the Rohingya refugee crisis. The Rohingya share an especially volatile relationship with Burma. Thus, the thesis provides an overview of the political history of Burma, particularly emphasising the Rohingya’s steady descent into statelessness. Over the past three decades, the Rohingya’s claim to Burmese citizenship (or lack thereof) has been leveraged by Burma to justify increasingly brutal pogroms against them. Finally, the thesis examines the application of non-refoulement in the context of the 2017 Rohingya crisis. First, the thesis considers the customary law status of the principle in greater detail, and establishes the fulfilment of state practice and opinio juris. Then, the thesis examines the form and extent to which non-refoulement is applied in the context of the 2017 Rohingya refugee crisis. Having established that there is indeed a customary law of non-refoulement, the thesis confirms that the rule is binding the states in Southeast Asia, even though they are not party to any refugee convention. Finally, the thesis turns to examining scholarly contributions on the topic of refugee protection in Southeast Asia. Majority of legal scholarship tends to emphasise the availability of alternative regulatory frameworks that extend some degree of protection to refugees. However, this thesis concludes by arguing that although these alternatives offer complementary protection as part of the international refugee law regime, it is necessary to develop a bespoke regional instrument that addresses a broad spectrum of rights that protect vulnerable refugees.