Challenging Externalisation Through the Lens of the Human Right to Leave

• Published in: Netherlands international law review 2024-05, Vol.71 (1), p.119-154
• Main Author: McDonnell, Emilie
• Format: Article
• Language: English
• Subjects: Accountability; Boundaries; Comparative Law; Contours; Human rights; International & Foreign Law; International law; Jurisprudence; Law; Law and Criminolgy; Litigation; Migrants; Migration; Political asylum; Private International Law; Public International Law; Refugees; Sanctions
• ISSN: 0165-070X; 1741-6191
• DOI: 10.1007/s40802-024-00252-w

Around the world, externalised migration controls continue to proliferate, leading to host of human rights harms for migrants. Migrants (and citizens) are being contained in states of origin and transit and denied their fundamental right to leave. However, externalisation is typically understood as preventing migrants entering state territory and accessing asylum, which has shaped litigation efforts and the rights and obligations that are invoked. Accordingly, this article seeks to demonstrate that the right to leave any country remains a largely overlooked avenue for challenging harmful externalisation practices and to highlight the important role it can play in remedying accountability gaps. It provides a broad overview of the right to leave in international law and its main contours as a starting point for considering the applicability of the right to externalisation measures. It examines the key jurisprudence concerning externalisation and the cases invoking the right to leave, including with respect to pushbacks, offshore processing, safe country arrangements, visa regimes, carrier sanctions and pullbacks, illustrating missed opportunities and positive developments. The article calls for a change in approach that recognises the great potential of the right to leave in tackling externalisation and containment, suggesting future opportunities for the right to be litigated and developed across different fora.