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Access to Asylum

Details

  • Page extent: 310 pages
  • Size: 228 x 152 mm
  • Weight: 0.59 kg

Library of Congress

  • Dewey number: 342.08/3
  • Dewey version: 22
  • LC Classification: K3268.3 .G36 2011
  • LC Subject headings:
    • Asylum, Right of
    • Political refugees--Legal status, laws, etc
    • Law and Globalization

Library of Congress Record

Hardback

 (ISBN-13: 9781107003477)

Access to Asylum
Cambridge University Press
9781107003477 - Access to Asylum - International Refugee Law and the Globalisation of Migration Control - By Thomas Gammeltoft-Hansen
Frontmatter/Prelims

Access to Asylum

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 operate border crossings.

In this volume Thomas Gammeltoft-Hansen examines the impact of these new practices on 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 are discussed. The arguments are further linked to wider debates in the fields of human rights, general international law and political science.

Thomas Gammeltoft-Hansen is Research Fellow at the Danish Institute for International Studies and External Lecturer at the University of Copenhagen, where he teaches international refugee law. He is also an associated legal expert to the European Council for Refugees and Exiles, a former policy analyst with the Danish Refugee Council and a regular consultant to a number of international organisations, governmental institutions and non-governmental organisations.


Cambridge studies in international and comparative law

Established in 1946, this series produces high-quality scholarship in the fields of public and private international law and comparative law. Although these are distinct legal sub-disciplines, developments since 1946 confirm their interrelation.

Comparative law is increasingly used as a tool in the making of law at national, regional and international levels. Private international law is now often affected by international conventions, and the issues faced by classical conflicts rules are frequently dealt with by substantive harmonisation of law under international auspices. Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law, while in many fields (such as the protection of human rights and democratic standards, investment guarantees and international criminal law) international and national systems interact. National constitutional arrangements relating to ‘foreign affairs’, and to the implementation of international norms, are a focus of attention.

The Board welcomes works of a theoretical or interdisciplinary character, and those focusing on the new approaches to international or comparative law or conflicts of law. Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages.

General Editors

James Crawford SC FBA
Whewell Professor of International Law, Faculty of Law, and Director, Lauterpacht Research Centre for International Law, University of Cambridge
John S. Bell FBA
Professor of Law, Faculty of Law, University of Cambridge

Editorial Board

Professor Hilary Charlesworth
Australian National University
Professor Lori Damrosch
Columbia University Law School
Professor John Dugard
Universiteit Leiden
Professor Mary-Ann Glendon
Harvard Law School
Professor Christopher Greenwood
London School of Economics
Professor David Johnston
University of Edinburgh
Professor Hein Kötz
Max-Planck-Institut, Hamburg
Professor Donald McRae
University of Ottawa
Professor Onuma Yasuaki
University of Tokyo
Professor Reinhard Zimmermann
Universität Regensburg

Advisory Committee

Professor D. W. Bowett QC
Judge Rosalyn Higgins QC
Professor J. A. Jolowicz QC
Professor Sir Elihu Lauterpacht CBE QC
Judge Stephen Schwebel

Books in the series

Access to Asylum: International Refugee Law and the Globalisation of Migration Control Thomas Gammeltoft-Hansen

Trading Fish, Saving Fish: The Interaction between Regimes in International Law Margaret Young

The Individual in the International Legal System: State-Centrism, History and Change in International Law Kate Parlett

The Participation of States in International Organisations: The Role of Human Rights and Democracy Alison Duxbury

‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice Tom Ruys

Science and Risk Regulation in International Law: The Role of Science, Uncertainty and Values Jacqueline Peel

Theatre of the Rule of Law: The Theory, History and Practice of Transnational Legal Intervention Stephen Humphreys

The Public International Law Theory of Hans Kelsen: Believing in Universal Law Jochen von Bernstorff

Vicarious Liability in Tort: A Comparative Perspective Paula Giliker

Legal Personality in International Law Roland Portmann

Legitimacy and Legality in International Law: An Interactional Account Jutta Brunnée and Stephen J. Toope

The Concept of Non-International Armed Conflict in International Humanitarian Law Anthony Cullen

The Challenge of Child Labour in International Law Franziska Humbert

Shipping Interdiction and the Law of the Sea Douglas Guilfoyle

International Courts and Environmental Protection Tim Stephens

Legal Principles in WTO Disputes Andrew D. Mitchell

War Crimes in Internal Armed Conflicts Eve La Haye

Humanitarian Occupation Gregory H. Fox

The International Law of Environmental Impact Assessment: Process, Substance and Integration Neil Craik

