Suchergebnisse

Is there still a right to seek asylum in a globalised world? Migration control has increasingly moved to the high seas or the territory of transit and origin countries, and is now commonly outsourced to private actors. Under threat of financial penalties airlines today reject any passenger not in possession of a valid visa, and private contractors are used to run detention centres and man border crossings. In this volume Thomas Gammeltoft-Hansen examines the impact of these new practices for refugees' access to asylum. A systematic analysis is provided of the reach and limits of international refugee law when migration control is carried out extraterritorially or by non-state actors. State practice from around the globe and case law from all the major human rights institutions is discussed. The arguments are further linked to wider debates in human rights, general international law and political science.

This paper starts from the encounter between a European navy vessel and a dinghy carrying boat refugees and other desperate migrants across the Mediterranean or West African Sea towards Europe. It explores the growing trend in the EU of enacting migration control at the high seas or international waters - so-called interdiction. It is argued that these forms of extraterritorial migra-tion control aim at reconquering the efficiency of the sovereign function to control migration, by trying to either deconstruct or shift correlate obligations vis-à-vis refugees and other persecuted persons to third States. In both instances, European States are entering into a sovereignty game, in which creative strategies are developed in order to reassert sovereign power unconstrained by national and international obligations. Starting from an analysis of the refugee regime itself, the paper looks at the possibilities for as-serting human rights extraterritorially, on the high seas, in foreign territorial waters and in relation to situations defined as search and rescue missions. On the basis of this, two interrelated dynamics emerge. The first concerns the legal debate surrounding the criteria for establishing extra-territorial jurisdiction. The so far restrictive interpretations applied provide a context for States to deconstruct protection responsibilities towards refugees by moving migration control outside their sovereign territory and into that of a foreign State. The second dynamic is what could be termed a growing commercialisation of sovereignty for the purpose of migration control. By negotiating access to foreign territorial waters or simply outsource the function of migration control to e.g. North and West African countries, European States are exploiting territorial principles of international law to shift and reduce refugee responsibilities.

When does the refugee encounter the State? The straightforward and traditional answer to this question would be, when arriving at the border and surrendering herself to the authorities uttering the magical word, asylum. Reality, however, only seldom conforms to this picture. Today, the person seeking asylum in the EU is much more likely to encounter the State before reaching the EU border - at the visa consulate, through the EU Immigration Liaison Officers posted at the airports of key migration transit and origin countries, during passage over the Mediterranean where navy vessels are patrolling. Alternatively, the refugee may not meet EU in persona, but through delegation, either in the form of an airline company bound by EU regulations ro carry out migration control or as a third State having in EU cooperation to perform exit border control or provide alternative protection in the region. This paper explores the growing nexus of these external or extraterritorial policies in the developing EU asylum and immigration policv. From a legal perspective, these developments create a number of challenges for ensuring the rights of asylum seekers and refugees. Looking into three contentious areas (extraterritorial jurisdiction, extraterritorial protection and extraterritorial policy implementation) it is argued that the present drive to move migration control and refugee protection outside the EU is becoming a strategic feature of the common EU asylum and immigration policy, in which States are instrumentalising the territorial principles of the present refugee regime to relieve themselves of international legal obligations and institutionalise a new ethos of ''protection lite.