Migration and the Rule of Law
Wednesday, 3 April 2019
Zentrales Hörsaalgebäude – ZHG, Platz der Göttinger Sieben 5, 37073 Göttingen
ESIL Interest Group on Migration and Refugee Law event in the framework of the ESIL Research Forum on ‘The International Rule of Law and Domestic Dimensions: Synergies and Challenges’
On Wednesday, 3 April 2019, the ESIL Interest Group on Migration and Refugee Law (IG MigRefLaw) organised a side-event in the framework of the ESIL Research Forum, Göttingen, which targets scholars at an early stage of their careers. This year’s theme of the Research Forum concerned the rule of law in international and domestic contexts.
The IG MigRefLaw picked up this topic by focusing on the function and implications of the rule of law in migration issues.
10:00 – 10:15 Welcome and Introduction to Panel I
10:15 – 13:00 Panel I – Migration and Asylum, the Rule of Law and Universal Values: A Multi-dimensional Analysis
Chair: Giovanni Carlo Bruno
Sebastian Meyer, The Spheres of EU Migration Management: A Challenge to the Rule of Law?
Danielle Annoni, Is There an American International Regime for the Protection of Migrants and Refugees?
Pierfrancesco Rossi, National Courts’ Contribution to the International Rule of Law in the Field of Migration: Insights from the Italian Case Law
Eleonora Frasca, Towards a Privatization of Protection? Private Sponsorship Programs in Europe and the Rule of Law
Discussants: Kristof Gombeer & Maria Varaki
14:00 – 14:15 Introduction to Panel II
14:15 – 17:00 Panel II – Migration and Asylum, the Rule of Law and the Refugee Crisis: European Exceptionalism versus National Approaches
Chair: Daniela Vitiello
Marguerite Guiresse, La jurisprudence du principe de confiance mutuelle et le système commun européen d’asile : Efficacité et/ou Etat de droit ?
Emmanuelle Rigaud, L’Etat de droit et les agences européennes en matière d’asile
Monica Parodi, The Respect of the Rule of Law in the EU Member States’ Legislation on Asylum: Which Role for the EU?
Themistoklis Tzimas, The “Hotspots” Approach and the Rule of Law: The “Greek” Experience in Relation to Mass, Administrative Detention
Giorgia Lo Tauro, Giuliana Quattrocchi, Managing Migration Flows at the European Union Borders. The Role of Bosnia and Herzegovina Dealing with the Refugee Crisis in the Western Balkans
Discussants: Adriana Di Stefano & Giovanni Carlo Bruno
Interest Group event, Manchester (September 2018)
IG Pre-conference workshop, Naples (13 September 2018): “The Shaping Up of the UN Global Compacts on Migration and Refugees. Progression towards or retreat from a universal agenda?”
On the occasion of the 14th ESIL Annual Conference on International Law and Universality, the Interest Group on Migration and Refugee Law organised a workshop on ‘The Shaping Up of the UN Global Compacts on Migration and Refugees: Progression towards or retreat from a universal agenda?
After the publication of the first drafts of the Global Compact on Safe, Orderly and Regular Migration and the Global Compact on Refugees earlier this year, negotiations are now ongoing on the two key instruments of future universal migration and asylum governance. The latest round of negotiations on the Global Compact on Migration took place between 14 and 18 May in the UN Headquarters in New York. After subsequent rounds of talks, the final draft will be submitted for adoption to the Intergovernmental Conference that will be held in Morocco in December 2018. Following consultations, the Global Compact on Refugees will be presented in the UN High Commissioner for Refugees’ 2018 Annual Report to the General Assembly.
In line with the theme of the 14th ESIL Annual Conference, this Workshop intended to contribute to the academic debate on the universal and regional impact of the New York Declaration and the Global Compacts, including its legal transformative power. It discussed papers exploring whether and how the progression towards a new era of global governance of mass migration and refugee flows is capable of enhancing the universality of the fundamental rights agenda or diluting consolidated principles and rules of migration and refugee law, alongside with questions on international responsibility of various actors involved in dealings with migrants and refugees. The Workshop will host two thematic panels: one on migration-related matters, the other one on refugee and asylum matters.
9.00 – 9.10 Welcome and introduction
Daniela Vitiello (University of Florence), Kristof Gombeer (VUB; Leiden Law School)
9.10 – 10.30 Panel 1: The Global Compact on Safe, Orderly and Regular Migration
This panel will focus on new cooperative strategies and techniques in the field of migration management, with a view to assess the potential for change of the call for a safe, orderly and regular migration. The identification of advantages and pitfalls of the new course, and its capacity to strike a better balance between aliens’ rights and states’ sovereign prerogatives, paired with issues of international responsibility for breaches of law, will be key to this discussion.
