12 February 2025
Kippt in Brüssel das individuelle Asylrecht?
Während ganz Deutschland leidenschaftlich den „Merz-Plan“ für Zurückwei-sungen an den deutschen Grenzen diskutiert, hat in Brüssel eine Grundsatz-debatte von viel größerer Tragweite begonnen. In einer spektakulären Wen-dung erachtet die EU-Kommission „Pushbacks“ unter Umständen neuerdings für rechtmäßig. Das ist heikel, weil Pushbacks an den Außengrenzen das in-dividuelle Asylrecht beseitigen. Continue reading >>
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30 January 2025
Feeble Recognition of a Systematic Pushback Practice
In A.R.E. v. Greece and G.R.J. v. Greece, jointly published at the beginning of 2025, the European Court of Human Rights (ECtHR) finally acknowledged Greece’s long-standing systematic practice of violently pushing people back at its land and sea borders. While this is already remarkable, both rulings stand out for the Court’s thorough evidentiary analysis and new standards for proving pushbacks. However, the ECtHR failed to fully incorporate the context of a systematic practice, instead maintaining a high threshold for evidencing individual instances of pushbacks. Continue reading >>
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07 January 2025
How the EU Commission Backs up Pushbacks at the EU-Belarussian Border
In December 2024, the European Commission issued a communication to the European Parliament and the Council discussing the current situation of so-called ‘hybrid threats’ at the EU-Belarussian border. With the goal of stopping irregular arrivals of migrants and its facilitation by Belarus and Russia, the EU Commission outlines how EU primary law, namely Art. 72 TFEU, could be utilized by Member States to circumvent the Common European Asylum System (CEAS) and curtail the protection afforded by fundamental rights for migrants. By advising member states to make use of this legal pathway for the current situation at the EU-Belarussian border, the EU Commission indirectly justifies the current pushback practices from Poland, Lithuania and Latvia. Continue reading >>
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04 September 2024
Nun also doch? Zurückweisungen von Asylbewerbern aufgrund einer „Notlage“
Die Dublin-Regeln verlieren nicht deshalb ihre rechtliche Bindungswirkung, weil sie praktisch schlecht funktionieren. Im Europarecht gilt nicht das völkerrechtliche Prinzip eines „Auge um Auge, Zahn um Zahn“, wonach ein Land eine Verpflichtung missachten darf, weil andere Länder dasselbe machen. Zahlreiche Urteile des EuGH bekräftigen seit Jahren, dass die Dublin-Regeln trotz aller Defizite verbindlich sind. Die Politik muss Gesetze ändern, die ihr nicht gefallen. Continue reading >>25 July 2024
Restitution for Pushback Victims
Despite the trauma caused by the brutality of pushbacks, victims often attempt to return to the expelling state’s territory, driven by desperation and the search for a better life. In doing so, they risk repeated violations of their rights. This vicious circle has to be broken. As reparation for the violation of their rights, restitution allowing for their return to the territory of the state responsible for the violation should be granted. This victim-centered approach allows their primary goal of re-entry into the state territory to be achieved through legal means. Continue reading >>
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10 May 2024
Legalising Illegality
Following Russia’s on-going facilitation of migrants to the Finnish border since last fall, Finland’s newly formed right-wing coalition government has closed the eastern land border indefinitely on 4 April 2024. Worried that this step will not be enough to ensure national security, the government is finalising a Draft Act on Temporary Measures to Combat Instrumentalised Migration, currently under revision.The draft bill allows for pushbacks in violation of non-refoulement and openly admits a conflict with Finland’s human rights obligations, EU law and own constitutional system, which is unusual. The unprecedented nature of the proposed measures is particularly worrying given that the Act appears unlikely to effectively address the essentially political problem that “migrant instrumentalisation” poses. Continue reading >>24 April 2024
Pushbacks From Europe’s Borders Enter the Mainstream
The Polish reckoning with the illiberal turn of the past years seemingly does not apply to the unlawful practice of pushbacks on the Poland-Belarus border. The unlawful practices, best exemplified by pushbacks, have come to be accepted in the European mainstream. The humanitarian crisis on the Poland-Belarus border and its handling by the new government, together with its rejection of the New Pact on Migration and Asylum, vividly illustrates this point. Continue reading >>
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02 April 2024
Refoulement As A Crime
Last month, the Italian Court of Cassation upheld the (suspended) sentence of one year’s imprisonment of the shipmaster of the Italian ship Asso28. He was convicted of two offences of abandonment for returning and handing around 100 migrants over to the personnel of a Libyan patrol boat, including some unaccompanied minors and pregnant women, whom he had previously rescued in international waters within the Libyan SAR zone. The case constitutes the first time an individual was held criminally responsible for failing to fulfil the duty of non-refoulement. Until recently, the refoulement duty has only served to exclude the liability of shipmasters who had complied with it whenever they were accused of facilitating irregular immigration. This case indicates the emergence of a new function of the principle, namely that of grounding the criminal liability of those who violate it. Continue reading >>20 December 2023
A Duty to Rescue
Reports of migrants drowning in the Mediterranean have, unfortunately, become more and more frequent in recent years. A recently published MSF report has highlighted the role ‘pushbacks and systematic non-assistance to those at risk of drowning proliferate’ play in this regard. The report refers specifically to two events that happened in 2023 in which national authorities failed to launch rescue operations despite receiving the information on migrants in distress at sea hours before the tragedy. In this blogpost, we assess whether a coast guard’s failure to act in situations of migrants in distress might violate an incumbent criminal law duty to rescue. We map the core elements of the duty to rescue under criminal law and how they might apply to such a chain of events, using the abovementioned event of 14 June as an example. Continue reading >>
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29 September 2023