G.N. Cornelisse

Immigration Detention and Human Rights. Rethinking Territorial Sovereignty

Practices of immigration detention in Europe are largely resistant to conventional forms of legal correction. By rethinking the notion of territorial sovereignty in modern constitutionalism, this book puts forward a solution to the problem of legally permissive immigration detention.

Human Rights for Immigration Detainees in Strasbourg: Limited Sovereignty or a Limited Discourse?

The present international legal system is so determined to protect the interests of states and their territorial boundaries that any people who seek to move across those boundaries are seen as intruders. If they can enter at all, they enter at their own risk.

Immigration Detention: An Instrument in the Fight against Illegal Immigration or a Tool for its Management?

This contribution argues that immigration detention’s distinctly territorial logic needs to be fully accounted for in any attempt to understand the contemporary use of this instrument. As such, penal approaches to the study of detention policies need to be complemented and informed by constitutional and transnational legal scholarship, not only so that we can fully grasp the distinctiveness of immigration detention but also in order to be able to formulate adequate legal responses to this measure. This chapter substantiates these claims by taking a look at the case law of both the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU) concerning the detention of irregular migrants.

Freedom Of Movement I: The Right To Leave As A Human Right

This chapter explores the development and the nature of the legal framework regulating the international movement of persons. It focuses on right to leave. The chapter presents an overview of the way in which perceptions on issue of exit have developed over time. It deals with the international legal norms regulating emigration with particular emphasis on the permitted restrictions on the exercise of the right to leave. The chapter also deals with relationship between measures of immigration control and the individual right to leave. It discusses an answer to the question as to why sovereignty has decreased in importance when it comes to matters merely concerning exit. The importance of freedom of movement was confirmed in the Charter of Paris for a New Europe by the Conference on Security and Co-operation in Europe, an organisation that originated from the Helsinki process.Keywords: Europe; freedom of movement; immigration control; legal framework; right to leave; sovereignty

Freedom Of Movement II: Decisions On Entry As A Sovereign Prerogative?

This chapter argues that the way in which immigration is portrayed and perceived as impinging first and foremost on the integrity of national borders overpowers the consideration of most. It traces the development over time of the sovereign right to exclude. The chapter explores the legal framework regulating the entry and stay of nationals in a state other than their own. It addresses the legal regulation of immigration by third-country nationals into and within the European Union (EU). The chapter also explores the way in which territoriality features in allegedly post-national constellation of the EU. It also discusses that the asymmetry in the legal framework regulating international human movement is the inevitable result of the way in which territoriality has shaped modern constitutional discourse. The chapter also delas with the way in which European States increasingly make use of novel concepts and techniques in order to (re)assert (national) exclusionary powers.Keywords: European Union (EU); immigration; legal framework; sovereign right to exclude

The Ecthr: Detention As A 'Necessary Adjunct' To An 'Undeniable Sovereign Right'?

The special position of European Court of Human Rights (ECtHR) in Europe makes it an exemplary site to conduct an analysis of the way in which national states are in a real sense restrained by international legal norms that aim at the protection of the human rights of immigration detainees. This chapter focuses on substantive conditions that need to be fulfilled in order for a state to have lawful recourse to immigration detention. It examines how the Court interprets the prohibition on arbitrary deprivations of liberty in the immigration context. The chapter presents Courts case law in field lacks considerations of proportionality and necessity. It discusses that the Courts case law on immigration detention exemplifies the limits of the contemporary European system for the protection of human rights when it comes to those who are out of place in the global territorial order.Keywords: comtemporary European system; Courts case law; European Court of Human Rights (ECtHR); immigration detention; liberty