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- Marques Pedro, Guilherme, 1984-
(författare)
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The Human Right to Leave: But Whereto?
- 2022
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- While all persons — with a few exceptions — are allowed to leave any country regardless of nationality, not all persons are allowed to enter any country of their choosing; and only citizens enjoy, in principle, the right to enter their country of nationality, which most often, and by necessity, is a restricted number of countries, since some of them prohibit multiple nationality. One claim that is frequently made in contemporary migration-related literature, and that much migration-related philosophical debate presupposes in one way or another, yet remains unexplored, is the claim that the right to leave a state – enshrined in the Universal Declaration of Human Rights of 1948 – does not entail a right to enter another state. This claim is typically made in relation or conjunction with another (set of) claims: that this alleged state of affairs is wrong somehow, or vice versa, that it is not. This dissertation deals with both claims and offer a first systematic study of these. On the one hand, the aforementioned descriptive claim has caught the attention of many observers who have, for the most part, taken it as a fairly undisputed description of current international law. I defend the view I call descriptive legal symmetrism, according to which there already is a form of symmetry between entry and exit rights, albeit not the one that most scholars set out to look for. On the other hand, in the context of the normative set of claims made by some authors concerning whether this alleged state of affairs is either immoral or unlawful (or both) in that it would expose the migrant to moral injustice and a protection gap in the contemporary human rights regime (namely, that of having, after leaving a country, nowhere to go), I submit that the object of disagreement in the normative legal debate concerns whether or not we ought to use the law to enforce what I call ‘Proposition A’: ‘it is permitted that any person leaves any country (besides justified exceptions), therefore it is obligatory that all states permit entry (besides justified exceptions)’. I conclude that much of the debate focuses on matters that, albeit interesting in their own right, might not be what is at stake. I hope to contribute to the normative discussion by sorting out the different positions, illustrating their truth-making conditions, and stressing where a position depends on problematic assumptions.
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- Noll, Gregor
(författare)
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Negotiating Asylum. The EU acquis, Extraterritorial Protection and the Common Market of Deflection
- 2000
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- How are access to asylum and other forms of extraterritorial protection regulated in the European Union? Is the EU acquis in these areas in conformity with international law? What tools does international law offer to solve conflicts between them? And, finally, is law capable of bridging the foundational oppositions embedded in migration and asylum issues? This work combines the potential of legal formalism with an analytical framework drawing on political theory. It analyses the argumentative strategies used by international lawyers, exploiting the interpretative methodology of international law as well as elaborate discrimination arguments. Taking the axiomatic tension between universalism and particularism as a point of departure, the author conceptualises the efforts to harmonise migration and asylum law in the European Union as the result of two interdependent negotiation loops: one taking place among Member States, and another between protection seekers and their host state. An extensive survey of the EU acquis and its institutional framework leads to the conclusion that both are heavily fragmented. The EU acquis contains not a single binding instruments securing the interests of protection seekers, while instruments enhancing migration control are fraught with legal and practical idiosyncrasies. Burden-sharing remains the pivotal element in the normative dynamics behind the EU acquis, and the various efforts of Member States to launch solidarity schemes are exposed to a critical analysis. After confronting the acquis with protective norms of international law, the author concludes that the deflection of protection seekers by means of visa requirements may constitute a violation of the European Convention of Human Rights, and that the prescriptions of international law oblige Member States to apply the Dublin Convention and the Spanish Protocol in a manner which ultimately empties the law of its main control functions. He also develops an explicatory model reconstructing the case law of the European Court of Human Rights in the field of extraterritorial protection. In the final part, the argumentative interdependencies between universalism and particularism are explored, and the author explains why the European Court of Human Rights must be regarded as the most legitimized forum for the negotiation of asylum in Europe.
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- Stenhammar, Fredrik, 1972-
(författare)
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Riktade FN-sanktioner och rule of law i folkrätten
- 2008
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This thesis analyzes United Nations targeted sanctions from the perspective of international law. Targeted UN sanctions consist predominantly of the freezing of assets through blacklisting of individuals and other private law entities. Targeted UN sanctions have been criticized for not complying with such legal safeguards as normally apply to the exercise of power over individuals and are thus related to other controversial aspects of the so-called war on terrorism. Most of the objections to targeted UN sanctions presuppose that sanctions under Article 41 of the UN Charter are equivalent to peacetime enforcement measures. This thesis explores whether targeted UN sanctions ought not instead to be seen as a form of economic warfare. This view would seem to be consistent with the UN Charter’s wording and object and purpose, as well as with Security Council and member state practice.Economic warfare includes non-forcible measures regularly taken alongside or instead of armed hostilities. It is a wartime instrument that is compatible with the rule of law among nations and at least in certain circumstances undoubtedly included in the UN Charter collective security system. What is disputed, and investigated in this thesis, is if this may also be the case when UN sanctions are imposed without connection to an ongoing international armed conflict, i.e. if the operation of Chapter VII of the UN Charter in and of itself means that the measures taken may properly be assessed according to the laws of war. Under the laws of war blacklisting is not a measure of criminal law but an attribution of enemy character, which is an international legal status determining against whom measures of economic warfare may be directed. The freezing of financial assets without judicial review is permissible under the laws of war pertaining to economic warfare. The thesis concludes that the criticism against targeted UN sanctions would seem to be largely misguided de lege lata.
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