The Law and Practice of International Territorial Administration: Versailles, Iraq and Beyond Carsten Stahn

Cultural Products and the World Trade Organization Tania Voon

United Nations Sanctions and the Rule of Law Jeremy Farrall

National Law in WTO Law: Effectiveness and Good Governance in the World Trading System Sharif Bhuiyan

The Threat of Force in International Law Nikolas Stürchler

Indigenous Rights and United Nations Standards Alexandra Xanthaki

International Refugee Law and Socio-Economic Rights Michelle Foster

The Protection of Cultural Property in Armed Conflict Roger O’Keefe

Interpretation and Revision of International Boundary Decisions Kaiyan Homi Kaikobad

Multinationals and Corporate Social Responsibility: Limitations and Opportunities in International Law Jennifer A. Zerk

Judiciaries within Europe: A Comparative Review John Bell

Law in Times of Crisis: Emergency Powers in Theory and Practice Oren Gross and Fionnuala Ní Aoláin

Vessel-Source Marine Pollution:The Law and Politics of International Regulation Alan Tan

Enforcing Obligations Erga Omnes in International Law Christian J. Tams

Non-Governmental Organisations in International Law Anna-Karin Lindblom

Democracy, Minorities and International Law Steven Wheatley

Prosecuting International Crimes: Selectivity and the International Law Regime Robert Cryer

Compensation for Personal Injury in English, German and Italian Law: A Comparative Outline Basil Markesinis, Michael Coester, Guido Alpa, Augustus Ullstein

Dispute Settlement in the UN Convention on the Law of the Sea Natalie Klein

The International Protection of Internally Displaced Persons Catherine Phuong

Imperialism, Sovereignty and the Making of International Law Antony Anghie

Necessity, Proportionality and the Use of Force by States Judith Gardam

International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary Ole Spiermann

Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order Gerry Simpson

Local Remedies in International Law C. F. Amerasinghe

Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law Anne Orford

Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of Law Joost Pauwelyn

Transboundary Damage in International Law Hanqin Xue

European Criminal Procedures edited by Mireille Delmas-Marty and John Spencer

The Accountability of Armed Opposition Groups in International Law Liesbeth Zegveld

Sharing Transboundary Resources: International Law and Optimal Resource Use Eyal Benvenisti

International Human Rights and Humanitarian Law René Provost

Remedies Against International Organisations Karel Wellens

Diversity and Self-Determination in International Law Karen Knop

The Law of Internal Armed Conflict Lindsay Moir

International Commercial Arbitration and African States: Practice, Participation and Institutional Development Amazu A. Asouzu

The Enforceability of Promises in European Contract Law James Gordley

International Law in Antiquity David J. Bederman

Money Laundering: A New International Law Enforcement Model Guy Stessens

Good Faith in European Contract Law Reinhard Zimmermann and Simon Whittaker

On Civil Procedure J. A. Jolowicz

Trusts: A Comparative Study Maurizio Lupoi

The Right to Property in Commonwealth Constitutions Tom Allen

International Organizations Before National Courts August Reinisch

The Changing International Law of High Seas Fisheries Francisco Orrego Vicuña

Trade and the Environment: A Comparative Study of EC and US Law Damien Geradin

Unjust Enrichment: A Study of Private Law and Public Values Hanoch Dagan

Religious Liberty and International Law in Europe Malcolm D. Evans

Ethics and Authority in International Law Alfred P. Rubin

Sovereignty Over Natural Resources: Balancing Rights and Duties Nico Schrijver

The Polar Regions and the Development of International Law Donald R. Rothwell

Fragmentation and the International Relations of Micro-States: Self-determination and Statehood Jorri Duursma

Principles of the Institutional Law of International Organizations C. F. Amerasinghe


Access to Asylum

International Refugee Law and the Globalisation of Migration Control

Thomas Gammeltoft-Hansen


CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Tokyo, Mexico City

Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org
Information on this title: www.cambridge.org/9781107003477

© Thomas Gammeltoft-Hansen 2011

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

First published 2011

Printed in the United Kingdom at the University Press, Cambridge

A catalogue record for this publication is available from the British Library

Library of Congress Cataloguing in Publication data

Gammeltoft-Hansen, Thomas.
Access to asylum : international refugee law and the globalisation of migration control /
Thomas Gammeltoft-Hansen.
 p. cm. – (Cambridge studies in international and comparative law)
Includes bibliographical references and index.
ISBN 978-1-107-00347-7 (hardback)
1. Asylum, Right of. 2. Political refugees – Legal status, laws, etc. 3. Law and Globalization. I. Title. II. Series.
K3268.3.G36 2011
342.08′3 – dc22 2010052386

ISBN 978-1-107-00347-7 Hardback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.


