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Human Rights and Migration Management: Of Complexity, Balance, and Nuance

Published online by Cambridge University Press:  28 February 2017

David A. Martin
David A. Martin*
Affiliation:
University of Virginia
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Abstract

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Type
An Emerging International Law of Migration
Information
Proceedings of the ASIL Annual Meeting , Volume 106 , 2012 , pp. 69 - 72
Copyright
Copyright © American Society of International Law 2012

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References

1 Nishimura Ekiu v. United States, 142 U.S 651 (1892); see also Musgrove v. Chun Teeong Toy, 1891 Ac 272.

2 Soering v. United Kingdom, 11 EHRR 439 (161 Eur. Ct. H.R. (ser. A)) (1989).

3 This transformation, along with its underappreciated impacts on other human rights values, is thoughtfully explored in Padmanabhan, Vijay M., To Transfer or Not to Transfer: Identifying and Protecting Relevant Human Rights Interests in Nonrefoulement, 80 Fordham L. Rev. 73 (2011)Google Scholar.

4 See, e.g., Chahal v. United Kingdom, 23 EHRR 413 (1996-V Eur. Ct. H.R. 1831) (1996).

5 A. and Others v. United Kingdom, App. No. 3455/05 (ECtHr Feb. 19, 2009).

6 I recognize that later measures such as the European Union’s Qualifications Directive, Council Directive 2004/83, 2004 O.J. (L 304) 12 (EC), could be seen as agreement to these obligations by political actors, but those steps came much later and only after the entrenchment of the judicial doctrine.

7 See Hailbronner, Kay, Nonrefoulement and “Humanitarian” Refugees: Customary International Law or Wishful Legal Thinking? , in The New Asylum Seekers: Refugee Law in the 1980s, at 123 (Martin, David A. ed., 1988 CrossRefGoogle Scholar).

8 See, e.g., Jabari v. Turkey, App. No. 40035/98, para. 50 (ECtHr July 11, 2000) (independent and rigorous scrutiny is required, with the possibility of suspending removal); see also Conka v. Belgium, App. No. 51564/99, paras. 82-83 (ECtHR Feb 5, 2002) (finding inadequate the Belgian “extremely urgent procedure” for review of expulsion orders, because suspensive effect is discretionary and a stay could be wrongly refused). On the use of interim measures directed by the European Court to stay expulsion until the Strasbourg procedures have been completed, see Nuala Mole & Catherine Meredith, Asylum and the European Convention on Human Rights 217-26 (2d ed. 2010).

9 Hirsi Jamaa v. Italy, App. No. 27765/09 (Eur. Ct. H.R. Feb. 23, 2012).

10 See, e.g., Dutton, Yvonne M., Pirates and Impunity: Is the Threat of Asylum Claims a Reason to Allow Pirates to Escape Justice?, 34 Fordham Int’l L.J. 236, 240-42 (2011)Google Scholar.