Coloniality and Case Law on the Australian Asylum Offshoring Scheme (2023)

Mohammed Kazem, Even the shadow does not belong to them (2018), Biennale Lyon 2022

This article presents an analysis of case law from Nauru, Australia and Papua New Guinea concerning the Australian offshoring scheme for asylum seekers. Its specific focus is to enquire to what extent and how colonial conceptual and ideological patterns of thought play a role in the reasoning of the courts involved. The analysis shows the Australian averseness to have its external action in former colonies subjected to international (human rights) law; and the juggling of sovereignty so that it justifies the administration of policies in former colonies. However, it also shows resistance to this coloniality, be it from actors with relatively little power. These insist on application of well-developed international human rights norms to Australian administration of its policies in two former colonies, and to some extent incorporate international power relations into their sovereignty reasoning. Other courts in the global South have engaged more fundamentally with core assumptions of international migration law.

Coloniality and Case Law on the Australian Offshoring Scheme, International Journal of Migration and Border Studies, 7(2023)2, 132-148

Coloniality and Recent European Migration Case Law (2022)

This article interrogates European law as actively contributing to the undermining of migrants’ rights, since its inception. It claims that European case law in the area of migration is a continuation of a pre-existing characteristic: the tendency to privilege the interests of European states over those of migrants and of Europeans with transnational ties. The chapter thus examines the hypothesis that current-day migrants, being people from former European colonies, are subjected to a split form of legality that was perfected at the end of the colonial era. The legal system maintains the pretence of equality before the law while at the same time relegating colonial subjects to sub-standard legal protection by either excluding them from the application of human rights standards altogether or by lowering these standards. In addition to these two elements, a third legal governance technique with its origins in colonialism is the use of emergency powers themselves. Coloniality thus remains a structuring element of human rights law as it responds to migration. Naming and exposing this colonial structure may be helpful to the extent that it makes a legal and political critique possible, in addition to helping actors to navigate the field.

Coloniality and Recent European Migration Case Law, in Vladislava Stoyanova and Stijn Smets (eds), Migrants’ Rights, Populism and Legal Resilience in Europe, Cambridge University Press 2022, 117-138

Wissem Ben Hassin: Untitled (2018). Musée d’Art Moderne et d’Art Contemporain, Tunis; Collection of the Ministry of Cultural Affairs

The geopolitics of knowledge production in international migration law (2021)

This chapter addresses the involvement of academic research on international migration law in the political project of the global North to impose its view concerning international migration law on the global South. The purportedly well-established principle of international law that states have the right exclude foreigners has its origins in the US Supreme Court’s Chinese Exclusion case law. The doctrine holding that the right of exclusion is inherent in state sovereignty developed there has been adopted and transformed by the European Court of Human Rights. In order to show the continuing relevance of the Chinese Exclusion doctrine, I will analyse a rather everyday judgment of the European Court about boat people (J.R. et autres v Grèce 2018).  This will be contrasted with a judgment about boat people from the global South, issued by the Papua New Guinea (PNG) Supreme Court of Justice (Namah v Pato 2016). I will then show how the PNG judgment, and law from the global South more generally, is sidelined in academic work, while Strasbourg judgments are treated as embodying the state of international law (even when they are being criticised). I will analyse this as an act of power erasing sources of international migration law from the global South. As an example, I include bibliometrics on the International Journal of Refugee Law. I will close by showing that this erasure can be, and actually is being resisted within the discipline of international law.

Bifurcation of Mobility, Bifurcation of Law. Externalization of migration policy before the EU Court of Justice (2018)

Barnett Newman: Catehdra (1951), Stedelijk Museum Amsterdam

The externalization of European migration policy has resulted in a bifurcation of global human mobility, which is divided along a North/South axis. In two judgments, the EU Court of Justice was confronted with cases challenging the exclusion of Syrian refugees from Europe. These cases concern core elements of externalization, being third country agreements (the EU-Turkey Statement of March 2016) and visa requirements for refugees. This article seeks to analyze these judgments in the context of the broader developments in European migration law and policy. The core argument developed here is that the bifurcation of human mobility is reflected in a bifurcation of law. Excluded people are not merely to be excluded from European territory, but also from European law.

