EUによる「押し返し（pushback）」政策の動態

―EU立憲主義の可能性と限界―

抄録

　How can "pushbacks" be challenged and regulated? This article analyzes the European Union's （EU） external immigration policy from the perspective of constitutionalism. It establishes a conceptual framework to understand the dynamics of the EU's external immigration policy, shedding lights on the role of the actors outside the EU. By doing so, it aims to critically examine EU constitutionalism, which fails to protect human rights of the people on the move.

　"Pushbacks" are a set of measures to refuse the entry of people on the move into EU member states' territory without individual assessments, or to abandon them at sea. As a result of the "pushbacks," the human rights of the people on the move―including the substantive rights （e.g., the right to life） and the procedural rights （e.g., the right to a fair trial）―are violated, despite the existence of EU constitutionalism. Although the EU claims to restrict its power on the basis of certain values such as human rights and the rule of law, the EU and its member states infringe on these values in the context of the "pushbacks". Nevertheless, the literature on the EU's external immigration policy does not adequately explain how the "pushbacks" are regulated, particularly by outside-EU actors.

　Against this background, this study explores the concept of "constitutionalization from outside": the process by which diverse actors, who are not formal participants in the EU's decision-making, attempt to restrict the power of the EU and its member states, based on certain values （such as human rights）. Using this concept, this article examines ⑴ who criticizes the "pushbacks" in what way and ⑵ how the EU institutions and the member states have reflected such criticisms on the external immigration policy. It reaches three conclusions. First, the NGOs made accusations against the EU, and these accusations not only constitute the attempts to hold the EU legally accountable, but also relativize the EU's justificatory discourse. Second, such a development is the background for certain improvements, but some member states continue to exclude people on the move with the so-called "pullbacks". Third, consequently, EU constitutionalism does not successfully realize the value of human rights protection. Thus, this article contends that EU constitutionalism needs to be relativized and complemented by another constitutionalism―global constitutionalism.