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Lookup NU author(s): Dr Elena Katselli
This work is licensed under a Creative Commons Attribution 4.0 International License (CC BY 4.0).
Migration is a transnational phenomenon involving a plurality of states. However, the state of departure is often unwilling/unable to offer adequate protection and to control/hinder migration. The receiving state, as well as transit states, might refrain from engaging with the problem until migrants have entered their territory. Especially when sea intervenes, protection is feeble resulting in the death of people who take the risk of travelling to a new place in quest of safety and dignity. This paper engages with international human rights law to argue that states have a duty to offer (some) protection even when migrants are not in their territory. Analysis is based on the positive effect of human rights norms and the principle of due diligence. This allows making three arguments: First, because of the transnational nature of migration, all involved states have the responsibility to offer protection –to the extent that each one of them can, and in ways justified by their connection to the situation. This may lead to concurrent state liability for failure to protect. Second, when certain conditions are met, the duty of (multiple) states to protect extends to the high seas, even when the traditional links for the establishment of (extraterritorial) jurisdiction are absent. Finally, the duty is not unlimited; rather, it needs to prevail over other considerations.
Author(s): Tzevelekos V, Katselli E
Publication type: Article
Publication status: Published
Journal: Nordic Journal of International Law
Year: 2017
Volume: 86
Issue: 4
Pages: 427-469
Print publication date: 01/12/2017
Acceptance date: 02/10/2017
Date deposited: 04/10/2017
ISSN (print): 0902-7351
ISSN (electronic): 1571-8107
Publisher: Brill
URL: https://doi.org/10.1163/15718107-08604003
DOI: 10.1163/15718107-08604003
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