International Protection Regime Research Articles

To derogate or not to derogate: health securitisation challenges to the principle of non-refoulement in the Central Mediterranean

Recent threats to the durability of the non-refoulement principle brought on by COVID-19 demonstrate how the pandemic has been much more than a health crisis. Public health emergency measures issued in response to the global outbreak, such as port closures, the suspension of search-and-rescue operations and privatised pushbacks at maritime borders, have exposed fundamental weaknesses in the international protection regime. With Italy and Malta in profile, this article examines how the elevation of COVID-19 to a national security threat has occasioned a shift in the migration and security discourse, challenging the very existence of the non-refoulement principle’s non-derogable character. In support of conceiving the principle as absolute, the article reviews how the denial of protections under non-refoulement has contributed to the scale and gravity of the present health crisis, forcing mixed migrant arrivals to either stay in overcrowded camps or in protracted situations of distress at sea. The article thereby concludes that the framing of migration as a health security issue appears to only breed greater insecurity.

Daring to aspire: theorising aspirations in contexts of displacement and highly constrained mobility

ABSTRACT Binary distinctions between ‘refugees’ and ‘economic migrants’ continue to prevail in humanitarian discourse, with asylum policies heavily focusing on refugees’ vulnerabilities and reduced choices. By addressing the paradox between vulnerability and agency embedded in the international protection regime, this article aims to lay the foundations for reconceptualising aspirations in contexts of displacement and highly constrained mobility. First, we analyse how the current asylum regime selectively encourages certain aspirations among refugees and delegitimises others which do not fit the image of the hopeless refugee deserving assistance. Then, we pursue three new analytical avenues in adding nuance to previous versions of the aspiration–capability framework. First, we discuss the importance of aspirations to stay in contexts of displacement and suggest that aspirations to stay and to migrate should not be seen as mutually exclusive. Second, drawing on psychological studies, we highlight that aspirations can be an emotional resource even in contexts where their realisation seems to be or certainly is unreachable. Lastly, we propose looking at the political dimensions of individual and collective aspirations to understand how displaced people can strive to induce social and political change despite the structural constraints they face.

Regime de Proteção Internacional. Fragilidades no acolhimento e integração de refugiados: Portugal (2010-2020)

The migration phenomenon is part of human history and in recent years it has increased in intensity and volume. A wide range of mechanisms seeks to reduce the negative effects associated with the migration process, especially for the weakest, who leave their country of origin due to conflicts, violations of their rights or persecution. This article analyses the International Protection Regime at a global, regional and national level, to understand how the United Nations and the European Union influence the adoption of refugee reception and integration policies in Portugal and to assess the weaknesses of this process in the national case.

The Curious Case of Article IX and Outer Space Environment

With the launch of the first artificial satellite, Sputnik, back in 1957, to life on Earth being socio-economically dependent on space technologies, we have come a very long way and with this comes several problems, one being extra-terrestrial pollution. The 1967 Outer Space Treaty has only one provision – Article IX – which merely puts an obligation to avoid ‘harmful contamination’ of outer space. There is nothing in the treaty or elsewhere to suggest the meaning of this term and the extent of protection offered by Article IX, thereby creating a lacuna. The article tries to evaluate whether the interpretation of the term ‘harmful contamination’ has evolved to envisages the implementation of the international environmental law regime for a holistic protection of the outer space environment. In this context, the meaning of ‘harmful contamination’ is analysed as intended by the drafters to highlight the shortcomings. Taking into account the evolving international environmental and space law jurisprudence, the article analyses whether the shortcomings can be addressed by harmoniously interpreting Article IX with the existing environmental law regime. Different tools of treaty interpretation are used to examine the evolving interpretation of the term ‘harmful contamination’ to provide an insight into what the lex ferenda be vis-à-vis application of Article IX in the protection of outer space environment.

Policy Analysis

Abstract While efforts by destination states in the Global North to externalise their asylum are not new, Denmark’s current proposal to establish a reception centre outside the EU is novel in the Nordic context. Since 2018, the Danish Social Democrats have proposed transferring all asylum seekers arriving on Danish territory to a third country for the processing of their asylum claims. This contribution provides an account of the Danish extraterritorial asylum effort, from the origins of the 2018 Social Democrats’ platform to the 2021 amendments to Denmark’s Aliens Act. The contribution pays particular attention to international reactions to the Danish policy, before reflecting on the current and potential role of extraterritorial asylum policies in the international protection regime.

