Showing papers by "Gregor Noll published in 2006"

Asylum claims and the translation of culture into politics

Abstract: Since the early 1990s, we have witnessed how the system of asylum law reacts to the relativization of the nation-state in the global domain. The growing emphasis on cultural aspects in the conceptualization of "being persecuted" has stressed the dimension of positive obligations. This emphasis has widened the discretionary margin of decision makers. The substantive vacuum at the "human rights core" of the concept of "being persecuted" is a precondition for processes of acculturation through the asylum procedure. In asylum decisions, constructions of a particular cultural identity are cloaked in the universal language of human rights. A central role is played by the assessment of credibility of the applicant, which is modeled on the Christian practice of auricular confession. An applicant is credible where her "true identity" and that of the state of asylum correspond. Credibility assessments are but a reconfirmation of the identity of the asylum state and its protagonists. (Less)

Diplomatic Assurances and the Silence of Human Rights Law

Abstract: Certain states resort to diplomatic assurances to facilitate and legitimise the removal of non-nationals to third states with dubious human rights records. Typically, these removals involve two countries where human rights are conceived of in different ways and institutionalised to different degrees. Given their practical importance in the U.S. programme of "extraordinary renditions" as part of the ongoing "war on terror", diplomatic assurances have definitely moved into the domain of high politics. Earlier, such assurances were mainly seen as a migration control tool. Now, cases are reported where they provided a prelude to the interrogation, or incapacitation of perceived enemies in less protective jurisdictions. In this working paper, I argue that the combination of diplomatic assurances and rendition represent a contemporary form of ban. Their main function is to perform a double move: to assure the rendering community of its own faithfulness to human rights law, while the captive is given to human rights law in its withdrawal. This argument is developed in three main steps. First, I will explore the effects of diplomatic assurances on the international law of human rights. In Section 2, I shall demonstrate that a specific diplomatic assurance constitutes an agreement to disagree on the precise content of the torture prohibition in international human rights law. Section 3 explains why diplomatic assurances must be regarded as treaties under international law. In Section 4, I explore the uneasy relationship between diplomatic assurances and multilateral human rights instruments, with treaty law unable to reduce ambiguity. Second, I will attempt to explain the structures of which diplomatic assurances form part, and show how such assurances deny the articulation of human rights violations on multiple levels: by courts, by the captive, by the monitoring diplomat, and by the norm itself. Section 5 will be devoted to this task. Finally, in the last step, I will argue that the silence thus produced is not accidental, but must be seen as an integral part of the productivity of human rights law in a system of nation-states.

Diplomatic assurances and the silence of human rights law

Abstract: Certain states resort to diplomatic assurances to facilitate and legitimise the removal of non-nationals to third states with dubious human rights records. Typically, these removals involve two countries where human rights are conceived of in different ways and institutionalised to different degrees. Given their practical importance in the U.S. programme of "extraordinary renditions" as part of the ongoing "war on terror", diplomatic assurances have definitely moved into the domain of high politics. Earlier, such assurances were mainly seen as a migration control tool. Now, cases are reported where they provided a prelude to the interrogation, or incapacitation of perceived enemies in less protective jurisdictions. In this working paper, I argue that the combination of diplomatic assurances and rendition represent a contemporary form of ban. Their main function is to perform a double move: to assure the rendering community of its own faithfulness to human rights law, while the captive is given to human rights law in its withdrawal.This argument is developed in three main steps. First, I will explore the effects of diplomatic assurances on the international law of human rights. In Section 2, I shall demonstrate that a specific diplomatic assurance constitutes an agreement to disagree on the precise content of the torture prohibition in international human rights law. Section 3 explains why diplomatic assurances must be regarded as treaties under international law. In Section 4, I explore the uneasy relationship between diplomatic assurances and multilateral human rights instruments, with treaty law unable to reduce ambiguity.Second, I will attempt to explain the structures of which diplomatic assurances form part, and show how such assurances deny the articulation of human rights violations on multiple levels: by courts, by the captive, by the monitoring diplomat, and by the norm itself. Section 5 will be devoted to this task. Finally, in the last step, I will argue that the silence thus produced is not accidental, but must be seen as an integral part of the productivity of human rights law in a system of nation-states. (Less)

From 'protective passports' to protected entry procedures? the legacy of Raoul Wallenberg in the contemporary asylum debate

Abstract: Levine launched the concept of 'bureaucratic resistance' to describe the role of protectors assumed by civil servants. This effort was backed up by the Swedish government, and reinforced substantially with the arrival of Raoul Wallenberg, who contributed the idea of 'protective passports'. Protected Entry Procedures allow states to bypass human smugglers and to communicate directly with the potential migrant: dissuading those with weak claims or no claims at all, and offering documented and legal migration to those fulfilling the set criteria. Protected entry procedures are characterized by legal predictability rather than political expediency. It is to be hoped that the European Commission will succeed in engaging Member States in a serious discussion on the role of Protected Entry Procedures in the future Common European Asylum System. Keywords: bureaucratic resistance; Common European Asylum System; European commission; legal predictability; protected entry procedure; protective passport; Raoul Wallenberg

From Protective Passports to Protected Entry Procedures? the Legacy of Raoul Wallenberg in the Contemporary Asylum Debate

Abstract: Levine launched the concept of 'bureaucratic resistance' to describe the role of protectors assumed by civil servants. This effort was backed up by the Swedish government, and reinforced substantially with the arrival of Raoul Wallenberg, who contributed the idea of 'protective passports'. Protected Entry Procedures allow states to bypass human smugglers and to communicate directly with the potential migrant: dissuading those with weak claims or no claims at all, and offering documented and legal migration to those fulfilling the set criteria. Protected entry procedures are characterized by legal predictability rather than political expediency. It is to be hoped that the European Commission will succeed in engaging Member States in a serious discussion on the role of Protected Entry Procedures in the future Common European Asylum System. Keywords: bureaucratic resistance; Common European Asylum System; European commission; legal predictability; protected entry procedure; protective passport; Raoul Wallenberg