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The New Zealand Yearbook of International Law is an annual, internationally refereed publication intended to stand as a reference point for legal materials and critical commentary on issues of international law. The Yearbook also serves as a valuable tool in the determination of trends, state practice and policies in the development of international law in New Zealand, the Pacific region, the Southern Ocean and Antarctica and to generate scholarship in those fields. In this regard the Yearbook contains an annual ‘Year-in-Review’ of developments in international law of particular interest to New Zealand as well as a dedicated section on the South Pacific.

This Yearbook covers the period 1 January 2017 to 31 December 2017.
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Exile within Borders

A Global Look at Commitment to the International Regime to Protect Internally Displaced Persons

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Gabriel Cardona-Fox

Twenty years after the introduction of the UN Guiding Principles for the Protection of Internally Displaced Persons, very little is known about their effectiveness in altering state behavior towards their displaced populations.
In this book Gabriel Cardona-Fox takes a systematic and global first look at patterns of commitment and compliance with the IDP regime. Through the innovative use of statistical analysis on all documented cases of displacement and an in-depth case study of Colombia’s evolving response towards internal displacement, this book identifies the domestic and international forces that drive some states to institute and comply with these guidelines.
Exile Within Borders fills an important gap in the literature and moves the debate over the regime’s effectiveness beyond anecdotal evidence.
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Edited by Vladislava Stoyanova and Eleni Karageorgiou

Understanding the realities of protection in a Europe that had failed to manage the crisis in asylum that unfolded in 2015 and 2016 requires a comprehension of how law shapes and distorts refugee protection practices in frontline states. In this collection Vladislava Stoyanova and Eleni Karageorgiou provide an essential cartography of the state of asylum during the crisis. The volume captures four dynamics: the absorption of EU norms in Central and South Eastern Europe; the reaction in this region to the massive movement of asylum seekers in 2015 and 2016; the initiation of normative developments in the area of asylum during and beyond the crisis by the countries in this region; and the question of solidarity.
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The Internal Protection Alternative in Refugee Law

Treaty Basis and Scope of Application under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol

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Jessica Schultz

Under what circumstances can a state refuse refugee status to a person whose risk of persecution exists in only part of her country of origin? This book is the first monograph to examine the treaty basis and criteria for the ‘internal protection alternative’ (IPA), an exception to refugee status increasingly invoked by state parties to the 1951 Refugee Convention and its 1967 Protocol. Through a critical analysis of the relationship between refugee law and related fields, Schultz finds that the legal scope for IPA practice is narrower than is commonly claimed. Since persons subject to an IPA analysis have a well-founded fear of persecution within their countries of origin, any limit on their right to refugee status must involve a careful balancing of the impact of continued displacement against the state's interest in preserving its restricted protection resources. She argues that the doctrine of implied limits in human rights law can provide analytic structure to the IPA concept and reduce the risk of overly broad application.
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Edited by Sergio Carrera, Arie Pieter Leonhard den Hertog, Marion Panizzon and Dora Kostakopoulou

This collective volume draws on the themes of intersectionality and overlapping policy universes to examine and evaluate the shifting functions, frames and multiple actors and instruments of an ongoing and revitalized cooperation in EU external migration and asylum policies with third states. The contributions are based on problem-driven research and seek to develop bottom-up, policy-oriented solutions, while taking into account global, EU-based and local perspectives, and the shifting universes of EU migration, border and asylum policies. In 15 chapters, we explore the multifaceted dimensions of the EU external migration policy and its evolution in the post-crisis, geopolitical environment of the Global Compacts.
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Marion Panizzon

Preceding the 2015/16 refugee “crisis”, aid conditionality and visa relaxation topped the list of leverages at the EUs disposal to enlist third-country cooperation in the fight against irregular migration. To correct some shortcomings of its resettlement policy, in particular the low intakes, the EU in the Jordan Compact experiments with keeping refugees employed abroad instead. In what is known as the EU-Jordan Compact, rules of origin under the wto Generalized System of Preferences (gsp) are relaxed on goods produced with refugee labor to compensate Jordan for issuing work permits to keep Syrian refugees close to home. This chapter discusses the Jordan Compact as an example of a “multidimensional” migration policy which interconnects three policy frames—EU trade-for-all strategy, the European Agenda on Migration’s Partnership Priorities and revised Neighbourhood Policy, but fails to qualify for multi-level governance (mlg) due to incoherence with wto and EU law. Drawing on a sub-set of regime theory, issue-linkage, we argue that the Compact, “new” approach of turning “crisis into a development opportunity”, is instead about experimenting with trade conditionality as a way to change the quality of the EU enp level-playing-field, the mobility paradigm of the EU gamm and the market-based preferentialism of the EU/wto Everything-but-Arms scheme into what becomes a one-time exception. Hailed for its humanitarian livelihood programming’, the implementation of the Compact in practice transforms a “development opportunity” into another deterrence strategy—not ex post, through readmission agreements, but ex ante, through work permits.

