This chapter investigates how the challenging questions and tensions caused by migrants and their universalist claims for inclusion, have been approached and resolved in liberal democracies. By regarding the development of populism as a real and dangerous political phenomenon that has significant traction, the chapter asks whether populism adds something new to this approach and resolution. More specifically, does populism add some distinctiveness that we should be more sensitive to? With reference to the requirement that the state has to provide justifications for measures that affect individuals, the chapter asks how the tensions between exclusion versus inclusion and particularism versus cosmopolitanism, have been adjusted. It concludes that the adjustment has been in favour of exclusion and particularism. The concern that arises is that populism might further shape this adjustment to the point where the balance is completely tipped in favour of exclusion and statism. This raises general concerns about the nature of the community and its organizing liberal values.

This chapter aims to offer insights into the wider implications for the rule of law, including for the EU constitutional order, of the restrictions of migrants’ and asylum-seeker’ rights that follow from systematic noncompliance with the Common European Asylum System (CEAS) by certain Member States. It asks: Has the migration and asylum crisis developed into an EU constitutional crisis? There is a growing body of literature about the constitutional crisis of the EU. A rich debate also exists as to the failures of the CEAS. The chapter brings these two into conversation to demonstrate that migration governance plays a constitutive role for the EU. If the EU fails to treat the migration crisis as an EU constitutional crisis, it might risk disintegration and return to the national. This would take the evolution of the European project further away from its telos.

The Introduction contextualizes the volume’s objectives, introduces its research questions and defines basic terms. A starting point is the finding in the literature that migration is ’merely’ one of several contributing factors to democratic decay, in the sense that (authoritarian) populists have seized on the ‘migration crisis’ to further undermine constitutional democracy. Yet, in our estimation the relationship between the three forces that reside at the core of this volume – populism, democratic decay and migration – is more multifaceted and complex. After engaging with this relationship, the Introduction examines avenues for legal resilience against (authoritarian) populism. By drawing inspiration from the scholarship on environmental law, a definition of legal resilience is proposed, on the basis of which a two-stage analysis is developed to evaluate the possibilities and limitations of legal resilience against (overly) restrictive migration laws and policy. In a first stage, it should be determined how resilient the legal system itself has been in the face of populist onslaught. In the second stage, once we know how resilient the legal system as a whole has proven to be, we can identify the extent to which it provides for legal resilience against restrictive migration laws and policies.

ABSTRACT

The right to leave a country is enshrined in both international human rights law and its European counterpart. It is a right which is independent and does not require the individual exercising it to show that he or she is admissible in some other country. It is exercisable even in the absence of evidence of possible admission to a destination country. However, in Europe (and some other parts of the world) some states are seeking to encourage their neighbours to interfere with people‘s right to leave a country on the grounds that these European states fear that people want to come to their borders. This article examines the right to leave a state from the perspective of international and European human rights law and questions the legality of various efforts to make it dependent on a right of entry to another country.

INTRODUCTION

Human rights law instruments enshrine the right to leave any country, including one‘s own. Article 13(2) of the Universal Declaration of Human Rights contains the first expression of the right. Article 12(2) of the International Covenant on Civil and Political Rights (ICCPR) is the global legally binding instrument enshrining the right to leave. At European level, Article 2(2) of Protocol 4 to the European Convention on Human Rights (ECHR) also expresses this right. The right to leave any country has not gained much attention; neither has it been an object of frequent invocations. However, in light of the current situation where in practice many people are contained in countries of origin and transit, the importance of this right needs to be explained and the challenges to its application clarified.

Historically, the right to leave was included in the catalogue of rights for the purpose of targeting and critiquing the countries on the east side of the Berlin Wall and their restrictions on external mobility. In this context, the right to leave was considered a key indicator of the democratic foundations of states. Reflective of this historical background, the Human Rights Committee General Comment No. 27 on Freedom of Movement, issued ten years after the fall of the Berlin Wall, is framed predominantly from the perspective of countries of departure.