This is from externalization from Brazil to Cayenne "asylum seekers subjects" Just ver determined By French Guienne Asylum Autority - YELLOW NOTTICE

JOURNAL ARTICLE Externalisation, Access to Territorial Asylum, and International Law David Cantor, Nikolas Feith Tan, Mariana Gkliati, Elizabeth Mavropoulou, Kathryn Allinson, Sreetapa Chakrabarty, Maja Grundler, Lynn Hillary, Emilie McDonnell, Riona Moodley ... Author Notes International Journal of Refugee Law, Volume 34, Issue 1, March 2022, Pages 120–156, https://doi.org/10.1093/ijrl/eeac023 Published: 28 June 2022 Issue Section: Documents 1. Introduction ‘Externalisation’ – the process of shifting functions normally undertaken by a State within its own territory so they take place, in part or in whole, outside its territory – has an important impact on the asylum field. Particularly (but not exclusively) in the Global North, the body of laws, policies and practices that externalise aspects of the migration and asylum functions of States appears to be expanding. This trend has not gone unnoticed or unchallenged by international organisations (IOs), non-governmental organisations (NGOs), news media and academia concerned about the serious negative consequences of this trend for refugees and asylum seekers. Certainly, the process of externalisation, at least as it impinges on access to territorial asylum, raises a host of complex legal, moral and policy concerns. The Refugee Law Initiative (RLI) Declaration on Externalisation and Asylum, adopted at its 6th Annual Conference on 29 June 2022, sets out key international law considerations on externalisation that reflect the view of a range of independent experts and scholars at the RLI. This paper provides a primarily legal analysis for the positions outlined therein.2 It thus acknowledges but does not engage in depth with the political narrative on externalisation that runs in parallel. The paper draws on collaborative work by the many RLI staff and RLI Research Affiliates who researched and authored this paper over the preceding nine months.3 The invaluable input on drafts of the Declaration and of this paper by RLI Senior Research Associates is also gratefully acknowledged.4 The paper starts by offering a distinctive conceptualisation of ‘externalisation’ as a process that can impinge on access to asylum in the territory of States (section 2). It then seeks to identify the overarching international law principles that govern the kinds of conduct that externalisation in this field tends to involve (section 3). An analysis of the international law parameters of externalisation is then presented, firstly for externalised border controls – with extraterritorial pushbacks of refugees and others taken here as a prime example (section 4), and secondly for externalised asylum systems – focusing on third country processing of asylum claims, as the greatest source of concern in this regard (section 5). We end by exploring issues of accountability that arise in both contexts (section 6). 2. CONCEPTUALISING EXTERNALISATION Externalised migration control practices have a long history. The US, for example, first introduced visa requirements in 1924.5 Carrier sanctions have even longer use, stretching back at least as far as the 19th century in relation to passport controls.6 However, it was in the 1980s that States in North America, Europe and elsewhere began adopting increasingly far-reaching measures to stem irregular movement by refugees and others towards their shores through the imposition of visa regimes and carrier sanctions and via interceptions on the high seas or in the territory of third States.7 In 1999, a regional dimension appeared, as the Tampere conference called for cooperation with ‘external’ countries outside the European Union (EU) in implementing the Common European Asylum System.8 These dynamics have also generated increasing interest on the part of researchers in understanding the implications for refugees and asylum seekers of such externalised forms of migration control, and the parallel efforts by some States to externalise asylum responsibilities through third country processing arrangements of the kind implemented by the US and Australia.9 However, ‘externalisation’ is not a legal term of art in the asylum field. Indeed, its basic meaning is contested by scholars and policy actors, who have defined the term in differing ways.10 Moreover, measures closely related to, or overlapping with, the externalisation of asylum and/or migration controls have also been characterised in the literature under a range of alternative labels, including ‘remote control’, ‘non-entrée’, ‘deterrence’, ‘off-shoring’, ‘extra-territorialisation’ and ‘protection elsewhere’. Against this potentially confusing backdrop, it is important to clarify how we conceptualise ‘externalisation’ in this analysis. Like most other studies in the refugee field, we see externalisation as an ‘umbrella’ concept.11 However, in contrast to most studies, we do not see the concept as defined solely by reference to asylum or migration concerns. Rather, more generally, it refers to the process of shifting functions that are normally undertaken by a State within its own territory so that they take place, in part or in whole, outside its territory. This broader focus is justified, since State functions across a range of different areas of governance beyond just asylum or migration can clearly be externalised.12 It emphasises that externalisation in the asylum space does not exist in isolation from broader trends in governance, but rather forms part of them. This approach is useful for another reason. The comparatively narrower existing attempts to define externalisation in our field have struggled to reconcile apparently externalised measures that restrict access to the territory for migrants in general, including asylum seekers, with those that offshore the