Challenging Externalisation Through the Lens of the Human Right to Leave

IF 1.3 Q1 LAW
Emilie McDonnell
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引用次数: 0

Abstract

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.

从休假人权的角度质疑外部化问题
在世界各地,外部化的移民控制继续泛滥,给移民的人权造成了许多伤害。移民(和公民)被限制在原籍国和过境国,被剥夺了离开的基本权利。然而,"外部化 "通常被理解为阻止移民进入国家领土并获得庇护,这影响了诉讼工作以及所援引的权利和义务。因此,本文试图证明,离开任何国家的权利仍然是挑战有害的外部化做法的一个在很大程度上被忽视的途径,并强调它在弥补问责差距方面可以发挥的重要作用。本文概述了国际法中的离开权及其主要轮廓,以此作为考虑外部化措施是否适用离开权的出发点。文章研究了有关外部化的主要判例和援引离境权的案例,包括有关推回、离岸处理、安全国家安排、签证制度、承运人制裁和回撤的案例,说明了错失的机会和积极的发展。文章呼吁改变方法,认识到离境权在解决外部化和遏制方面的巨大潜力,并提出了未来在不同论坛对离境权进行诉讼和发展的机会。
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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来源期刊
CiteScore
2.10
自引率
11.10%
发文量
23
期刊介绍: The Netherlands International Law Review (NILR) is one of the world’s leading journals in the fields of public and private international law. It is published three times a year, and features peer-reviewed, innovative, and challenging articles, case notes, commentaries, book reviews and overviews of the latest legal developments in The Hague. The NILR was established in 1953 and has since become a valuable source of information for scholars, practitioners and anyone who wants to stay up-to-date of the most important developments in these fields. In the subscription to the Netherlands International Law Review the Netherlands Yearbook of International Law (NYIL) is included. The NILR is published by T.M.C. Asser Press, in cooperation with the T.M.C. Asser Instituut, and is distributed by Springer International Publishing. T.M.C. Asser Instituut, an inter-university institute for Private and Public International Law and European Law, was founded in 1965 by the law faculties of the Dutch universities. The Institute is responsible for the promotion of education and research in international law.
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