O “quase” golpe

Historicamente, na Ciência Política e Relações Internacionais, poucos estudos mobilizaram fatores internacionais no auxílio ao processo de transição, consolidação da democracia e reação às ameaças democráticas na América Latina. Este artigo analisa o papel da Organização dos Estados Americanos (OEA) nesses processos de proteção democrática na região. Nesse sentido, discute-se a atuação da OEA no caso da crise democrática do governo Wasmosy (1993-1996), argumentando que tal ação substantiva demonstrou uma contradição na atuação da OEA e diagnosticou limitações na Resolução 1080, instrumento institucional de proteção democrática naquele momento. A circunstância política no Paraguai demonstrou a contradição de um regime internacional de proteção democrático curativo, que age depois de um golpe confirmado, em uma situação de ação preventiva, quando o golpe não ocorreu, mas precisou ser combatido.

The End of Intra-EU Investor-State Arbitration

Western Europe can be considered the birthplace of the current international investment protection regime. It was originally developed to protect Western European investors and economic interests in non-EU countries. Since the 1990s, however, international investment law and its dispute settlement mechanism of investor-State arbitration have increasingly extended to intra-European investor-State relations, eventually bringing it into conflict with the principles of European Union law. Two landmark decisions of the ECJ have now sealed the fate of intra-EU investor-State arbitration based both on bilateral investment treaties as well as the multilateral Energy Charter Treaty. The article traces this development and analyses the ECJ’s Komstroy judgment in which the Court found intra-EU ECT arbitration to be incompatible with EU law. It then discusses the implications of this jurisprudence for the international investment protection regime within the EU before arguing that domestic courts of the EU member States might emerge as a fully-fledged substitute for arbitral tribunals.

Internationaler Klimaschutz mithilfe nationaler Verfas- sungsgerichte? Erkenntnisse aus dem Klimabeschluss des BVerfG

Domestic Courts as Guarantors of International Climate Protection? Insights from the Climate Decision of the German Federal Constitutional Court The international climate protection regime depends on a willingness of states to cooperate that it cannot guarantee itself. Worldwide, there is a divergence between the need for ecological action and the political will to bring about the necessary changes in the national and international economy. As a result, climate lawsuits in domestic courts aimed at persuading policy-makers to make greater climate protection efforts have increased. Like the Dutch Hoge Raad and the Irish Supreme Court, the German Federal Constitutional Court has defined its function for global climate protection in its climate decision. This consists primarily of strengthening international co-operation in the area of climate protection. To this end, the Court gives Article 20a of the Basic Law an international dimension and calls for political cooperation for climate protection at the international level. The Court closely links constitutional law to the Paris Agreement and places itself at the service of enforcing the internationally agreed regime. The decision is motivated by the insight that climate protection cannot be achieved by a democratic sovereign alone, but only through concerted action at the international level.

Traditional Knowledge – Going Multidimensional

Traditional knowledge (TK) is going multidimensional. On one side it is penetrating Intellectual Property Rights (IPR) marking its association, besides Patents, with Trade Marks, Copyrights, Geographical Indication. On the other hand, the debate as to the protection of TK at the international level is gaining whilst becoming complex. The said debate is, still, not mature enough to have a legal protection covering benefit sharing. The paper discusses the multidimensional nature of TK. It is desired that this would throw light on different aspects of TK whilst analyzing that TK is really a complex concept when it comes to securing an international protection regime. The paper may allow ways to secure protection after witnessing the multidimensional nature of TK.