Chair: Tamás Molnár (Corvinus University Budapest; EU Agency for Fundamental Rights)
Discussant: Andrea Spagnolo (University of Turin)
Giovanni Carlo Bruno (National Research Council, Italy), “Available pathways for regular migration: low-skilled migrants, fundamental rights, and the Global Compact”
Marion Panizzon (University of Bern; NCCR), “A Governance Analysis of the Global Compact for Safe, Orderly and Regular Migration: Sovereign Shift, Organize Cooperation & Restate Rights”
10.30 – 11.00 Coffee break (exhibition space)
11.00 – 12.30 Panel 2: The Global Compact on Refugees
This panel will focus on the international legal backbone on the protection of refugees and asylum seekers, discussing whether the renewed narrative is leading to an evolution or revolution in the global and/or regional understanding of basic legal concepts and principles of refugee law, such as: surrogate protection, non-refoulement, non-penalisation for irregular entry, burden-sharing and solidarity. The identification of evolutive trends in international case-law will be key to this discussion.
Chair: Tom Syring (Human Rights Research League, Oslo)
Discussant: Nicole Lazzerini (University of Florence)
Chao Yi (McGill University), “Root Causes and Burden/Responsibility-Sharing: Where Are the Countries of Origin in The Global Compact on Refugees?”
Maria Varaki (King’s College London), “Ethical leadership and Global Compacts. A test of phronesis and humanity”
Interest Group event, Naples (September 2017)
IG Pre-conference workshop, Naples (6 September 2017): “The Future of International Migration Law”
Interest Group members (left to right) at the ESIL Annual Conference, Naples: Rebecca Stern, Dana Schmalz, Kristof Gombeer, Giovanni Carlo Bruno, Tom Syring, Daniela Vitiello, Ana Beduschi
The 13th Annual Conference of the European Society of International Law (Naples, 2017) explored how international law has responded, or can or should respond, to the fundamental challenge of defining and regulating global public goods, global commons and fundamental values. The pre-conference workshop organised by the ESIL Interest Group on Migration and Refugee Law (MigRefLaw) focused on the realisation of the global public good and fundamental value of international protection of forcibly displaced individuals and the benefits of safe, regular and orderly migration to all actors involved.
Within the 250 million international migrants globally, about 65.6 million people are forcibly displaced. The situation in and around the arena of the Mediterranean has been labelled as a “crisis”, an “emergency”. This emergency does not take place in a legal void. To the contrary: the overall picture that emerges is one of multiple levels of governance, actors and legal regimes. Law making and law enforcement as well as humanitarian efforts take place in a global and EU context of treaties and regulations; a framework whose complexity is augmented by a myriad of national immigration and asylum regimes. Under the broad title of ‘the future of international migration law’, i.e. the body of law and the accompanying governance levels and actors sketched above, the IG MigRefLaw workshop investigates how these multiple levels and legal regimes interact, and how this affects the provision of international protection.
The workshop panels approached this topic from mainly two angles. Panel 1 discussed whether – and if so, how – a multi-layered and fragmented landscape of actors and legal regimes affects international protection: does a fragmentation of legal tools and policies lead to differences in the level of protection and hence threaten the provision of this public good? Or can legal regimes complement each other and enhance protection? Are there any newcomers or actors of increasing significance? What role is there for the different actors in the field in the provision of international protection and how do they interact? Nula Frei (Fribourg) looked at the interaction between international and European anti-trafficking law, on the one hand, and the asylum system based on the 1951 refugee convention, EU Directives and national laws, on the other hand, with the aim of setting out how asylum procedures must be designed to be in conformity with the international obligations of victim of human trafficking protection. In light of the recent transformation of Frontex into the European Border and Coast Guard Agency, Daniela Vitiello (Roma 3) explored the potential contribution of this EU Agency’s new configuration to the legal conceptualisation of the European Integrated Border Management. Finally, Chao Yi(McGill) questioned whether treaty interpretation can function as a legitimising foundation of the Internal Relocation Principle under refugee and human rights law treaties.
Panel 2 provided a platform for the presenters to focus on what they signal as peculiarities and new challenges in the ongoing responses to the emergency and in what one could call an emerging body of international migration law. Ana Beduschi (Exeter) analysed the potential as well as caveats of using big data technologies to prevent migrants’ deaths at sea and to protect individuals against ill-treatment and trafficking from a human rights law perspective. Subsequently, Gail Lythgoe (Glasgow) discussed the spatial assumptions of international refugee law and illustrates how states use techniques such as moving borders, ‘offshoring’ administrative decision making, creating corridors and excising land to serve political agendas. Lastly, Ralph Wilde (UCL) talked about the relationship between an expanding scope of legal protection of migrants, on the one hand, and a diminishing willingness of states to provide protection, on the other hand, using the example of the extra-territorial application of the non-refoulement principle.
