National Security Expulsions beyond Non-refoulement

A Comparative Analysis in International Human Rights Law

In her talk, Dr Jasmine Sommerdal comparatively examines how the United Nations Human Rights Committee (HRC) and the main regional human rights bodies—the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR) and the African Court of Human and Peoples’ Rights (ACtHPR)—have addressed expulsions on national security grounds, beyond the more well-established issue of non-refoulement. She explores the extent of jurisprudential divergence and convergence in rights interpretation, shedding light on both the harmonisation and tensions that emerge from the polyphonic and decentralised nature of the human rights system. This gives a more nuanced understanding of the extent to which the human rights aspiration of providing protection to everyone fails in the field of migration, especially when it comes to national security, which traditionally has been seen as a state prerogative in international law. In her review, Jasmine shows that the HRC and the ECtHR display strong traits of deference to states, focus on procedural safeguards and limit their review to a restricted set of substantive rights. In contrast, the jurisprudence of the IACtHR and the ACPtHR is more progressive, recognising a wider scope of rights obligations, including non-discrimination, while providing robust or extensive procedural obligations. The ACtHPR has also imposed the burden of proof on the state to justify a national security threat, and directly interrogated the existence of national security aims. The talk thus compares the HRC’s and the ECtHR’s jurisprudence with the more expansive rights interpretation of the IACtHR and the ACtHPR.

Jasmine’s talk will be followed by a discussion with all participants, opened up by Vera Wriedt.

Jasmine Sommardal is a postdoctoral Barbara Huber Scholarship Holder at the Max Planck Institute for the Study of Crime, Security and Law. She did her PhD at the European University Institute, with her dissertation entitled ‘National Security and the European Court of Human Rights: Mediating Challenges through Interdependent Interpretation’. Jasmine is an associate editor of the ECHR Blog, a former visiting researcher at the Hertie School in Berlin, and has held editorial positions with the European Journal of International Law and the European Journal of Legal Studies. She has also worked in the Legal Service of the Finnish Ministry for Foreign Affairs and served as a legal assistant to Judge Spano at the ECtHR.

Vera Wriedt is a PhD researcher at the Hertie School’s Centre for Fundamental Rights and Ghent University’s Faculty of Law and Criminology, with a dissertation entitled ‘Bordering Belonging: Colonialism, Nationality and Expulsions in the European and African Human Rights Systems’. Complementary research stays also brought her to the African Centre for Migration and Society at the University of the Witwatersrand and to the Max Planck Institute for Comparative Public Law and International Law. Vera’s research has been supported by the German Academic Scholarship Foundation, Birkbeck’s School of Law, the Hertie School, the Heinrich Böll Foundation and Ghent University, among others. She taught seminars on postcolonial and feminist approaches to human rights and migration at Freie Universität Berlin and the University of Münster.