DOI
https://doi.org/10.31429/26190567-20-1-24-39How to Cite
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Copyright (c) 2019 Паоло Барджакки
Abstract
The impact of NSAs such as organized armed groups, organized crime groups and terrorist groups on MENA (Middle East & North Africa) region is twofold. They fuel instability, crime, violence, and armed conflicts in the region and turn into push factors, if not means or vehicle, for illegal migration towards Europe where it is often perceived, right or wrong, as a serious threat to security. The EU response to migration is therefore evolving as well as the related security policies. Following decades of strong and wide protection of human rights in any situation, European States are seeking for a new and different balance between human rights and security. It seems as if States are nowadays ready to trade some political idealism and legal functionalism in the field of migration and human rights for more political pragmatism and legal formalism in the field of security. Some clues are emblematic of this new approach of security marked by some US‑style features such as a more limited judicial review and a formalistic interpretation and application of the law. Even if, for the time being, Europe has substantially stayed true to a high standard of human rights protection, the quest for more security by Governments might set them on a collision course with supranational Courts and their functionalist approach to human rights protection.
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Funding information
This Article is the result of research carried out by the Author within the Jean Monnet Network POWERS (Peace, War and the World in European Security Challenges) co-funded by the Erasmus+ Programme of the European Union (http://powers-network.vsu.ru/en/home/). This publication reflects the views only of the author, and the Commission cannot be held responsible for any use which may be made of the information contained therein.
References
Boister, N. (2012). An Introduction to Transnational Criminal Law. (1st ed.). Oxford: Oxford University Press.
Buckley, O. M. (2012). Unregulated armed conflict: non-State armed groups, international humanitarian law, and violence in Western Sahara. The North Carolina Journal of International Law and Commercial Regulation, 37, 793–845.
Clapham, A. (2009). Non-state actors. In V. Chetail (Ed.) Post-Conflict Peacebuilding: A Lexicon (pp. 200–212). Oxford: Oxford University Press.
Council of Europe, Parliamentary Assembly, Committee on Migration, Refugees and Displaced Persons (2016). The Situation of Refugees and Migrants under the EU-Turkey Agreement of 18 March 2016. [Report, Doc. 140128]. Retrieved from http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-en.asp? FileID=22612&lang=en.
Council of Europe, Group of Experts on Action against Trafficking on Human Beings (2017). Report on Italy under Rule 7 of the Rules of Procedure for Evaluating Implementation of the Council of Europe Convention on Action against Trafficking on Human Beings. Retrieved from https://rm.coe.int/16806edf35.
de Vries, K. (2018). The EU-Turkey Statement: A Design for Human Rights Violations? An examination concerning the compatibility of the EU-Turkey Statement with human rights in EU Law. (MAIR Thesis European Union Studies, Leiden University). Retrieved from https://openaccess.leidenuniv.nl/bitstream/handle/1887/63629/K.%20de%20Vries.%20The%20EU%20Turkey%20Statement.%20A%20design%20for%20human%20rights%20violations.pdf?sequence=1.
ECJ, European Court of Justice (2013). Judgment of 18 July 2013. Grand Chamber. European Commission & Council of the EU v. Yassin Abdullah Kadi. Joined Cases C-584/10 P, C-593/10 P, C-595–10 P.
ECJ, European Court of Justice (2017a). Order of 28 February 2017. NF v. European Council, NG v. European Council, NM v. European Council. Joined Cases T-192/16, T-193/16, T-257/16.
ECJ, European Court of Justice (2017b). Judgment of 6 September 2017. Grand Chamber. Slovakia and Hungary v. Council. Joined Cases C-643/15 and C-647/15.
ECHR Protocol (2013). Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms. [CETS No. 213, Explanatory Report]. Retrieved from http://www.echr.coe.int/Documents/Protocol_15_explanatory_report_ENG.pdf.