Special Issues to Commemorate the 70th Anniversary of the 1951 Convention relating to the Status of Refugees

2021 marks the 70th anniversary of the adoption of the Refugee Convention. Together with the 1967 Protocol, the Refugee Convention is an enduring instrument of protection that has assisted millions of refugees over many decades. It has been complemented by the evolution of human rights law over time, yet retains a distinct and significant purpose in providing a legal status for refugees, underpinned by fundamental protective principles. Despite this, the Refugee Convention is subject to perennial attack for being outdated and non-responsive to particular kinds of displacement, inadequate to address the challenges of international responsibility-sharing, too narrow in its scope or – conversely – too generous (serving as a ‘pull factor’ for people seeking protection). To commemorate the 70th anniversary of the Refugee Convention, we issued a call for papers inviting analysis of the legal scope, interpretation, application, impact, and implementation of this ‘centrepiece’ of the international protection regime. The response was overwhelming. We are delighted to present two Special Issues dedicated to these and related themes, including the role of the Refugee Convention in non-signatory States, the ‘human rights approach’ to refugee protection, and the function of the exclusion and cessation clauses in denying and withdrawing refugee status.

Protection of intellectual property rights for agricultural innovations: evaluating Bangladesh’s progression towards the international plant variety protection regime

Protection of intellectual property rights for agricultural innovations: evaluating Bangladesh’s progression towards the international plant variety protection regime

Humanitarian Visas in the International Jurisprudence and Their Implications on the International Protection Regime of the Refugees

Article presents brief analysis of judgements available on humanitarian visas, and discusses the contradictions existing between the judgements and legal framework established in the European Union. Analysis concludes with the impact of the relevant practice on the international regime directed at the protection of refugees.

Conceptualising Consistency: Coherence, Principles, and the Practice of Human Protection

Abstract ‘Consistency’ has a range of meanings in the context of human protection practice. This article conceptualises consistency – a basic premise for the legitimacy of norms, both procedurally as well as substantively. First, ‘consistency’ can refer to the coherence of the human protection framework. Second, consistency can refer to the degree to which protection responses adhere to international law and conform with international norms. Third, ‘consistency’ can mean the absence of variability and unevenness in the application of norms. I argue that consistency understood as coherence facilitates protection responses in line with international law, and, second, that a coherent protection framework encourages the even and invariable application of norms of protection by assigning responsibilities to individual protection agents. However, the international human protection regime remains incoherent: it is ambiguous and it is insufficiently integrated with other regimes and across institutions.

Challenges to the Assessment of Damages Claims Involving Crypto-Assets in Investment Arbitration

Abstract This article addresses the particular challenges involved in valuing various types of crypto-assets as investments under treaty-based investment arbitration. The interaction of the international investment protection regime with crypto-investments has largely remained un-examined, even though increasing amounts of foreign investments have flown into the development of crypto-assets its related markets. The existing investment treaty regime is set to face significant challenges in grappling with crypto-assets as investments due to several distinct features that differentiate them from traditional asset classes. This issue is explored further in the article from the perspective of the principles governing damages under international law.

The Fate of EU Environmental and Investment Law after the Achmea Decision

In the landmark Slowakische Republik v. Achmea BV judgment, the ecj arguably took a resolute stance against the compatibility of International Investment Agreements between EU Member States and the inherent functioning of EU’s legal order. However, the issue as to whether the foreign investment protection regime is at odds with the sound application of EU law is far from being settled. Furthermore, the international investment protection regime as interpreted by investment tribunals may hamper EU Member States’ regulatory space, especially in the implementation of ambitious environmental and climate policies. The recent surge of litigation before international investment tribunals triggered by retrospective changes to supporting schemes for renewable energy sources and the phase-out of nuclear power plants in some European Member States is a telling example. The purpose of this article thus is to analyse the avenues currently available to ensure consistency between EU’s environmental and climate policies as implemented by EU Member States and the investment protection regime as applied by investment tribunals in the wake of the Achmea decision, with a view to devising a benchmark to prevent and avoid, rather than foster, policy conflicts.

THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES AND THE SOURCES OF INTERNATIONAL REFUGEE LAW

AbstractThe role of international organisations in international law-making tends to be downplayed in this largely State-centric world. The practice of UNHCR, however, is reason enough for a more sophisticated appreciation of the role that operational entities can play in stimulating State practice, and of how they may interact with and guide domestic courts in treaty interpretation and application. The ILC's recently completed projects on customary international law and subsequent agreements and practice encourage a cautious approach, but the high degree of judicialisation in refugee decision-making, the strong legal content in the international protection regime and the impact of UNHCR's operational activities open the way for institutional and grass-roots developments, keeping the law in closer touch with social and political realities and with the needs of those displaced.