Human laws cannot have the unerring quality of scientifically demonstrated conclusions. Not every rule need possess final infallibility and certainty; as much as is possible in its class is enough.

St Thomas Aquinas (Summa Theologica, Ia–2ae, xci 3, ad 3)


Contents

Foreword
ix
Preface
xi
Acknowledgements
xii
Table of treaties and other international instruments
xiv
Table of cases
xv
1     Introduction
1
2     The refugee and the globalisation of migration control
11
3     Refugee protection and the reach of the non-refoulement principle
44
4     Offshore migration control and the concept of extraterritorial jurisdiction
100
5     The privatisation of migration control and state responsibility
158
6     ‘Hic abundant leones’: the institutional reach of refugee protection
209
7     Conclusion
231
Bibliography
249
Index
270

Foreword

Most refugees today cannot travel to the developed world to seek recognition of their international legal right to protection. They instead face an ever-expanding array of mechanisms – carrier sanctions, border security systems, migration management regimes and the like – which seek to deflect them from wealthy states. This dilemma has been exacerbated in recent years by the rapid expansion of governmental efforts to contract out many migration management functions to transport companies, security firms and other non-state actors. Refugees may thus never be able to reach the territory of a country which has in principle agreed to receive them; they may never be in a position to state their claim to a person with the legal responsibility and authority to protect them; or both.

Distancing himself from those who proclaim a ‘legal black hole’ when refugees are encountered in extraterritorial settings, Thomas Gammeltoft-Hansen effectively shows that refugee law's core norm of non-refoulement is among a small number of vital rights that must be respected wherever a state exercises jurisdiction. And drawing on both principles of state responsibility and the duty of due diligence, he shows also that states cannot blithely invoke the traditional maxim that they bear no liability for private acts as a means of disavowing liability for deterrence effected by the non-state actors refugees are most likely to encounter.

But this book is no simplistic manifesto for refugee rights. To the contrary, Gammeltoft-Hansen forthrightly identifies and explores the critical areas of legal ambiguity – what is jurisdiction? when can private conduct truly be said to be authorised or controlled by a state? what level of diligence can reasonably be expected of a state in overseeing private actors? He rightly concedes that these areas of legal uncertainty afford states crucial ‘wriggle room’ within which to avoid their presumptive protection responsibilities, legally powerful though these may in theory be.

Most importantly, Gammeltoft-Hansen invites us to see the big picture of an asylum system in which powerful governments exploit legal ambiguity to distance themselves both horizontally and vertically from refugees. In his view, the power of extant international law is ironically a significant driver of the ‘offshoring’ and ‘outsourcing’ of protection. It is because international law has evolved to impose responsibility when refugees are subject to control in international spaces such as the high seas that effective avoidance now requires that some other sovereign receive the refugees. And it is because international law increasingly recognises liability for official acts even when committed abroad that wealthy states seeking some measure of control over the deflection process will seek to engage corporate or other non-state entities to exercise management functions for them.

The determination of powerful states to avoid legal strictures thus plays a critical role in generating an international and corporate market for migration control, including dealing with refugees. Because less developed countries with poor human rights records and rudimentary (if any) asylum systems are able to offer the most competitive deflection option, and because corporate or other non-state actors will be guided by concerns of efficiency and profit maximisation, the prospects for refugees are not good – in Gammeltoft-Hansen's words, likely amounting to no more than ‘protection lite’. Equally disturbing, because scrutiny of protection in such circumstances is difficult if not impossible, even cases arguably governed by international law are less likely to be noticed.

This important book addresses what may well be the most pressing challenges in international refugee law today. It affirms the real power of refugee law even as it challenges us to concede the costs of refugee law's power. Most importantly, it makes a compelling case for creative engagement with the foundational principles of public international law that inform and constrain the ability of refugee law to mitigate sovereign authority in the interests of human rights protection.

James C. Hathaway
University of Michigan Law School
Ann Arbor

August 2010





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