A Legal Blackhole at the EU External Borders: Deconstructing the ‘Own Culpable Conduct’ Requirement in the ECtHR Migration related Jurisprudence
This seminar will be based on a draft paper authored by Alexandra Geraki-Trimi (ECCHR) and Eleni Karageorgiou (Lund University). The paper can be shared upon request two weeks in advance.
The article offers a critical analysis of the ‘own culpable conduct’ exception to the prohibition of collective expulsions, as introduced by the ECtHR. First, it explores the legal premises on which the Court relied to construe the exception, as well as the key factors that determined the Court’s balancing exercise between state interests and migrant rights. This enables a discussion on the assumptions and structural bias underpinning the Court’s reasoning in migration-related cases, as well as on alternative lines of reasoning that were left slide. Second, the article theorizes the ‘own culpable conduct’ exception as a “legal black hole” following Itamar Mann’s relevant typology. Unpacking the characteristics of the emerging legal black hole, the article concludes that it is constructive to look at legal black holes, not as fixed and distinct constructions but, rather, as forming a spectrum determined, essentially, by how international law develops over time.
Alexandra Geraki-Trimi is a human rights lawyer, currently working for the Border Justice legal team of the European Centre for Constitutional and Human Rights (ECCHR). Alexandra holds an LL.M. in International Human Rights Law from Lund University and the Raoul Wallenberg Institute of Human Rights and Humanitarian Law. Her latest research contribution has been to S Carrera et al, l, ‘Substitute impact assessment: Proposal for a regulation addressing situations of instrumentalisation in the field of migration and asylum’ requested by the European Parliament, PE 753.156 – October 2023.
Dr Eleni Karageorgiou is a senior researcher in Public International Law at Lund University. She has written extensively on human rights law, refugee law, and European asylum policies. Her latest publications include: ‘Safe Third Country’ in V Chetail (Eds.), Elgar Encyclopedia of Migration Law (Edward Elgar 2023 forthcoming); ‘Solidarity and the Crisis of Values in the European Union’ (2023) Nordic Journal of European Law 6(2) 29-49 with X Groussot, and ‘Receiving Ukrainian Refugees in the EU: A Case of Solidarity?’ in S Carrera and M Ineli-Ciger (Eds.), EU responses to the large-scale refugee displacement from Ukraine: an analysis on the temporary protection directive and its implications for the future EU asylum policy (European University Institute 2023) with G Noll.
Send an e-mail to eleni [dot] karageorgiou [at] jur [dot] lu [dot] se (eleni[dot]karageorgiou[at]jur[dot]lu[dot]se) and vladislava [dot] stoyanova [at] jur [dot] lu [dot] se (vladislava[dot]stoyanova[at]jur[dot]lu[dot]se) in case of any questions.
This seminar is part of the project The Borders Within. The Multifaceted Legal Landscape of Migrant Integration in Europe, funded by the Knut and Alice Wallenberg Foundation and the Swedish Academy of Science.