ECtHR, European Court of Human Rights (1996). Judgment of 15 November 1996. Grand Chamber. Chahal v. the United Kingdom. Application no. 22414/93.
ECtHR, European Court of Human Rights (2008). Judgment of 28 February 2008. Grand Chamber. Saadi v. Italy. Application no. 37201/06.
ECtHR, European Court of Human Rights (2011). Judgment of 7 July 2011. Grand Chamber. Al-Jedda v. the United Kingdom. Application no. 27021/08.
ECtHR, European Court of Human Rights (2012). Judgment of 23 February 2012. Grand Chamber. Hirsi Jamaa and Others v. Italy. Application no. 27765/09.
ECtHR, European Court of Human Rights (2014). Judgment of 4 November 2014. Grand Chamber. Tarakhel v. Switzerland. Application no. 29217/12.
EU Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection.
EU Directive 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record for the prevention, detection, investigation and prosecution of terrorist offenses and serious crime.
EU Regulation 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third-country nationals crossing the external borders of the Member States.
EU Regulation 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS).
EU-Turkey Statement (2016). [Press Release 144/16. 18 March 2016]. Retrieved from http://www.consilium.europa.eu/en/press/press-releases/2016/03/18/EU-Turkey-statement/.
European Commission (2015a). Eight biannual report on the functioning of the Schengen area. [COM(2015) 675 final]. Retrieved from http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2015/0675/COM_COM%282015%290675_EN.pdf.
European Commission (2015b). Proposal for a Regulation of the European Parliament and of the Council Establishing an EU common list of safe countries of origin for the purpose of Directive 2013/32 and amending Directive 2013/32/EU. [COM (2015) 452 final]. Retrieved from https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52015PC0452.
European Commission (2017a). Communication on a more effective return policy in the European Union — A Renewed Action Plan. [COM(2017) 200 final]. Retrieved from https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170302_a_more_effective_return_policy_in_the_european_union_-_a_renewed_action_plan_en.pdf
European Commission (2017b). Action Plan on measures to support Italy, reduce pressure along the Central Mediterranean route and increase solidarity. [SEC(2017) 399]. Retrieved from https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170704_action_plan_on_the_central_mediterranean_route_en.pdf.
European Commission (2017c). Fifth Report on the progress made in the implementation of the EU-Turkey Statement. [COM(2017) 204 final]. Retrieved from https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170302_fifth_report_on_the_progress_made_in_the_implementation_of_the_eu-turkey_statement_en.pdf.
European Commission (2018a). Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast). [COM(2018) 634 final]. Retrieved from https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52018PC0634.
European Commission (2018b). Managing Migration: Commission expands on disembarkation and controlled centre concepts. [Press Release IP/18/4629]. Retrieved from http://europa.eu/rapid/press-release_IP-18–4629_en.htm.
Frontex, European Border and Coast Guard Agency (2019, January 4). Number of irregular crossings at Europe’s borders at lowest level in 5 years. [News Release]. Retrieved from https://frontex.europa.eu/media-centre/news-release/number-of-irregular-crossings-at-europe-s-borders-at-lowest-level-in-5-years-ZfkoRu.
Gatti, M. (2016, April 18). The EU-Turkey Statement: A Treaty That Violates Democracy (Part 1 of 2) [Web Log Post]. Retrieved from ejiltalk.org/the-eu-turkey-statement-a-treaty-that-violates-democracy-part-1-of-2/.
Jessup, P. C. (1938). Elihu Root [Two-volume Set]. New York, NY: Dodd, Mead & Company.
Liguori, A. (2015). Some Observations on the Legal Responsibility of States and International Organizations in the Extraterritorial Processing of Asylum Claims. The Italian Yearbook of International Law, 25, 135–158.
Mackenzie-Gray Scott, R. (2018). Torture in Libya and Questions of EU Member State Complicity. [Web Log Post]. Retrieved from https://www.ejiltalk.org/torture-in-libya-and-questions-of-eu-member-state-complicity/.