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Mario Savino

Border externalization is a rational response to the structural flaws of the European return policy and to the need to regain control over migration flows to Europe. The same policy, though, is legally vulnerable, both because it relies on a set of undifferentiated non-entrée measures precluding legal access to asylum, and because it shifts the responsibility on third cooperating states without immunizing the sponsoring European States. This analysis suggests, first, that it is necessary to abandon the reassuring but obsolete assumption that asylum systems may function as territorially confined regime; second, that the creation of meaningful legal pathways is not only a moral and political imperative, but also a way to redeem the current European migration and asylum policy from its major legal flaws; third, that an EU-wide resettlement program, aimed at protecting vulnerable refugees, might be a pragmatic option. The protection of the most vulnerable ones is a primary “global good”. If EU Member States accept to bear a proportional burden, this might contribute to a legally sound border externalization policy and to the gradual recognition of a positive right to resettlement –limited to those refugees whose special needs of protection cannot be met in less developed countries of refuge.

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Tamás Molnár

During the last 25 years, EU law became more open to international law and engaged with it in different forms of interactions. The EU migration acquis has always been largely inspired by international migration law and human rights law. Infiltration of internationally protected human rights which are of particular significance for foreigners has been an implicit form of this normative influence in the EU return acquis. These norms include the principle of non-refoulement, the best interests of the child, the right to respect for family life, or the humane and dignified detention conditions. The EU Return Directive (2008/115/EC) refers quite a few times to international law, including human rights law. This showcases that the co-legislators had a fairly international law friendly vision. In contrast to this Völkerrechtsfreundlichkeit of the EU legislature, the Court of Justice of the EU has been rather reluctant so far to refer to international human rights law or to the principle of non-refoulement when interpreting the Return Directive. Despite the expanding case-law relating to the Directive, the EU Court seemed to be unwilling to step out of the EU law framework. The chapter pursues three goals. It first explores the possible reasons and motivations behind the EU Court’s more guarded approach towards international law in return policy. Second, here, at the intersectionality of laws, one can clearly witness the EU Court’s firm preference to one of the competing legal orders, but more research is needed to fully unveil why the EU Court squeezes out other norms of international origin when interpreting and further developing the edifice of EU return law. Third, the chapter aims to find explanation to the controversial perception of the role and place of international human rights law in the context of the Return Directive and why different EU institutions (legislature v. judiciary) follow diverging treatment of international law when shaping the EU return acquis.

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Sergio Carrera

This Chapter examines the implementation dynamics and outputs of informal EU readmission arrangements with selected African countries, using a diachronic frame of pre- and post-2015 European crisis assessment. Readmission arrangements are understood as instruments or tools not formally qualifying as EU Readmission Agreements, which are officially presented as political (non-legally binding) or practical/operational in nature. They constitute extra-EU Treaties modes of transnational law enforcement on the management of migration and expulsion of irregular immigrants. The Chapter argues that their blurred legal nature and lack of transparency makes of them policy ghosts in search of EU normative identity. They also constitute venues – intersecting policy universes – where various political and law enforcement actors seek the right interlocutors to pursue their interests and build alliances on readmission priorities. EU readmission arrangements raise profound legal uncertainty challenges; not only as to whether they create new legal obligations and affect the rights of individuals, but also regarding their relationship with the EU rule of law, democratic accountability and fundamental rights standards enshrined in the Lisbon Treaty.

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Andrew Geddes and Luca Lixi

This chapter analyses the expanding nature of the EU’s external migration governance network, focusing on the case of EU-Tunisia migration relations. It develops an actor-centred perspective on migration governance, analysing how the ‘intersection’ of policy universes that followed the so called European migration crisis has led to the inclusion of new actors with new understandings to this governance system. As such, it shows how the EU does not act as a monolithic actor when ‘going abroad’ with its policies and instruments. Instead different policies and relations are developed by actors that often have different understandings of migration and of the challenges it poses, thereby developing their actions based on different priorities. Recognizing two main frames on the basis of which such actors develop their actions -a securitized frame based on the perception of the threat of a migrant invasion, and a migrant centred frame largely focused on the migrant’s experience- the chapter shows the extent to which this system of migration governance plays a key role in defining the challenges with which it is confronted, driving like this relations on migration between the EU and Tunisia.