processing of asylum claims specifically.13 We believe that this is because those elements actually speak to interconnected but conceptually and often practically distinct State functions, respectively the operating of border controls on the one hand and the administration of a national asylum system on the other. Clearly, each of these distinct (and intensely-politicised) functions has seen an increasing emphasis on externalisation in a range of countries in recent years. As we are concerned here precisely with those State functions that impinge on access to asylum in the territory of a State, our analysis focuses on how externalisation processes play out in relation to these two specific State functions. Of course, other State functions may also impinge on access to territorial asylum, and may also be increasingly externalised in practice. Nonetheless, by focusing on the two State functions that seem to us to be among the most relevant to regulating access to territorial asylum, we aim to identify the legal parameters that are most pertinent in the context of the challenge to asylum posed by current externalisation proposals and practices. Alongside the attempt to shift certain State functions outside its own territory, externalisation often involves attempts to shift responsibility for the externalised measures to other entities. Thus, whilst externalised State functions that impinge on access to territorial asylum may be implemented by a State unilaterally, they can also be implemented jointly with other States and/or entities (including IOs and private actors) to which the State may have partially or wholly outsourced those functions.14 This attempt to shift or share responsibility is a frequent practical corollary of States shifting border control or asylum functions outside their territory but, unlike some scholars,15 we do not see it as a necessary feature of externalisation.16 Certainly, though, it introduces an additional level of legal and practical complexity to many externalisation practices. 3. APPLICABILITY OF INTERNATIONAL LAW TO EXTERNALISATION PROCESSES Externalisation presents challenges to establishing the applicable legal rules. This is because many of the pertinent policies and practices exploit, deliberately or otherwise, ‘grey areas’ in which the international law rules governing refugee protection can appear to be silent. This is largely due to the extraterritorial component of externalisation (3.1) but can also reflect the tendency of States to delegate or share authority, with not only other States but other entities too (3.2). Thus, a key task for the international lawyer is to accurately identify the pertinent legal rules and their interaction with one another in the factual context of externalisation. 3.1 Primary rules: extraterritorial applicability Externalisation raises questions about whether relevant specialised regimes of primary rules of international law, such as refugee law and human rights law, remain applicable to practices undertaken outside the State’s own territory. This is because, even if externalisation laws and policies are adopted on the territory of a State, their impact is usually felt beyond its borders, by virtue of the subject matter. It is therefore necessary to evaluate the legal application of different bodies of primary rules of international law to the context of externalisation. General international law prohibits States from interfering in matters essentially within the domestic jurisdiction of other States or acting in any manner inconsistent with the United Nations (UN) Charter or with rules of international custom governing the relations between States.17 The implications of sovereignty for other States thus form an initial check on the legality of measures taken by one State that may have effects in the territory of another. These rules are complemented by those from specialised regimes of international law that are concerned directly with the protection of the human person. International refugee law establishes key obligations towards refugees. The applicability of the Refugee Convention is not limited by a ‘jurisdiction’ clause, meaning that States parties remain bound to observe the treaty when engaged in conduct outside their own territory.18 However, the range of Convention guarantees applicable to any putative refugee will vary depending on the degree of attachment of the refugee to the State party exercising jurisdiction over them.19 Moreover, persons who have not yet left their own country are not protected by the treaty as they are not yet considered to be ‘refugees’ under its terms.20 The prohibition on refouling refugees in Article 33(1) of the Convention may well also be a customary norm.21 A good faith duty of cooperation and responsibility-sharing is implicit in international refugee law and expressed by instruments such as the Global Compact on Refugees.22 The international law of armed conflict applies to any State party to an armed conflict that meets the definitional legal criteria.23 In non-international armed conflicts, non-State parties to the conflict are also bound directly by the applicable rules.24 Many of the rules expressed in the 1949 Geneva Conventions and their Additional Protocols now appear to be also customary in nature.25 The general rules on the protection of civilians will apply where States involved in externalisation measures are a party to the conflict.26 The special guarantees for civilians in the hands of a party to an international armed conflict (i.e. as persons in territory under occupation or as aliens in the power of a State party to a conflict) will be particularly relevant.27 The rules of this specialised regime may shape the content of complementary human rights norms where the two bodies of law overlap in application.28 The law of the sea as codified in the United Nations Convention on the Law of the Sea (UNCLOS) applies