T.P. Spijkerboer

The Human Costs of Border Control

This article outlines the relationship between irregular immigration, increased border control, and the number of casualties at Europe’s maritime borders. The conclusion is that the number of fatalities is increasing as a result of increased border control. The author argues that States have a positive obligation under international law to address this issue, and formulates concrete proposals to monitor the number of border deaths.

Deaths at the borders database: evidence of deceased migrants’ bodies found along the southern external borders of the European Union

ABSTRACT Irregular migrants and asylum seekers have died and continue to die attempting to cross the external borders of the EU without authorisation, seeking to enter the territories of its Member States. Yet, remarkably little is known about these ‘border deaths’. In 2015, the Human Costs of Border Control project published the Deaths at the Borders Database for the Southern EU, an open-source ‘evidence base’ of individualised information about people who have died border deaths between 1990 and 2013, sourced from the death management systems of Spain, Gibraltar, Italy, Malta and Greece. It is the first database on border deaths in the EU to be based on official sources as opposed to the news media. The project involved searching 563 state-run death registry archives and deductively selecting the death certificates of persons who died border deaths. This paper describes, in detail, the making of the Deaths at the Borders Database: from the systematic, multi-sited, quantitative data collection and qualitative case studies, to the construction and final results of the Database itself.

Wasted Lives. Borders and the Right to Life of People Crossing Them

States are obliged to protect the right to life by law. This article analyses the way in which states do this in the field of aviation law, maritime law and the law on migrant smuggling. A comparative description of these fields shows that states differentiate in protecting the right to life. Regular travellers benefit from extensive positive obligations to safeguard their right to life, whereas the lives of irregularised travellers are protected first and foremost by combating irregularised migration and, if the worst comes to pass, by search and rescue. The right of states to exclude aliens from their territories leads to exclusion of irregularised travellers from their main positive obligations under the right to life. This situation is analysed through Zygmunt Bauman’s notion of ‘wasted lives’. The contrast with aviation and maritime law makes clear that this situation is the outcome of human choice, which can be changed.

Minimalist Reflections on Europe, Refugees and Law

It is hard to understand the current developments in European refugee law without the benefit of hindsight. This paper refrains from trying to make a comprehensive analysis, and investigates fragments small enough to allow for analysis. We will look at the political and legal processes which turned the influx of a small number of people into the European Union (EU) into a crisis; at tunnel vision of European policy makers; at the legal aspects of the EU’s and NATO’s intervention in the Aegean Sea; and at the processes resulting in the acceptance of mass deaths as a daily routine.

The European court of human rights and immigration: Limits and possibilities

Th is special issue of European Journal of Migration and Law asks the question of how the universalistic values of western liberal tradition, as exemplifi ed by the European Convention of Human Rights (the Convention), relate to present day national immigration policies. Th is question has been subject to some academic debate in recent years. Some scholars express a strong belief in the growing impact of international human rights law upon immigration policy. Yasemin Soysal, for example, argues that a reconfi guration of citizenship has taken place; from a more particularistic one based on nationhood, to a more universalistic one based on individual rights. She argues that rights which used solely to belong to nationals are now being extended to foreign populations. Increasingly, in her view, claims of individuals are legitimated by ideologies grounded in a transnational community. She particularly refers to the jurisprudence of the European Court of Human Rights (Court) to substantiate this assertion.1 By contrast, other scholars point out that international human rights law, like any other form of law, can only be eff ective to the extent that it is implemented within a concrete national context. Linda Bosniak has illustrated that national immigration law regimes have recently become more rather than less restrictive, curtailing the human rights of immigrants rather than extending them. Although Bosniak does not deny the signifi cance of international human rights for debating the legitimacy of such measures in the national context, she is less convinced than Soysal of the inevitable triumph of the universalistic principles of international human rights law over nationalism as a political factor. Rather, she signals the enduring tension that exists between the exclusionary and universalistic commitments that the concept of citizenship implies.2 Moreover, her analysis suggests that this tension cannot simply melt away in an evolutionary progression towards universal citizenship. For the benefi ts that citizenship has to off er are determined, in part at least, by how citizens are distinguished from non-citizens.

A Distributive Approach to Migration Law Or: The Convergence of Communitarianism, Libertarianism and the Status Quo

In this essay, I will argue that the debate about cosmopolitanism vs. sovereignty can only be considered as a relevant debate if the wrong questions are asked - at least in my field of expertise, migration law. The question which is at the heart of this debate in migration law (under which circumstances should aliens be admitted) is a false one. In m view, the issue is not the just distribution of membership. Instead, the debate is mostly about the position of aliens who are in the community already, and whom the community prefers to consider as non-members, or even as non-entities. If it would be acknowledged that the aliens whose position is being discussed are already in the community, it would become clear that their position can either be debated under the rubric of admission, or under the rubric of redistribution. The obsessive way in which the redistribution option is ignored suggests that the (ideological, material, and/or other) stakes for debating migration under the admission rubric are high.