Bifurcation of people, bifurcation of law. Externalization of migration policy before the EU Court of Justice, Journal of Refugee Studies 31 (2018), p. 216-239

Analysing European Case-Law on Migration. Options for Critical Lawyers (2014)

This chapter addresses three ways in which lawyers can try to criticize the case law of European courts. The first is to re-analyse case law so as to expose its internal inconsistencies, which opens the possibility of arguing for a more consistent position. The European Court of Human Rights’ (ECtHR) case-law on judicial review in asylum cases is used as an example. The second strategy is to contrast the case-law as it stands to an alternative line of case-law which is just as valid, and thus open up the possibility of change. The European Court of Justice’s case-law on the family unity of EU citizens is used as an example. The third strategy is to bring into view an issue that has remained in the shadows as this may affect the outcome of a legal argument. The ECtHR’s case law on HIV positive aliens and Article 3 ECHRis used as an example.

Analysing European Case-Law on Migration. Options for Critical Lawyers, in Loïc Azoulai and Karin de Vries (eds): EU Migration Law: Legal Complexities and Political Rationales. The Collected Courses of the Academy of European Law, VOLUME XXI/2, Oxford University Press 2014, p. 188-218

Het debat over het Europese Hof voor de Rechten van de Mens (2012)

Het Europese Hof voor de Rechten van de Mens ligt onder vuur. Prominente Britse en Belgische rechters laten zich kritisch uit. Anderen schieten het Hof te hulp. Wat is de kern van de kritiek en de reactie daarop? En hoe moeten we het moment waarop, en de termen waarin, dit debat wordt gevoerd begrijpen?

Het debat over het Europese Hof voor de Rechten van de Mens, in Nederlands Juristenblad 2012, p. 254-262

Voor een fundamentele rechtswetenschap (2010)

Het Nederlandse onderzoek naar rechtsvinding moet een nieuwe wending nemen. In plaats van de apaiserende toon (‘De meeste zaken zijn gewoon duidelijk’) en de sussende normativiteit (‘Rechters moeten integer omgaan met de dilemma’s waarvoor hun taak hen plaatst’) komt het aan op een rigoreuzere analyse van d activiteit van de rechter.

Voor een fundamentele rechtswetenschap, in Nederlands Juristenblad 2010, p. 604 e.v.

Subsidiarity and ‘Arguability’: the European Court of Human Rights’ Case Law on Judicial Review in Asylum Cases (2009)

The European Court of Human Rights ’ case law on judicial review in asylum cases is not
entirely consistent. However, it can be interpreted as consistent if two presumptions are
accepted. First, that, as the Court’s role should be subsidiary to that of domestic courts,
domestic judicial review should at least be of the same quality and substance as the European
Court of Human Rights ’ review. Secondly, that the Court distinguishes between arguable
and non-arguable cases not just in the context of Article 13 ECHR and of the
admissibility of applications, but that this distinction is central to its entire case law about
the asylum procedure. This analysis results in a coherent doctrine on deadlines for submitting
evidence, the burden of proof, the intensity of judicial review, and suspensive effect. If
the Court understands its case law in this way, it can prevent it from becoming, in some
respects, a court of first instance.

Subsidiarity and ‘Arguability’: The European Court of Human Rights Case Law on Judicial Review in Asylum Cases, in International Journal of Refugee Law 2009, p. 48-74

Structural Instability: Strasbourg Case Law on Children’s Family Reunion (2009)

In this article, the case law of the European Court of Human Rights on children’s family reunion is examined. The argument is that the Court’s case law is necessarily inconsistent. This is so in part as a consequence of the structure of international legal argument, and partly as a consequence of the seeming normative conflict about the legitimacy of migration control. On both points, the Court is torn between two equally legitimate and equally untenable extremes, which forces the Court to take a centrist position and to acknowledge both the legitimacy and the untenable nature of any position. The main part of the article analyses how this takes shape in the legal technicalities in the judgements under review.

Structural Instability: Strasbourg Case Law on Children’s Family Reunion, in European Journal of Migration and Law 11 (2009), p. 271-293