to all externalisation practices undertaken within the various maritime zones establishing States’ jurisdictional competencies, i.e. the internal waters, territorial waters, the contiguous zone, the exclusive economic zone and the high seas.29 UNCLOS and other maritime treaties prescribe certain duties for States that are applicable to externalisation measures, such as the duty to rescue people in distress at sea and to disembark them at a place of safety (which is also widely accepted as customary)30 and the duty of coastal States to maintain effective search and rescue services within their SAR designated zones.31 International human rights law, by contrast, applies to all human beings regardless of their situation.32 A multitude of UN and regional human rights treaties provide for human rights standards and/or prohibit discrimination on the basis of protected characteristics. However, the application of these obligations ratione loci is often conditioned on the State party exercising power through ‘jurisdiction’.33 ‘Jurisdiction’ in this sense is normally presumed to exist throughout a State’s own territory, and may persist even in parts of that territory not under its effective control.34 Yet international courts and treaty bodies have consistently determined that such jurisdiction can also occur in some situations where a State acts beyond its own borders.35 The following broad trends in the jurisprudence of these bodies on extraterritorial ‘jurisdiction’ affirm the continuance of human rights duties in many externalisation contexts. Firstly, there is a strong consensus among treaty bodies that extraterritorial jurisdiction for the purposes of human rights law persists wherever a State acting outside its borders exercises ‘effective control’ over a territory or ‘authority and control’ over a person.36 The former is analogous to a State’s jurisdiction over its own territory and requires the State to secure ‘the entire range of substantive rights’ in the treaty.37 Some UN treaty body practice suggests that jurisdiction on the basis of control over a person may equally extend the full gamut of treaty rights,38 a position that is similar in some regional bodies,39 although the European Court of Human Rights (ECtHR) has held that only those specific rights ‘relevant to the situation of that individual’ apply (i.e. the treaty rights can be ‘divided and tailored’ by situation).40 Secondly, UN human rights treaty bodies increasingly find common ground also in a ‘direct and foreseeable effects’ test for extraterritorial jurisdiction.41 This so-called ‘functional’ approach does not require any control over the person or territory. Rather, if a State party has knowledge at the time it acts that the risk of an extraterritorial violation of protected rights is a ‘foreseeable consequence’ of its actions, merely being ‘a link in a causal chain that makes possible’ the violation of rights is sufficient for jurisdiction to exist.42 A similar approach can be discerned among regional treaty bodies. Thus, the IACtHR affirms that jurisdiction can exist where there is a ‘causal link’ between an act over which the State exercises ‘effective control’ and the negative impact on ACHR rights of persons outside its territory’.43 The AfComHR has held that jurisdiction can arise as a result of conduct that ‘could reasonably be foreseen to result in’ the violation of ACHPR rights.44 Likewise, certain strands of ECtHR case-law suggest that the ECHR applies to executive or judicial measures directed at persons abroad.45 " This particle texto ser a extractos from internet website publicated: https://academic.oup.com/ijrl/article/34/1/120/6619241 This other shows content textual about borders externalization: https://pt.m.wikipedia.org/wiki/Externaliza%C3%A7%C3%A3o_de_fronteiras BoTH: https://www.academia.edu/91050181/O_processo_de_externaliza%C3%A7%C3%A3o_de_fronteiras_europeias_e_o_acordo_de_devolu%C3%A7%C3%A3o_com_a_Turquia?uc-sb-sw=97827404 Sob forma suplementar pareceu relevante fazer constar o seguinte: Seção III Do Salvo-Conduto Art. 16. O salvo-conduto é o documento de viagem, de propriedade da União, expedido pelo Ministério da Justiça, destinado a permitir a saída do território nacional de todo aquele que obtenha asilo diplomático concedido por governo estrangeiro. Art. 25. As condições para a concessão do salvo-conduto serão estabelecidas pelo Ministério da Justiça. ANEXO (Redação dada pelo Decreto nº 5.978, de 2006) (Vide Decreto nº 8.374, de 2014) REGULAMENTO DE DOCUMENTOS DE VIAGEM CAPÍTULO I DOS DOCUMENTOS DE VIAGEM Art. 1o Para efeito deste Regulamento, consideram-se documentos de viagem: I - ... suprimido... II - laissez-passer; III - autorização de retorno ao Brasil; IV - salvo-conduto; Trecho supracitado extraído de publicado DOU de 15.8.1996 Releva a legislação suplementar Brazil - France a ter sob consideração; https://acnudh.org/pt-br/estatuto-de-roma-del-tribunal-penal-internacional/ Sobre o disposto acima é recomendado no trajeto de viagem: "portar ao mínimo uma certidão na qual resulte negativo da pesquisa de arquivos e bancos de dados policiais acerca de antecedentes criminais e se houve cumprimento de Pena em estabelecimento Penitenciário e de tribunais que abrangem a área onde Residiu o viajante últimos 60 meses" razão da recomendação "a vigilância da F.A.B. nas fronteiras pode acabar na limitroficidade interpretando "migrantes, refugiandos e buscadores de asilo" em direção à Cayenne ou outro Estado estrangeiros "ORANGE NOTTICE OR PURPLE NOTTICE" por agirem nas fronteiras Brasileiras indiretos que "Patrocínio e clientelismo e lenocínio e suspeitos de promover trabalho escravo ou sequestro abdução e tráfico humano e de pessoas internacional, em geral foragidos da Justiça Brasileira conhecida" E isto é tudo o que há para fazer constar no documento disposto em registro no setor Ouvidoria destinatário Plenário. Subscreve.