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E-raamat: Border Deaths at Sea under the Right to Life in the European Convention on Human Rights [Taylor & Francis e-raamat]

(VU Amsterdam, The Netherlands)
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"This book focuses on border deaths at sea. It unravels how the interplay of the law of the sea and rules on jurisdiction widen the opportunity for states to make and enforce rules outside their territory, and questions whether this is also accompanied with an obligation to respect the right to life under the European Convention on Human Rights (ECHR) when doing so. By embarking upon the challenge of analysing a cross-border phenomenon in which direct encounters between state agents and the victims are few through the lens of legal obligations, the book unearths avenues for arguing that the ECHR is applicable to border deaths on the high seas and showcases the Court's creativity in bridging the gap between the Convention and people in need of protection.Furthermore, it demonstrates that the ECHR is applicable to border deaths occurring within the territorial seas of states. It discusses the right to life, as well as the specific obligations of states in respect to border deaths at sea, and demonstrates that in many instances, EU policies fall short of the standards set under the right to life. This book will be of key interest to scholars, students and practitioners in migrant rights, international human rights law, public international law including, refugee and migration law, maritime law, and security studies"--

This book focuses on border deaths at sea and unravels how the interplay of the law of the sea and rules on jurisdiction widen the opportunity for states to make and enforce rules outside their territory. It questions whether this is also accompanied with an obligation to respect the right to life under the ECHR when doing so.

