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Non-refoulement in a World of Cooperative Deterrence

Gammeltoft-Hansen, Thomas LU (2015) In Columbia Journal of Transnational Law 53(1). p.235-284
Abstract
Developed states have what might charitably be called a schizophrenic attitude towards international refugee law. Determined to remain formally engaged with refugee law and yet unwavering in their commitment to avoid assuming their fair share of practical responsibilities under that regime, wealthier countries have embraced the politics of non-entrée, comprising efforts to keep refugees away from their territories but without formally resiling from treaty obligations. As the early generation of non-entrée practices—visa controls and carrier sanctions, the establishment of “international zones,” and high seas deterrence—have proved increasingly vulnerable to practical and legal challenges, new forms of non-entrée predicated on interstate... (More)
Developed states have what might charitably be called a schizophrenic attitude towards international refugee law. Determined to remain formally engaged with refugee law and yet unwavering in their commitment to avoid assuming their fair share of practical responsibilities under that regime, wealthier countries have embraced the politics of non-entrée, comprising efforts to keep refugees away from their territories but without formally resiling from treaty obligations. As the early generation of non-entrée practices—visa controls and carrier sanctions, the establishment of “international zones,” and high seas deterrence—have proved increasingly vulnerable to practical and legal challenges, new forms of non-entrée predicated on interstate cooperation have emerged in which deterrence is carried out by the authorities of the home or a transit state, or at least in their territory.
The critical question we address here is whether such cooperation-based mechanisms of non-entrée are—as developed states seem to believe—capable of insulat- ing them from legal liability in ways that the first gen- eration of non-entrée strategies were not. We show that three evolving areas of international law— jurisdiction, shared responsibility, and liability for aiding or assisting—are likely to stymie many if not all of the new forms of non-entrée. Powerful states are thus faced with a trade-off between the efficiency of non-entrée mechanisms and the ability to avoid responsibility under international refugee law. If, as we believe probable, the preference for more rather than less control persists, legal challenges are likely to prove successful. Law will thus be in a position to serve a critical role in provoking a frank conversation about how to replace the duplicitous politics of non-entrée with a system predicated on the meaningful sharing of the burdens and responsibilities of refugee protection around the world. (Less)
Please use this url to cite or link to this publication:
author
organization
publishing date
type
Contribution to journal
publication status
published
subject
in
Columbia Journal of Transnational Law
volume
53
issue
1
article number
53:235
pages
50 pages
publisher
Columbia Law Review Association
external identifiers
  • scopus:84930857091
language
English
LU publication?
yes
id
3de2f6d8-c4b3-4cfa-b044-86d715ebe09b
alternative location
http://jtl.columbia.edu/tag/thomas-gammeltoft-hansen-james-c-hathaway/
date added to LUP
2016-05-16 17:02:54
date last changed
2022-04-24 07:29:00
@article{3de2f6d8-c4b3-4cfa-b044-86d715ebe09b,
  abstract     = {{Developed states have what might charitably be called a schizophrenic attitude towards international refugee law. Determined to remain formally engaged with refugee law and yet unwavering in their commitment to avoid assuming their fair share of practical responsibilities under that regime, wealthier countries have embraced the politics of non-entrée, comprising efforts to keep refugees away from their territories but without formally resiling from treaty obligations. As the early generation of non-entrée practices—visa controls and carrier sanctions, the establishment of “international zones,” and high seas deterrence—have proved increasingly vulnerable to practical and legal challenges, new forms of non-entrée predicated on interstate cooperation have emerged in which deterrence is carried out by the authorities of the home or a transit state, or at least in their territory.<br/>The critical question we address here is whether such cooperation-based mechanisms of non-entrée are—as developed states seem to believe—capable of insulat- ing them from legal liability in ways that the first gen- eration of non-entrée strategies were not. We show that three evolving areas of international law— jurisdiction, shared responsibility, and liability for aiding or assisting—are likely to stymie many if not all of the new forms of non-entrée. Powerful states are thus faced with a trade-off between the efficiency of non-entrée mechanisms and the ability to avoid responsibility under international refugee law. If, as we believe probable, the preference for more rather than less control persists, legal challenges are likely to prove successful. Law will thus be in a position to serve a critical role in provoking a frank conversation about how to replace the duplicitous politics of non-entrée with a system predicated on the meaningful sharing of the burdens and responsibilities of refugee protection around the world.}},
  author       = {{Gammeltoft-Hansen, Thomas}},
  language     = {{eng}},
  number       = {{1}},
  pages        = {{235--284}},
  publisher    = {{Columbia Law Review Association}},
  series       = {{Columbia Journal of Transnational Law}},
  title        = {{Non-refoulement in a World of Cooperative Deterrence}},
  url          = {{http://jtl.columbia.edu/tag/thomas-gammeltoft-hansen-james-c-hathaway/}},
  volume       = {{53}},
  year         = {{2015}},
}