The Unauthorised Agent: Perspectives from European and Comparative Law

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The transfer of funds, know-how, and equipment, as in the cases referred to in the previous section, are considered to emanate from a spirit of solidarity with non-EU partners and to be fully in line with the relevant criteria.

The ethical distance between the EU or Member State gifting assets, ceding resources, or providing training and any potential human rights violations that may ensue is taken to preclude liability. There is no intent — no dolus specialis — intervening in the operation. Thus, the denial of responsibility on the European side for the atrocities in Libya, the abuses in Turkey, or the fatalities at sea associated with border-induced displacement, commonly recurs.

In his decision, the judge takes as proven the crucial role played by Italy in leading LYCG operations.

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The financing or training of the LYCG alone may be harmless and perfectly licit, but, when taken together and alongside the infiltration of the command-and-control chain of the LYCG by the Italian Navy, the whole , in light of the final outcome of pull-backs, becomes an illicit under international law. Direct perpetration of an international wrong is not a pre-requisite for legal responsibility.

Indirect contraventions — including via proxy — incur liability as well. The EU and its Member States must come to recognise the predictable effect and implications of their externalization agenda. With EU Member States viewing the opening up of legal escape routes as an irrational concession, the side-effects of externalization are exacerbated as the systemic logic of asymmetric, diffused, and denied responsibility for displaced persons is reproduced further and further away from Europe, and closer and closer to the repressive regimes people attempt to escape from.

The reactionary and regionalist assumptions underpinning externalization arguments and practices tell a securitized tale of displacements constantly generated and managed far removed from European territory and agency. At the same time, the European transfer of equipment and capacity for control outwards also risks undermining processes of accountability and democratic legitimacy in regions bordering Europe.

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This is not to contest the legal existence of borders or their enforcement, but to challenge the legitimacy of mechanisms through which they are presently enacted in a manner incompatible with the most basic requirements of international law. These concern how to determine the proportional and legitimate levels of coercion that the access to asylum would allow, whether asylum procedures are deliberative in the manner required to fulfill the conditions of autonomy, etc.

Miller and Abizadeh disagree on the boundaries of the demos involved, but this is not crucial to the stated version of the externalization argument. Arguably, the assumption of such asymmetry reflects the norms of Cold War migration geopolitics, epitomized by the condemnation of the Berlin Wall, and emphasizing the ethical value of allowing individuals persecuted by totalitarian regimes to exit territories.

But today, the border control systems of European countries, purportedly liberal democratic, also involve practices of walling, fencing, and exit control.

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See also V Moreno-Lax n 4 ch 8 on the extraterritorial application of non-refoulement and its legal nature in international law. For an elaboration and further references, see V Moreno-Lax n 4 chs 8 and On the requirements of investigations, see paras See eg Al-Saadoon and Mufdhi n 68 ; M. On the workings of the principle of solidarity and fair sharing of responsibility, see V Moreno-Lax n For the general trend, see Mare Clausum n See also HRC n Click here to cancel reply.

Border-induced displacement: The ethical and legal implications of distance-creation through externalization by V. Moreno-Lax and M. Introduction: The role of distance The externalization of European border control can be defined as the range of processes whereby European actors and Member States complement policies to control migration across their territorial boundaries with initiatives that realize such control extra-territorially and through other countries and organs rather than their own.

Ethical distance-creation: Examining attempts to justify externalization and border-induced displacement Although immigration ethics has thrived as a discipline since its late arrival in the s, debates on border control between cosmopolitanism and liberal nationalism have often remained at an ideational level and generally based on liberal democratic foundations, [8] thus overlooking the composite ways through which border control is realized and experienced on the ground.

The democratic legitimacy question One fundamental debate has concerned the democratic legitimacy of border control as such. Next post Comparative law and international law: inevitable liaisons? Problem URL. Describe the connection issue. SearchWorks Catalog Stanford Libraries. The unauthorised agent : perspectives from European and comparative law.

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