The Global Compact on Refugees: A Historic Achievement

The Global Compact on Refugees: A Historic Achievement

Effectiveness of Regional Protection Program (RPP) Rezim - International Protection Regime - European Union (EU) in Germany

Refugees migrate from their countries to other countries in the study of migration because of natural disasters, famine, difficulty in getting jobs, and fear of war or armed conflict in their countries. The problem of the Syrian refugee crisis in 2011 due to armed conflict made Syrian refugees leave their country for Europe. In 2011 Syrian refugees began to enter Europe through waters, then UNHCR announced the status of refugees and encouraged the EU to respond with refugee acceptance. In 2012 the EU then adopted the Regional Protection Program - International protection regime in accepting refugees. Germany was then very enthusiastic in accepting refugees, so there were many refugee destinations to get protection. Through the German resettlement scheme then received many refugees. Through the Balkan lane the EU then negotiated with Turkey which made it easier for refugees to enter Europe, then it had implications for the increasing number of refugees entering Europe in 2015. This caused fears of the Balkan countries so that the peak of the Balkan lane was closing which resulted in a reduction in German revenue from the original plan of acceptance. Therefore, the author wants to confirm whether the Regional Protection Program - International protection regime is quite effective in carrying out the reception of Syrian refugees in 2013-2015. The writer uses Arild Uderdal's regime effectiveness concept, which consists of several variables such as problem type, problem-solving capacity, and the level of collaboration then to confirm the effectiveness of this regime.

Human Rights of Elderly: An Emerging Challenge

Human rights are those inalienable rights which a human being inherits from the very virtue of his birth. Such rights are envisaged with the entire human race regardless of age. But in the last few decades, human beings have inculcated a new form of discrimination i.e. age discrimination. The elderly persons due to the biological process of ageing get infirm and dependent which sets them apart from the rest of the population in need of special protection of their rights. Although the governments of several nation-states have implemented legislations protecting the basic rights of the elderly persons but have not be able to successfully achieve the objective for implementing such legislation. This study was flagged of with the hope of bringing about positive legislative changes with regard to the protection of the rights of the elderly. The study is conducted by two individual advocates, committed to the cause and pains of elderly population. The study in its initiation assesses the definition of elderly person and the parameter to determine them. The is designed in a way to give an outlook to the problems of ageism, what measures the international community has taken to protect the rights of the elderly persons in general. Further, the study stresses various key areas for responses to the challenges as strengthening the international protection regime such as elimination of the right to fair and expeditious judicial determination, right to family life, right to privacy, employment discrimination, establishing adequate care facilities and their political rights. The study concludes with the enumeration of the possible responses that can be enforced to initiate the desirable changes. The suggestions and recommendations put forward in the study give an insight about the forms of rights and the discrimination based on age and further gives recommendations for strengthening the protection regime of the rights of the elderly population. A substantial commitment to research is needed to inform and guide a caring society as its aim to cope with the challenges ahead.

Global Compact for Safe, Orderly and Regular Migration

On September 19, 2016, the United Nations General Assembly adopted a set of commitments to enhance the protection of refugees and migrants, known as the New York Declaration for Refugees and Migrants. In the Declaration, all 193 member states of the United Nations reaffirmed the importance of the international protection regime and committed to strengthening and enhancing mechanisms to protect people on the move. They also agreed to work toward the adoption of a global compact on refugees and a global compact for safe, orderly and regular migration. These two compacts were drafted through separate processes over eighteen months in 2017–18 and formally adopted by the General Assembly in December 2018. One hundred and fifty-two states voted in favor of the adoption of the Migration Compact, while twelve countries abstained from the vote (Algeria, Australia, Austria, Bulgaria, Chile, Italy, Latvia, Libya, Liechtenstein, Romania, Singapore, and Switzerland), and five countries voted against (Czech Republic, Hungary, Israel, Poland, and the United States).