Intersectionality, Forced Migration, and the Jus-generation of the Right to Flee: Theorising the Composite Entitlement to Leave to Escape Irreversible Harm
in Çalı, Bianku and Motoc (eds), Migration and the European Convention on Human Rights, Oxford: Oxford University Press, Forthcoming
39 Pages Posted: 8 Sep 2020
Date Written: March 26, 2020
This chapter critiques the piecemeal approach of the Strasbourg Court to the question of access to asylum, showing how inter-sectionality theory can facilitate a principled shift towards an analysis that captures the complexity of refugees’ position and recovers the indivisibility of human rights. The theory calls for the multi-dimensional appreciation of human experience in a way that encompasses the whole breadth of lived realities. A similar approach is advocated herein to the construal of the law so that inter-sectional thinking guides not only the appraisal of factual constellations, but also the interpretation of the applicable norms. The main proposition is that, to fully apprehend the rights and realities of asylum seekers, an inter-sectional approach is key in addressing the totality of their plight. Only a whole-of-person approach matched by a whole-of-legal-system interpretation is capable of realizing substantive justice in practice. This requires a holistic understanding that penetrates the full depth of their individual situations, as traversed by the plethora of legal provisions that accumulate and interact at the same time, overcoming the limitations of current constructions of their rights as disconnected from each other and from the circumstances to which they apply. The end result is a focus on the jus-generative effects of the intersection between the right to leave and the right to protection against ill-treatment, giving rise to the composite ‘right to leave to escape ill-treatment’ or ‘right to flee’, based on the interactive combination of existing entitlements (without the need for new law). The purchase of this method is wider than this chapter will elaborate. It can be applied to the ECHR as a whole, promoting internal consistency and supporting its development as a constitutional instrument of European public order.
Keywords: ECHR, Intersectionality, Access to Asylum, Right to Leave, Non-Refoulement, Right to Flee, Whole-of-Person Approach, Whole-of-Legal-System Interpretation, Comprehensive Dignity, Equal Liberty, Comparative Constitutionalism, Article 3
JEL Classification: K33, K37
Suggested Citation: Suggested Citation