Migration and the Rule of (Human Rights) Law: Two ‘Crises’ Looking in the Same Mirror

Francesco Luigi Gatta
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引用次数: 5

Abstract

This article will attempt to demonstrate the interrelationship between two ‘crises’ that the European Union is facing: the so-called ‘migration’ or ‘refugee crisis’ and the crisis of the principle of the rule of law. In particular, the two crises find their point of connection in the responses to migratory flows put in place by the EU and some of its Member States. The increasing migratory pressure on European external borders has induced some governments to adopt a restrictive and security-driven approach, carried out, on the one hand, by reinforcing border controls and surveillance, and, on the other, by seeking the cooperation of non-EU countries in order to curb migratory flows, contain departures, and tackle the movements of migrants towards Europe. These ‘securitisation’ and ‘externalisation’ strategies are in contrast with the principle of the rule of law under two perspectives: on the one hand, they violate some of its essential components, such as transparency, legal and procedural certainty, democratic participation, and control; on the other, they breach the same principle insofar as they lead to severe human rights violations. As for the first aspect, migration and border control policies have been put in place by frontline States through a growing proliferation of atypical, informal, and non-transparent measures of migration governance, which, sounding ‘legal’ without actually being so, allow legislative, procedural and democratic frames to be avoided. Examples in this sense may be identified in the so-called EU-Turkey Statement or in the informal, over-simplified cooperation arrangements concluded by some EU frontline Member States with African countries, as in the case of Italy and Niger. As for the second aspect, the impact on the rule of (human rights) law of the response of some EU Member States to the migration crisis may be measured through the case law of the European Court of Human Rights and, more specifically, by considering the decisions concerning the most severe violations of migrants’ rights, including those of the prohibitions of refoulement and of collective expulsion, as well as cases of illegal detention and deprivation of liberty. Keywords: rule of law, refugee crisis, refoulement, collective expulsion, detention, European Court of Human Rights, European Union.   This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License. Suggested citation: F L Gatta, ‘Migration and the Rule of (Human Rights) Law: Two ‘Crises’ Looking in the Same Mirror’ (2019) 15 CYELP 99.
移民与(人权)法治:同一面镜子中的两个“危机”
本文将试图展示欧盟面临的两种“危机”之间的相互关系:所谓的“移民”或“难民危机”和法治原则的危机。特别是,这两个危机在欧盟及其一些成员国对移民流动的反应中找到了它们的联系点。欧洲外部边界日益增加的移民压力促使一些政府采取限制和安全驱动的方法,一方面通过加强边境控制和监视,另一方面通过寻求非欧盟国家的合作,以遏制移民流动,遏制离境,并解决移民向欧洲流动的问题。这些“证券化”和“外部化”策略在两个方面与法治原则形成了对比:一方面,它们违反了法治原则的一些基本组成部分,如透明度、法律和程序的确定性、民主参与和控制;另一方面,它们违反了同样的原则,因为它们导致严重侵犯人权。就第一个方面而言,移民和边境控制政策是由前线国家通过非典型、非正式和不透明的移民治理措施的日益扩散而实施的,这些措施听起来“合法”,实际上却不合法,从而避免了立法、程序和民主框架。这方面的例子可以从所谓的欧盟-土耳其声明或一些欧盟第一线成员国同非洲国家缔结的非正式、过于简化的合作安排中找到,例如意大利和尼日尔。至于第二个方面,一些欧盟成员国对移民危机的反应对(人权)法的影响可以通过欧洲人权法院的判例法来衡量,更具体地说,可以通过考虑有关最严重侵犯移民权利的决定来衡量,包括禁止驱回和集体驱逐的决定,以及非法拘留和剥夺自由的案件。关键词:法治、难民危机、驱回、集体驱逐、拘留、欧洲人权法院、欧盟本作品在知识共享署名-非商业-无衍生品4.0国际许可下获得许可。建议引用:F L Gatta,“移民和(人权)法律规则:两个“危机”在同一面镜子里看”(2019)15 CYELP 99。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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