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Human Rights and the Border notes all lectures (lecture 1-7)
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Introduction lecture for non-legalstudents
Asylum and migration law: different sources of law
- National law: this was, in the past, most common. States dealt with migration law in their
own way. In the 1960s the Netherlands had a lot of guest immigrants the migration law
was back then a national law. National Law is still a very important layer.
- International Law: Before the ‘EU Law’. The Geneva convention is an example.
- EU Law
Council of Europe European Court of Human Rights European Convention on Human Rights
Geneva convention = the refugee convention.
Important International law
- Convention on the Rights of the Child
- The Geneva convention the rights to seek asylum.
General: Division in Law
- Public Law: vertical relation state – citizens. You ‘as a citizen’ ask permission by the
government to do something. You ask for something.
- Private Law: horizontal relation citizens – citizens
- Criminal law:
- Civil law: unjustfull act. Someone did you wrong.
- Administrative and Constitutional law
And ‘mixed fields’ of law, for example migration law:
- Labour migration
- Carrier sanctions
- Integration tests
- Refugees, family reunification
- Criminalisation,…
Criminal Law
Organizations who traffic people (like airports) can be punished if they traffic people without the
valid documents.
Sources of Law: International Law
Treaties
- United Nations: Geneva or refugee convention; convention against torture; convention
against discrimination; convention on the rights of the child.
- Council of Europe: European Convention for human Rights, European Social Charter
Decisions of international organisations:
- Security Council: terrorist lists (list of people who will be banned by the borders + their bank
accounts will be frozen); resolutions
- Committee of Ministers (CoE): recommendations
, Case-law: International Court of Justice (court for problems/wars between states); ECtHR, Committee
against Torture (CAT)
After 9/11 more restriction on migration.
International Law in the national legal order
When are international treaties binding for the national legal order?
- Signature by representatives of states (at adoption of Treaty). There should be agreement.
- Ratification (registration with the registration office of treaty)
- Entry into force (when sufficient ratifications, at specific time: provided in treaty itself)
Treaties with individual rights/state obligations:
- For Monist states (NL, Belgium): directly binding. After the legal process of signature,
ratification and entry into force.
- For Dualist states (UK, Germany): Must be translated in national law. After legal process, it
must still be translated in national law.
Difference Council of Europe and European Union
- Council of Europe: Human rights organization, 1949 Strasbourg, 47 states, including Russia
and Turkey
o Institutions:
Committee of Ministers
Parliamentary Assembly
European Court for Human Rights (ECtHR)
Data Protection Convention: the use of data exchange can harm your (citizens) privacy
- European Union:
o Economic cooperation between six states in 1957, the EEC
o Since 2013: 28 member states
o Institutions:
EU Council (Justice and Home affairs, agriculture and Fisheries,…)
European Council (Heads of states)
European Commission
European Parliament
Court of Justice (CJEU)
European Ombudsman
+ 44 agencies (Euratom, EMA, Eurojust, Europol, EASO, FRONTEX, euLISA….)
EU Law: General
- Regulations (directly binding)
- Directives (must be transformed to national law)
- EU = supranational legal order.
- Case-law CJEU: Interpretation of EU law, binding for member states. Court of Justice of the
European Union. Main task: giving advice. Example: I go to the national court because I don’t
have a valid permit to stay in the country. The country (court national level) does not know
what it must do, so it will ask explanation by the CJEU. They will advise.
COE: European convention on Human Rights
ECHR (Rome, 4 November 1950) and migrants:
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