immigration human rights law Flashcards
(29 cards)
Jamaa v. Italy (2012)
- ECHR case
- Findings of the court:
○ Italy’s practice of intercepting vessels carrying asylum seekers is a violation of ECHR
- Findings of the court:
Zadyvdas v. Davis (2001)
US Supreme Court - set the limit of detention to 6 months
In no cases shall administrative detention to indefinite detention (no set time limit, freedom restrained serially)
Hamdan v. Rumsfeld (2006)
Court findings: Guantanamo detainees (unlawful army combatants, acc to the US) are entitled for the writ of habeus corpus
Principle of non refoulment
cannot forcibly deport refugees where they face serious threats of persecution
Principle of non discrimination
shall not discriminate against refugee
Initially, an asylum seeker - then given the status of refugee
Principle of non penalization
cannot be criminalized for illegal entry
(Application of principle not that consistent or strictly applied Example - ECtHR - Spain did not violate when it deported migrants who did not go through proper procedures of entry)
Hawaii vs Trump (2018)
Sues Trump for its immigration policies
US SC -
○ rejects the precedence of Korematzu’s case
○ Certain entry bans for certain nationals are not illegal - are for national security
open border (utopian) theories
- Most popular - Joseph Carens
- Immigrants enrich the diversity in the receiving state - diversify the economic environment
- Actually, people who made up north america were immigrants - immigrants had a positive impact
- Immigrants skilled in diff areas - can contribute to diff sectors of economy
Wheel of ignorance - favoring the most disadvantaged sectors of society
realist (dystopian)
- Most popular - Samuel Huntington
- In wake of Cold War, when states were in euphoria over victory over Russia - start of new era of new conflicts - conflicts are cultural - each civilization has did worldviews - globalization may lead to a clash of civilizations
- Hence, presumably a never ending clash
- Tried to warn the US amidst the upcoming wave of migration - 9/11 attacks
jurisdiction
legal authority’s power to make and enforce laws, adjudicate disputes, and administer justice
jurisidiction classification based on who exercises jurisdiction authroity
- prescriptive jurisdiction
- adjudicative jurisdiction
- enforcement jurisdiction
prescriptive jurisdiction
authority to make rules (parliament authority)
For ex- we live in Canada, so house of commons hold jurisdiction to make laws regarding our daily lives
adjudicative jurisdicition
who holds the authority to judge rules (judicial authroity)
Enforcement jurisdiction
power to enforce those laws in practice{executive authority}
Classification based on subject matter of jurisdiction
- territorial jurisdiction
- personal jurisdiction
- passive personality jurisdiction
- universal jurisdiction
- protective jurisdiction
territorial jurisdiction
state has jurisdiction over crimes committed within its territory, regardless of the nationality of the perpetrator or the victim
most accepted and least controversial jurisdiction
example: nuremberg trials
- even tho elements of universal jurisdiction, germany was the territory where Nazi crimes were committed - allied powers asserted jurisdiction bec crimes occured in europe
states exploiting territorial dynamics to circumvent their territorial jurisdiction
intercepting migrant ships in international waters
sending detainees to Guantanamo
personal (nationality) jurisdiction - extraterritorial jurisdiction
state may exercise jurisdiction over crimes committed by its nationals, even if they occur abroad
invented by french law - civil law concept
examples:
- rwanada genocide cases - european countries like FR and BLG - prosecuted Rwanadan citizens living in their territories for crimes committed in Rwanda genocide
-jabbar el banna case - UK attempted to intervene on behalf of UK nationals detained in guantanamo bay - had jurisdiction bec british citizens
subject matter jurisdiction
legal body’s authority to hear cases involving specific types of issues - HR violations, genocide, or war crimes
ICC - genocide, crimes against humanity, war crimes, and aggression
ECtHR and IACTHR - HR violations by state actors
ex- Bosnian war crime trails
passive personality jurisdcition
a state can claim jurisdiction when its nationals are victims of crimes committed abroad
ex- achille lauro hijacking - palestianian militants hijacked italain cruise shipand murdered a US citizin - US asserted passive personality jursidction as victim was American
extradition treaties
state may deport an immigrant, asylum seekers who are suspected criminals to the states where the crimes happen
For ex- france and US never had an extradition treaty - so common for US nationals to commit crime in the US and flee to France bec French police cannot arrest the US national bec no extradition treaty
execption to extradition treaty
commit a crime in the state where there is a death penalty for that crime and then flee to another state , then even after extradition treaty cannot extradite you to the country the crime was committed
i) Comes after Soering. v UK
- Son of a famous diplomat living in US - tgt with a british lady, conspire to kill the parents of british lady - killed in US and then both go and flee to live in UK- after a year 2 of them arrested in the UK - authorities want to extradite soering to the US (as US had death penalty and they had extradition treaty and UK did not have territorial or personal jurisdiction over Soering) - Soering took the case to ECtHR - needs also to be an agreement regarding extradition also
universal jurisdiction
any state can prosecute certain crimes regardless of where they occurred and regardless of the nationality of perpetrator or victim
- Reserved for 2 types of crimes
i. Mass atrocities crimes
◊ War crimes
◊ Genocide
◊ Aggression
◊ Crimes against humanity
◊ Terrorism (included sometimes)
ii. Treaty crimes - crimes that can question the intl order - crimes established by different treaties
◊ For ex - piracy - any states that arrest pirates can adjudicate the crimes - treaty crime
◊ For ex- human trafficking
◊ For ex - hijacking crimes -
◊ For ex - terrorism
◊ For ex- drug trafficking
Example: Pinochet Case (UK/Spain/Chile)
- Chilean dictator arrested in UK based on Spanish warrant - for crimes including torture and enforced disappearances
protective jurisdiction
a state may claim jurisdiction over actions committed abroad that threaten its national security or govt functions - crimes including espionage, currency forgery, terrorism
ex- Eichmann case - Adolf Eichmann , key architect of Holocaust abducted by Israeli agents in Argentine and tried in Israel - universal jurisdiction but also israel claimed protective jurisdiction as crimes against jewish ppl and state of israel endangered its core interests
least often invoked
