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Human rights are like elephants: magnificent, but under threat

What is the current situation of human rights in relation to detention under criminal law and immigration law, now that more and more parties are becoming involved in the administration of detention and crimmigration is on the rise? PhD defence on 21 January 2020.

'The current protection of human rights in situations of detention under criminal law and immigration law is under pressure’, according to PhD candidate Patrick van Berlo. 'On the one hand a process of commodification is underway, where not only  sovereign States but also private, public, national and international parties are involved in the administration network for prisons and immigration detention centres. On the other hand, as a result of emerging crimmigration, detention environments are increasingly being used to secure objectives related to new concepts of who belongs in our society. 

These developments put the legal relationships on which human rights legislation is based under pressure. In his dissertation, Van Berlo studies to what extent human rights as a framework for protection retains its relevance in current globalisation trends, characterised by commodification and crimmigration. In doing so, he compares human rights to elephants: though magnificent beings, they are both under threat. This metaphor is a recurrent theme throughout the book.

Challenges

The dissertation consists of three parts. The first part describes developments related to commodification and crimmigration and explains how these trends pose a challenge to human rights legislation. In the next part, an analysis is provided of the extent to which human rights legislation has or has not dealt with these challenges in its legal framework. By showing that while legislation must remain true to its doctrinal foundations, at the same time it must display resilience towards developments arising from globalisation. This reveals a clear area of tension. The subsequent legal impasse is studied from a socio-scientific perspective in the third part of the dissertation, going beyond the limits of the legal field and explaining the protective value of human rights using a more holistic approach.

Besides the macro-level analysis, each part of the dissertation also contains an analysis of two case studies: the Australian immigration detention centre RPC Nauru, where the PhD candidate conducted research in Australia, and the Norwegian-Dutch prison PI Norgerhaven. Zooming in on these cases illustrates the central issues arising in this dissertation. The resulting analyses are based on a study of case law, literature and documents, and qualitative interviews held with almost fifty respondents.

While writing his dissertation, Patrick van Berlo twice won a Meijers Prize for parts of his research: in 2017 for the article The Protection of Asylum Seekers in Australian-Pacific Offshore Processing: The Legal Deficit of Human Rights in a Nodal Reality and in 2018 for the article Mensenrechten en de uitbesteding van vrijheidsbeneming. Van blinde vlek tot vergezicht.

Interdisciplinary collaboration

One key conclusion of the research is that although the potential for human rights legislation to offer protection is perhaps restricted as a consequence of developments in globalisation, a solution for this must not only be sought in the form of more or less legislation. Instead, protection of human rights should be viewed more as a holistic concept, emphasizing that human rights can be implemented and enforced in various ways.

Van Berlo adds substance to this notion by proposing a multidimensional analytical framework within which human rights as a right, morality, protest and language can be combined. The dissertation is thus a call for interdisciplinary collaboration, where the point of departure is formed by the notion that the protection of human rights depends on a sincere and broadly supported conviction that human rights matter.

Fieldwork in Australia

Patrick van Berlo is the third PhD candidate to have been supervised by the duo Professor Van der Leun (Criminology) and Professor Van der Woude (Van Vollenhoven Institute) with combined legal and empirical research concerning the notion of crimmigration. Van Berlo analyses crimmigration through a human rights lens and asks whether the interconnectedness of criminal law and immigration law is not actually something that is desirable when viewed from this perspective. Besides a thorough analysis of law, the dissertation is also based on a special analysis of empirical fieldwork conducted in Australia, where Van Berlo studied the situation on the island Nauru. This island is used as an offshore detention centre for immigrants on behalf of Australia. The dissertation thus contains unique data on the situation on Nauru and is thus also unique in shining light on current academic debate concerning crimmigration.

Text: Floris van den Driesche
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