Welcome speech by Giovanni Carlo Bruno of the Italian Institute for Research on Innovation and services for Development (Consiglio Nazionale delle Ricerche)
Panel 1 (L > R): Kristof Gombeer, Nula Frei, Daniela Vitiello, Chao Yi
Panel 2 (L > R): Tom Syring, Ana Beduschi, Gail Lythgoe, Ralph Wilde
13.00 – 13.15 Introduction by Interest Group conveners
13.10 – 13.30 Welcome speech by Giovanni Carlo Bruno
13.30 – 15.45 Panel 1: ‘De-Fragmenting Paradigms in EU Migration and Asylum Governance: New Pathways to International Protection or Rising Threats to Global Public Goods?’
Moderator: Kristof Gombeer (VU Brussel / Leiden University)
- Nula Frei (University of Fribourg)
‘Protecting Victims of Human Trafficking in Asylum Procedures’
- Daniela Vitiello (Roma Tre University; NCCR – On the Move)
‘The “agentification” of the EU-ropean integrated border management as a key component of the EU’s externalisation toolkit. From Frontex to the European Border and Coast Guard Agency’
- Chao Yi (McGill University)
‘Finding a Plausible Legitimizing Foundation of the Internal Relocation Principle under Refugee and Human Rights Treaties’
15.45 – 16.00 Coffee break
16.00 – 18.00 Panel 2: ‘(Ab)normalities of international migration and refugee law: challenges and innovations’
Moderator: Tom Syring (Norwegian Immigration Appeals Board)
- Ana Beduschi (University of Exeter)
‘The Big Data of International Migration: Challenges and Obligations for States under International Human Rights Law’
- Gail C. Lythgoe (University of Glasgow)
‘Rethinking the Spatial Assumptions of International Refugee Law’
- Ralph Wilde (University College London)
AAIL-ESIL event (October 2016)
On 14 October 2016, ESIL and the African Association of International Law (AAIL) coorganized a well-received conference on “International Legal Aspect of Migration: African and European Perspectives”. The conference generously funded by the Ministry of Security and Justice of the Netherlands and co-sponsored by the American Society of International Law (ASIL), brought together speakers from 12 countries, more than half of them from Africa. In order to accommodate francophone speakers and attendees, English-French interpretation services were provided throughout the day. The conference was organized around four panels, covering Foundational Issues, including the drivers of irregular migration, African and European Perspectives on Recent “Safe (Third) Country” Debates, including the increasing securitization of migration and asylum law in Europe, Multilateral Dependencies and Migration Management, and The End of the Journey – International Legal Obligations Regarding Resettlement, Relocation, and Return. After a day full of engaged discussion among the panelist as well as the audience, the general sentiment expressed in the various concluding remarks was that hopefully this conference was not only the first time AAIL and ESIL cooperated, but that it may be the start of a series of cooperation between the sister organizations in order to foster fruitful and much needed dialogue in areas of mutual concern.
More info about the AAIL-ESIL event can be found here: AAIL-ESIL Conference Booklet.
EJIL: Talk! – Symposium on the (Ab)normality of Migration and the Legal Position of Migrants (May 2015)
In May 2015, the Interest Group (IG) on Migration and Refugee Law in close cooperation with EJIL: Talk! launched its first blog symposium under the impetus of IG founding members Isabelle Swerrissen, Lisa-Marie Komp and Evelien van Roemburg. In the blog symposium, the IG focuses on the idea that, despite the normalcy of migration, states have come to treat it more and more as an abnormality in recent times. Many policies bear testimony to this development; one need only think of increasing restrictions on family reunification, measures of migration-related detention, and the introduction of civic integration tests. At the same time, countries crucially depend on migration, either upon the (un)skilled workforce it delivers, or upon the revenue it creates. Policies introduced therefore aim to limit and shape migration, so that only ‘the wanted’ embark on the journey. The person of the migrant is the object of such limiting, discouraging and selective policies.
Three members of the interest group took on this overarching topic in their contributions to the blog symposium, each in their own way. Juan Amaya-Castro kicks off the blog symposium. He argues that international migration law is “about selecting among potential or prospective migrants” and that it therefore provides a “license to discriminate” on the basis of economic worth. In the next post, Nikolaos Sitaropoulos counters this argument by saying that it “confuses differential with discriminatory treatment”. With reference to the case law of the Strasbourg Court, he shows that human rights provide a “protective layer” against discriminatory treatment. Concluding the blog symposium is Francesca Pizzutelli, who takes the potential for protection even further. She discusses “three types of limitations on state sovereignty with respect to migration”.
