HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

externalization as an umbrella concept in migration law to refer to the removal of the legal possibility for migrating individuals to cross borders. 10 David Cantor, a professor at the University of London and the founder and Director of the Refugee Law Initiative (RLI), adopts an even broader understanding of externalization. He defines the term as “ [T]he process of shifting functions that are normally undertaken by a State within its own territory so that they take place, in part or in whole, outside its territory ”. In the context of border controls, he directly associates externalization with the risk of pushbacks, aiming to prevent migrants from even approaching states’ borders. 11 The imposition of state responsibility for misconduct during externalized border control is problematic, whether due to complex jurisdictional rules or the fact that states may not be bound by the same human rights treaties. 12 James C. Hathaway, the Professor of Law Emeritus at the University of Michigan, describes the non-entrée policies as “ The most sophisticated means of denying protection […] to avoid the arrival of refugees altogether […] ”. 13 As he states in the passing “ [T]he goal of these mechanisms is to implement legal norms which have the effect of preventing refugees from even reaching the point of being able to present their case for protection to asylum state authorities ”. 14 He distinguishes three mechanisms of the non-entrée policies – a visa requirement on nationals of refugee-producing countries 15 , shared responsibility for refugee protection (including principles such as the first country of arrival or the safe third country ) 16 , and the principle of the safe country of origin . 17 According to him, the particularly insidious mechanism of the non-entrée policy involves the formal excision of a part of state territory, effectively creating a no-man’s land beyond the jurisdiction of the state. 18 10 Ibidem 11 CANTOR, David; TAN, Nicolas Feith; GKLIATI, Mariana; MAVROPOULOU, Elizabeth; ALLISON, Kathryn et al. Externalisation, Access to Territorial Asylum, and International Law. In: International Journal of Refugee Law [online]. Vol. 34, No. 1, pp. 120–156, Chapter 4: Externalized border controls [cit. 2024-08-15]. Available at: https://academic.oup.com/ijrl/article/34/1/120/6619241?. 12 CANTOR, David; TAN, Nicolas Feith; GKLIATI, Mariana; MAVROPOULOU, Elizabeth; ALLISON, Kathryn et al. Externalisation, Access to Territorial Asylum, and International Law. In: International Journal of Refugee Law [online]. Vol. 34, No. 1, pp. 120–156, Chapter 6.2 : Challenges to accountability in the externalisation context [cit. 2024-08-15]. Available at: https://academic.oup.com/ ijrl/article/34/1/120/6619241?.. 13 HATHAWAY, James C. The Rights of Refugees under International Law , 2nd edition. In: Cambridge University Press [online]. ISBN 9781108863537, p. 329 [cit. 2025-02-23]. Available at: https://doi. org/https://doi-org.ezproxy.is.cuni.cz/10.1017/9781108863537. 14 Ibidem

15 Ibidem, p. 329. 16 Ibidem, p. 330. 17 Ibidem, p. 334. 18 Ibidem, p. 336.

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