Abstract
Our panel members will juxtapose three different cases of governance in order to analyze their impacts on forced migration and will focus their attention on a double regional perspectives : one from North America and the other one from the European Union.
Our panel seeks to provide insights with respect to two questions raised for the 13th conference of the IASFM :
– What can be said about the international rights regime? Do the existing international instruments address forced displacement?
– Does the gradual emergence of regional blocs create another layer of governance with particular beneficial or negative impact on forced migration?
FIRST CASE/ PRESENTATION:
THE SECURIZATION OF MIGRATION IN THE EUROPEAN UNION AND IN NORTH AMERICA :
The first presentation adopts a comparative approach to explore the securization of migration in the European Union and in North America. It is argued that States consider uncontrolled migratory flows as a security problem which threatens the integrity of their immigration and asylum systems. In order to stem these flows States have taken a series of measures such as interception operations, increased detention of undocumented migrants, excessive penalties for migrant smuggling and safe third-country agreements. A similar trend can be observed both in Europe and in Northern America in which common norms and cooperation mechanisms are established with a view to optimizing States’s control over irregular migration. It is maintained that bilateral and multilateral cooperation between States contributes to the legitimization of practices which are contrary to the international human rights and refugee law. The presentation focuses on how the strengthening of State control over non-citizens through harsher immigration measures transforms the logic of domestic structures and public policies in the EU member states as well as in North America. It also analyzes how the policies against irregular migration lower refugee protection standards to the minimum extent possible and how they increase the vulnerability of asylum seekers.
SECOND CASE/ PRESENTATION :
THE EXTRATERRITORIAL POLICY OF THE EUROPEAN UNION IN THE FIELD OF MIGRATION :
The second presentation focuses on the recent European proposal regarding the processing of asylum claims in Libya or in North Africa. It intends to analyze whether this type of governance is compatible with the non refoulement principle sets out in article 33 (1) of the Convention relating to the status of Refugees. This implies to study first whether the non refoulement principle is enforceable extraterritorialy. Secondly, on the compatibility of extraterritorial processing of asylum claims, it is argued that from the unique perspective of the law, the processing of asylum claims outside the European territory does not directly infringe the letter of the non refoulement principle. Meanwhile, this type of governance measure provides an understanding as to how the European Union seeks to implement its international obligations towards asylum seekers. The paper will thus discuss whether this particular way to address forced displacement has positive or negative impact on the people in need of protection. Indeed, from the spirit side of the article 33 of the Convention relating to the status of Refugees some aspects of the extraterritorial processing of asylum claim are arguable. It questions the access to the asylum procedure and it is argued that there is no real guarante for an effective determination of the refugee status. Lastly, this issue opens an ethical and moral debate on how this kind of governance responds to forced migration.
THIRD CASE/ PRESENTATION :
APPLICATION OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS BY CANADIAN JUDGES IN THE INTERPRETATION OF THE IMMIGRATION AND PROTECTION REFUGEE ACT (IRPA):
Finally, the third presentation will focus on the use of international human rights instruments by Canadian judges to interpret the IRPA. In fact, since 1999, the Supreme Court has explored the linkages between domestic statutes and international norms and values. In accordance with s. 3(3)(f) of the IRPA which directs judges to construe and apply the Act in a manner that «complies with international human rights instruments to which Canada is signatory», the Supreme Court has slowly developed the basic principles underlying a new mechanism of relevancy which is called harmonization of domestic law with international law. The panellist will present the results of a paper published recently on this issue, and which examines a recent disturbing trend in the case-law developed by the Federal Court of Canada. It will argued that this case-law severely limits the positive impact that international human rights instruments can have to protect asylum seekers and other persons in need of protection. In the context of the IASFM conference, this topic is closely linked to one of the themes described in the call for paper and related to the question of the international instruments and their impact on forced migration.