Melzer, N. (2009). Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law [Monograph]. Retrieved from https://www.icrc.org/en/doc/assets/files/other/icrc-002–0990.pdf.
IOM, International Organization for Migration (2019, January 22). Flow Monitoring [News Release]. Retrieved from http://migration.iom.int/europe?type=arrivals.
Moreno-Lax, V. & Giuffré, M. (forthcoming). The Raise of Consensual Containment: From ‘Contactless Control’ to ‘Contactless Responsibility’ for Forced Migration Flows. In S. Juss (Ed.), Research Handbook on International Refuge Law (forthcoming). Cheltenham, UK, Northampton, MA, USA: Edward Elgar Publishing.
North, A. (2011). Extraterritorial Effect of Non-refoulement. [Federal Court of Australia, Digital Law Library, Judges’ Speeches]. Retrieved from http://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-north/north-j-20110907.
Ojeda, S. (2016, December 13). Global counter-terrorism must not overlook the rules of war [Web log post]. Retrieved from https://blogs.icrc.org/law-and-policy/2016/12/13/global-counter-terrorism-rules-war/.
Stigall, D. E., Blakesley, C. L. (2015–2016). Non-State Armed Groups and the Role of Transnational Criminal Law During Armed Conflicts. The George Washington International Law Review, 48, 1–42.
Sumpter, C., Franco, J. (2018). Migration, Transnational Crime and Terrorism: Exploring the Nexus in Europe and Southeast Asia. Perspective on Terrorism, 12 (5), 36–50.
UNGA, U. N. General Assembly (1994). Measure to Eliminate International Terrorism [Resolution 49/60]. Retrieved from http://www.un.org/documents/ga/res/49/a49r060.htm
UNHCR, U. N. High Commissioner for Refugees (2007). Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. Retrieved from http://www.unhcr.org/4d9486929.pdf.
UNODC, U. N. Office on Drugs and Crime (2010). The Globalization of Crime. A Transnational Organized Crime Threat Assessment. [Monograph]. Retrieved from http://www.unodc.org/res/cld/bibliography/the-globalization-of-crime-a-transnational-organized-crime-threat-assessment_html/TOCTA_Report_2010_low_res.pdf.
UNODC, U. N. Office on Drugs and Crime (2012). International Cooperation in Criminal Matters: Counterterrorism. [Monograph]. Retrieved from https://www.unodc.org/documents/terrorism/Publications/TrainingCurriculumModule3/Module3_EN.pdf.
U. S. Court of Appeals (2017). 9th Circuit. U.S. v. Peralta-Sanchez. 868 F.3d 852.
U. S. Department of Defense (2015). Detainee Transfers Announced. [Press Release No: NR-438–15]. Retrieved from http://www.defense.gov/News/News-Releases/News-Release-View/Article/628980/detainee-transfers-announced.
U. S. Department of Justice (no date). White Paper. Lawfulness of a Lethal Operation Directed Against a U. S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or an Associated Force. Retrieved from http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf.
U. S. Department of State, Bureau of Counterterrorism (2018). Country Reports on Terrorism 2017. Retrieved from https://www.state.gov/j/ct/rls/crt/2017/
U. S. Office of the Attorney General (2013). Letter to the Chairman of the Committee on the Judiciary of the United States Senate. Retrieved from https://www.justice.gov/slideshow/AG-letter-5–22–13.pdf.
U. S. President, White House (2016). Plan for Closing the Guantanamo Bay Detention Facility. Retrieved from https://www.defense.gov/Portals/1/Documents/pubs/GTMO_Closure_Plan_0216.pdf.
U. S. President (2017). Border Security and Immigration Enforcement Improvements. [Executive Order 13767]. Federal Register, 82 (18), pp. 8793–8797.
U. S. Supreme Court. (1993). Sale v. Haitian Centers Council, Inc.509 U.S. 155.