寻求庇护者也不是香蕉:将寻求庇护者转移到第三国的限制

T. Kritzman-Amir
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摘要

尽管人员流动和货物流动有相似之处,但许多发达国家在贸易壁垒大幅下降的情况下,仍然对移民设置了很高的壁垒。然而,正如詹妮弗•戈登(Jennifer Gordon)所指出的,管理移民的双边和多边条约都是在这种较弱的全球监管拼凑中激增的。例如,发达国家在贸易或投资等其他问题上获得让步的能力导致了多边协议的扩散,而双边协议的出现是由于希望避免移民工人融入目的国。本文关注的是移民的一个特定子集——寻求庇护者——旨在解释为什么他们不应该像香蕉一样被对待。他们的权利、地位和保护,以及他们从目的地国向第三国的转移,都受到多边、区域和双边协议的监管,这些协议同时强调了货物和寻求庇护者之间的差异,同时在某些方面也将他们视为物品或商品。通过第三国协定将人“香蕉化”是这些协定强烈注重目的地国和第三国的主权利益,而不是转移对寻求庇护者和难民的影响的结果。本文认为,转移协议应要求对寻求庇护者与目的地国之间的联系进行个性化评估,避免将个人从他们与网络明显较少或根本没有网络的国家有关系和联系的地方移走。因此,第三国协议的法律效力应该通过两个问题来审查:首先,转移协议在多大程度上支持(或阻碍)寻求庇护者在选择一个将给予他们替代保护的国家方面的自主权;其次,在转移之前,考虑到全球运动,并将寻求庇护者安置在一个可以保留其有意义的关系的地方,对关系考虑给予足够重视的程度。本文承担了这项任务,最后提出了执行未来第三国转让协定的建议。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Asylum-Seekers are Not Bananas Either: Limitations on Transferring Asylum-Seekers to Third Countries
Despite the similarities between the movement of people and the movement of goods, many developed nations have maintained high barriers to migration even as barriers to trade have fallen sharply. However, as Jennifer Gordon points out, both bilateral and multilateral treaties governing migration have proliferated within this weaker global patchwork of regulation. For example, the ability of developed states to gain concessions on other matters such as trade or investment has led to the proliferation multilateral agreements, while bilateral agreements have arisen due to a desire to refrain from integrating migrant workers in destination states. This paper focuses on a particular subset of migrants—asylum-seekers— and aims to explain why they should not be treated like bananas, so to speak. Their rights, status, and protection, as well as their transfer from destination countries to third countries, are regulated by multilateral, regional, and bilateral agreements that simultaneously highlight the differences between goods and asylum-seekers while also treating them, in some ways, like objects or commodities. The “banananization” of persons through third-country agreements is a result of these agreements’ strong focus on the sovereign interests of destination and third countries instead of on the effects of the transfer on asylum-seekers and refugees. This paper argues that transfer agreements should require an individualized assessment of the connections between asylum-seekers and the destination country and refrain from removing individuals from places where they have relationships and connections to countries where they have significantly fewer networks or none at all. The legal validity of third country agreements should, therefore, be examined through two questions: First, the extent to which the transfer agreement supports (or impedes) the asylum-seeker’s autonomy in choosing a state that would grant them surrogate protection; and second, the degree to which relational considerations are given adequate weight prior to the transfer by taking into account global movements and by placing the asylum-seeker in a place where her meaningful relationships would be preserved. This article undertakes this task and concludes with recommendations for the implementation of future third-country transfer agreements.
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