The Right to Life Under the EU Charter and Cooperation with Third States to Combat Human Smuggling
21(3) German Law Journal (2020) 436-458 (CUP open access)
Posted: 28 May 2020
Date Written: April 30, 2020
Abstract
According to EU policy documents, “[s]aving lives of people in distress is a primary goal of EU action in relation to managing the EU external borders.” The EU preferred strategy to achieve this objective is to take measures against human smuggling — including the establishment of cooperation with third countries — ostensibly so that migrants are contained and their irregular movement is prevented. This Article examines whether this strategy complies with the positive obligations corresponding to the right to life as enshrined in Article 2 of the EU Charter of Fundamental Rights. After considering any formal obstacles that might prevent the activation of the Charter, this Article clarifies the factors that determine the scope of these positive obligations. Procedural and substantive obligations are then distinguished. The procedural positive obligation demands that the EU and its Member States (MS) consider alternatives to the measures of containment. Due to difficulties in assessing the reasonableness of such alternatives, the EU and the MS are also under the positive obligation to initiate studies that can provide reliable evidence that alternative measures — such as the possibility of issuing humanitarian visas — would be too burdensome. As to the substantive positive obligation corresponding to the right to life, this Article will argue that the EU and the MS need to be attentive about the cumulative outcome of their migration policies. The more successful they are in their indiscriminate containment policies — and the more unlikely any protection possibilities in the region of containment — the more likely it is that the positive obligation to protect life will remain unfulfilled.
Keywords: Human smuggling; the right to life; EU Charter; positive human rights obligations
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