About the Author xii
Preface xiii
Acknowledgements xv
List of Abbreviations
xvi
1 Introduction
1(8)
1 Structure
2(2)
2 Methodology
4(1)
3 Limitations
4(2)
4 Terminology
6(2)
5 References
8(1)
2 Do European Immigration Policies Cause Border Deaths?
9(8)
1 Views of Academics and Policymakers
10(1)
2 Data on Border Deaths
11(1)
3 Conclusion
12(3)
4 References
15(2)
3 The Legal Landscape of Border Deaths at Sea
17(25)
1 The Term `Jurisdiction'
18(3)
1.1 Prescriptive and Enforcement Jurisdiction
18(1)
1.1.1 Prescriptive Jurisdiction
19(1)
1.1.2 Enforcement Jurisdiction
19(1)
1.1.3 No Strict Hierarchy of Jurisdictional Bases
20(1)
1.2 Rules and Policies with Extraterritorial Effects
20(1)
1.3 Conclusion on Prescriptive and Enforcement Jurisdiction
21(1)
2 Jurisdiction at Sea
21(5)
2.1 Nationality of Ships
22(1)
2.2 Internal Waters, Territorial Sea and Contiguous Zone
22(1)
2.3 High Seas
23(2)
2.4 Conclusion on Jurisdiction at Sea
25(1)
3 Removal of a Territorial and National Link
26(1)
4 Search and Rescue
27(4)
4.1 The Duty to Assist in Distress
28(1)
4.2 Practical Problems
28(2)
4.3 The SAR System Cannot Systematically End Border Deaths at Sea
30(1)
4.4 Conclusion on Search and Rescue
30(1)
5 Conclusion on the Legal Landscape of Border Deaths at Sea
31(7)
6 References
38(4)
4 Application of the ECHR to the Extraterritorial Effects of Immigration Policies
42(68)
1 The Effective Control Concept
43(7)
1.1 The Doctrine of Effective Control
43(1)
1.1.1 The Core: Effective Control over Territory or Persons
44(2)
1.1.2 Alternative Grounds for Extraterritorial Application
46(1)
1.1.3 What Kind of Control
47(1)
1.1.4 The Degree of Control Required
48(1)
1.2 Conclusion on the Doctrine of Effective Control
49(1)
2 Cases Deviating from the Effective Control Concept
50(45)
2.1 Cases Involving Vessels
51(1)
2.1.1 Hirsi Jamaa and others v Italy
51(2)
2.1.2 Bakanova v Lithuania
53(2)
2.1.3 Kebe and others v Ukraine
55(1)
2.1.4 Conclusion on Cases Involving Vessels
56(1)
2.2 Cases Concerning Extraterritorial Effects of Legislative or Administrative Measures
57(1)
2.2.1 Kovacic and others v Slovenia
58(3)
2.2.2 Stephens v Malta
61(1)
2.2.3 Conclusion on Cases Concerning Extraterritorial Effects of Legislative or Administrative Measures
62(1)
2.3 Cases Concerning Article 56 ECHR
62(1)
2.3.1 Quark Fishing Ltd. v United Kingdom
63(1)
2.3.2 Chagos Islanders v United Kingdom
64(1)
2.3.3 Conclusion on Cases Concerning Article 56 ECHR
65(1)
2.4 Cases Concerning the Extraterritorial Effects of Force
65(2)
2.4.1 Pad and others v Turkey
67(1)
2.4.2 Kallis and Androulla Panayi v Turkey
68(1)
2.4.3 Andreou v Turkey
69(1)
2.4.4 Al-Skeini and others v the UK
70(2)
2.4.5 Conclusion on Cases Concerning the Extraterritorial Effects of Force
72(2)
2.5 Cases Concerning the Lack of Control within the State
74(1)
2.5.1 Assanidze v Georgia
74(3)
2.5.2 Conclusion on the Cases Concerning the Lack of Control within the State
77(1)
2.6 The Ilascu Line of Cases
77(1)
2.6.1 General Background to the Situation in Transdniestria
78(1)
2.6.2 Facts in the Case ofIlascu
79(1)
2.6.3 Jurisdiction Ratione Temporis
80(1)
2.6.4 Jurisdiction Ratione Loci of Moldova
80(4)
2.6.5 Jurisdiction of Russia
84(6)
2.6.6 Conclusion on the Ilascu Line of Cases
90(1)
2.7 Distinguishing Between Difficulties of Implementation and Lack of Control
91(1)
2.7.1 Sargsyan v Azerbaijan
91(1)
2.7.2 Conclusion on the Case of Sargsyan
92(1)
2.8 Conclusions from the Court's Case Law
93(2)
3 Conclusion on the Application of the ECHR to the Extraterritorial Effects of Immigration Policies
95(12)
4 References
107(3)
5 The Right to Life and Extraterritorial Effects of Immigration Policies
110(59)
1 The Duty to Prevent the Loss of Life
111(20)
1.1 Scope of Application
111(2)
1.1.1 The Identity of the Potential Victim
113(2)
1.1.2 Knowledge about the Risk
115(1)
1.1.3 The Nature of the Risk
116(6)
1.1.4 Circumstances Precluding the Application of the Duty to Prevent the Loss of Life
122(3)
1.1.5 Conclusion on the Scope of Application of the Duty to Prevent the Loss of Life
125(1)
1.2 Measures Required to Prevent the Loss of Life
126(5)
1.3 Conclusion on the Duty to Prevent the Loss of Life
131(1)
2 The Duty to Protect the Right to Life by Law
131(4)
2.1 Scope of Application
132(1)
2.2 Measures Required Under the Duty to Protect the Right to Life by Law
132(3)
2.3 Conclusion on the Duty to Protect the Right to Life by Law
135(1)
3 The Duty to Respond Adequately to the Loss of Life
135(12)
3.1 The Scope of Application of the Duty to Respond Adequately
136(1)
3.2 The Ratio of the Duty to Respond Adequately
137(2)
3.3 Requirements under the Duty to Respond Adequately
139(7)
3.4 Conclusion on the Duty to Respond Adequately to the Loss of Life
146(1)
4 The Right to Life and the Effects of Immigration Policies
147(13)
4.1 Applicability ofArticle 2 to the Loss of Life at Sea
147(1)
4.1.1 The Duty to Prevent the Loss of Life
148(2)
4.1.2 The Duty to Protect the Right to Life by Law
150(1)
4.1.3 The Duty to Respond Adequately to the Loss of Life
150(1)
4.1.4 Conclusion on the Application of Article 2 to the Loss of Life at Sea
151(1)
4.2 Measures Required under the Right to Life with Respect to the Loss of Life at Sea
151(1)
4.2.1 The Duty to Prevent the Loss of Life
151(1)
4.2.2 The Duty to Protect the Right to Life by Law
152(1)
4.2.3 The Duty to Respond Adequately to the Loss of Life
152(1)
4.3 Circumstances Relevant to Most Border Deaths
152(1)
4.3.1 The Loss of Life at Sea as a Structural Problem
152(3)
4.3.2 Agency of Migrants and Asylum Seekers
155(2)
4.3.3 Migrants and Asylum Seekers as an Identifiable Group
157(2)
4.4 Conclusion on the Measures Required under the Right to Life
159(1)
5 Conclusion on the Right to Life
160(8)
6 References
168(1)
6 Conclusion
169(19)
1 The Application of the ECHR to Border Deaths
169(1)
2 The Relevant Standards under Article 2 ECHR
170(1)
3 Do EU Immigration Policies Violate Article 2 ECHR?
171(7)
3.1 The Duty to Prevent the Loss of Life
171(3)
3.2 The Duty to Protect the Right to Life by Law
174(1)
3.3 The Duty to Respond Adequately to the Loss of Life
175(3)
3.4 Conclusion: Many Border Deaths are in Violation of Article 2 ECHR
178(1)
4 Concluding Remarks
178(8)
5 References
186(2)
Index 188
Lisa-Marie Komp is Lecturer at the VU Amsterdam and Attorney at Law (international law and human rights) at Prakken d'Oliveira Human Rights Lawyers, The Netherlands.