When Law Migrates: Refugees in Comparative International Law

Abstract

The current European migration crisis has been playing out worldwide. As record numbers of migrants have fled their countries in recent years, wealthier states have had an increasing interest in restricting their borders to protect national security. The challenge of balancing domestic security interests with international human rights commitments has fallen to courts. Drawing on cases involving interdiction of migrants and refugees at sea from the U.S., Australia, and the European Court of Human Rights, this chapter will compare how the 1951 Convention Relating to the Status of Refugees has been interpreted across countries and over time. It will show how courts have permitted countries to circumvent the core prohibition of the Refugee Convention, and discuss when courts choose to intervene to enforce it. The chapter will conclude by analyzing the implications of these cases for extraterritorial application of domestic and international human rights guarantees.