The Architecture of Functional Jurisdiction: Unpacking Contactless Control – On Public Powers, S.S. and Others v. Italy, and the “Operational Model”

Available accounts on jurisdiction, effective control, and the reach of human rights protections fail to provide a coherent construction that is principled and applicable across the board, within and beyond territorial borders. The “functional jurisdiction” model posited herein resolves these incongruities by looking at the normative foundation of sovereign authority overall, predicated on an exercise of “public powers” through which State functions are discharged, taking the form of policy delivery and/or operational action, whether inland or offshore, and which translates into “situational” control. Using the pending case of S.S. and Others v. Italy as an illustration, the article focuses on the sovereign-authority nexus that unites a specific state with a specific individual in a specific situation, triggering human rights obligations even through mechanisms of “contactless control” exercised via remote management techniques and/or through a proxy third actor. The role of extraterritorial operations, qua complex mechanisms of governance that implement broader policies with a planning, rollout and post-implementation phase, is central to this re-conceptualization, as is also the understanding that what makes control “effective” is its capacity to determine the material course of events and the resulting position in which those affected find themselves upon execution of the measure(s) concerned

The EU Humanitarian Border and the Securitization of Human Rights:The “Rescue-through-Interdiction/Rescue-without-Protection” Paradigm

This article looks at securitization/humanitarianization dynamics in the EU external sea borders to track and critique the substantial transformation of the role played by human rights in the Mediterranean. Mapping the evolution of maritime engagement up to the ‘refugee crisis’, it is revealed how the invocation of human rights serves paradoxically to curtail (migrants') human rights, justifying interdiction (‘to save lives’), and impeding access to safety in Europe. The result is a double reification of ‘boat migrants’ as threats to border security and as victims of smuggling/trafficking. Through a narrative of ‘rescue’, interdiction is laundered into an ethically sustainable strategy of border governance. Instead of being considered a problematic (potentially lethal) means of control, it is re-defined into a life-saving device. The ensuing ‘rescue-through-interdiction’/‘rescue-without-protection’ paradigm alters the nature of human rights, which, rather than functioning as a check on interdiction, end up co-opted as another securitization/humanitarianization tool

Solidarity’s Reach: Meaning, Dimensions, and Implications for EU (External) Asylum Policy

Abstract Solidarity has a key role to play in the allocation of responsibility for refugee protection, as is implied by Article 80 TFEU. Yet, EU law fails to provide a definition and a clear indication of what it entails, especially as for its external reach. Against this background, this article embarks on a theoretical/practical investigation of the normative bases of ‘EU solidarity’. Building on a cosmopolitan vision, it unpacks the multi-polar/multi-functional nature of the concept, as a founding value and constitutional (meta-)principle of EU law. In such a guise, it will posit that solidarity gives rise to an (autonomous) primary law duty of responsibility sharing/good faith cooperation that requires ‘fairness’ and ‘respect for fundamental rights’, as a uniform/all-pervading structural command generally applicable across policy fields. So configured, solidarity governs intra/extra-EU relations (based on the principle of coherence). The institutional, material, and procedural aspects of solidarity are thus explored to distil its horizontal, vertical, and systemic facets. Combined, they arguably produce a triple duty of conduct, loyalty, and result that permeates EU integration as a whole, calling into question the self-serving approach currently guiding the Common European Asylum System’s (CEAS) ‘external dimension’, as exemplified by the EU-Turkey ‘deal

Securitization of Search and Rescue at Sea: The Response to Boat Migration in the Mediterranean and Offshore Australia

Copyright © British Institute of International and Comparative Law 2018. This article compares the law and practice of the European Union and Australia in respect to the search and rescue (SAR) of boat migrants, concluding that the response to individuals in peril at sea in both jurisdictions is becoming increasingly securitized. This has led to the humanitarian purpose of SAR being compromised in the name of border security. Part I contrasts the unique challenge posed by SAR operations involving migrants and asylum seekers, as opposed to other people in distress at sea. Part II analyses the relevant international legal regime governing SAR activities and its operation among European States and in offshore Australia. Part III introduces the securitization framework as the explanatory paradigm for shifting State practice and its impact in Europe and Australia. It then examines the consequences of increasing securitization of SAR in both jurisdictions and identifies common trends, including an increase in militarization and criminalization, a lack of transparency and accountability, developments relating to disembarkation and non-refoulement, and challenges relating to cooperation and commodification