The Right to Leave any Country and the Interplay between Jurisdiction and Proportionality in Human Rights Law

Forskningsoutput: TidskriftsbidragArtikel i vetenskaplig tidskrift

Standard

The Right to Leave any Country and the Interplay between Jurisdiction and Proportionality in Human Rights Law. / Stoyanova, Vladislava.

I: International Journal of Refugee Law, Vol. 32, Nr. 3, 2020, s. 403–439.

Forskningsoutput: TidskriftsbidragArtikel i vetenskaplig tidskrift

Harvard

APA

CBE

MLA

Vancouver

Author

RIS

TY - JOUR

T1 - The Right to Leave any Country and the Interplay between Jurisdiction and Proportionality in Human Rights Law

AU - Stoyanova, Vladislava

PY - 2020

Y1 - 2020

N2 - This article shows the importance in human rights law of the right to leave any country, particularly in the light of increasing efforts by European countries of destination to prevent departures, and to contain movement by enrolling countries of origin and transit to act as gatekeepers. The article highlights the autonomous nature of the right and clarifies the challenges in triggering its application. The opposability of the right to countries of destination is explored, which requires clarifying the difficulties in meeting the jurisdictional threshold in human rights law, and the complications in operationalizing the proportionality test under this qualified right. The article explains the interplay between these difficulties. It argues that the jurisdictional threshold expresses a political and legal relationship between the duty-bearer (the state) and the right-holders (the individuals). This relationship enables the operationalization of the substantive analysis as to whether measures limiting rights are in accordance with the law and are proportionate.

AB - This article shows the importance in human rights law of the right to leave any country, particularly in the light of increasing efforts by European countries of destination to prevent departures, and to contain movement by enrolling countries of origin and transit to act as gatekeepers. The article highlights the autonomous nature of the right and clarifies the challenges in triggering its application. The opposability of the right to countries of destination is explored, which requires clarifying the difficulties in meeting the jurisdictional threshold in human rights law, and the complications in operationalizing the proportionality test under this qualified right. The article explains the interplay between these difficulties. It argues that the jurisdictional threshold expresses a political and legal relationship between the duty-bearer (the state) and the right-holders (the individuals). This relationship enables the operationalization of the substantive analysis as to whether measures limiting rights are in accordance with the law and are proportionate.

KW - Human rights

KW - The right to leave

KW - Jurisdiction

KW - Proportionality

KW - Refugees

KW - Mänskliga rättigheter

U2 - 10.1093/ijrl/eeaa030

DO - 10.1093/ijrl/eeaa030

M3 - Article

VL - 32

SP - 403

EP - 439

JO - International Journal of Refugee Law

JF - International Journal of Refugee Law

SN - 0953-8186

IS - 3

ER -