Panel discussion (May 2014)
On 16 May 2014, the Interest Group on Migration and Refugee Law of the European Society of International Law, the Centre for Migration Law of the Radboud University Nijmegen and the Amsterdam Center for International Law of the University of Amsterdam organized ‘Heading to Europe: Safe Haven or Graveyard?’, a panel discussion on migration by sea in the Mediterranean. The panel discussion was held at the Radboud University Nijmegen (CPO-zaal, Spinozagebouw, Montessorilaan 3, Nijmegen).
The year of 2013 has demonstrated that the tragedy of thousands of migrants and refugees drowning on the shores of Europe is now a common occurrence. The fate of those who perished near the Italian island of Lampedusa has brought the urgency of the situation into focus. The aim of the panel discussion is to provide an overview of the legal rules and processes applicable to migration by sea in the Mediterranean and to reflect on their wider sociological implications.
The panel discussion consists of two panels, each followed by a plenary discussion. In the first panel, legal experts working in the field of academia and at stakeholder organizations (e.g. UN Refugee Agency, Council of Europe, European Union) focus on legal aspects of boat migration in the Mediterranean. The second panel brings together scholars and practitioners with first-hand experience from transit countries to discuss the sociological effects of the legal rules and processes. Click here for the complete program, and here for more information on the panelists.
The organizing partners cordially invite interested scholars, governments officials, practitioners and advanced students to join in the panel discussion ‘Heading to Europe: Safe Haven or Graveyard?’. Active participation in the discussion is strongly encouraged. Participation is free of charge. For participation, please register at the bottom of this page. The deadline for registration is Tuesday 13 May 2014. For inquiries, please contact Lisa-Marie Komp at email@example.com.
“People Will Come No Matter What”
On 16 May 2014, the Interest Group on Migration and Refugee Law of the European Society of International Law, in close cooperation with the Centre for Migration Law of the Radboud University Nijmegen and the Amsterdam Center for International Law of the University of Amsterdam, organized a panel discussion on migration by sea in the Mediterranean, entitled ‘Heading to Europe: Safe Haven or Graveyard?’. The panel discussion, which took place in Nijmegen, brought together approximately 50 scholars, government officials and practitioners working in the field of migration and refugee law and policy.
In the weeks preceding the panel discussion, a string of boat tragedies occurred in the Mediterranean in which more than 100 migrants and refugees are believed to have perished. The frequency with which such tragedies take place, demonstrates the urgency of the situation and sparked the idea of organizing a panel discussion on the topic. The aim of the panel discussion was two-fold: first, to provide an overview of the existing and developing legal framework applicable to migration by sea in the Mediterranean and, second, to reflect on the wider sociological implications of that legal framework.
The first panel on the legal aspects of migration by sea in the Mediterranean was kicked off by Maarten den Heijer. He gave a presentation about the latest Frontex regulation on maritime surveillance operations. It was welcomed for including binding rules on search and rescue. However, in terms protection, disembarkation and accountability, much is still left to be desired. Next was Tineke Strik, who spoke about her investigation into the‘left-to-die boat’. She made a series of recommendations to prevent similar incidents from happening in the future, such as avoiding differing intepretations of what constitutes distress, taking away reasons for not rescuing boats and intensifying effort to share the burden placed on frontline states. Marcin Pruss, who closed the first panel, argued that, despite the numerous calls for improvements to the legal framework, it was not likely that new legal avenues for protection would be adopted.
The second panel, during which the sociological aspects of migration by sea in the Mediterranean were discussed, commenced with a presentation from Joris Schapendonk. His research into the trajectories of Sub-Saharan African migrants shows that they don’t travel in a straight line. Rather, legal developments, such as the conclusion of bilateral agreements, play into the the number and direction of migrant flows. Mirjam van Reisen, who spoke next, explains that this is the reason why, after the signing of the Italy-Libya agreement, human trafficking via the Sinai increased significantly. According to Aspasia Papadopoulou, who brought the second panel to a close, this goes to show that “people will come no matter what”. Therefore, it is important to have legal avenues so that migrants and refugees will not continue to head to Europe whilst risking their lives.
At the end of the panel discussion, Elspeth Guild offered some concluding remarks. According to her, the panel discussion has made it clear that the legal rules do not always have the intended effect of decreasing the number of arrivals to Europe. Therefore, we should critically reflect on the legal framework, bearing in mind that the developments at the external borders cannot be viewed in isolation. Rather, they must be seen as an integral part of the decision to create a Europe without borders. Instead of trying to displace responsibility onto human traffickers, member states should take responsibility for creating a Europe where there is need for border control measures in the Mediterranean.