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Browsing by Author "Graae, Mikaela"

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  • Graae, Mikaela (2020)
    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.