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Table of Contents: I. Setting the scene. – II. Challenges of EU Member States’ extraterritorial border management measures in select scenarios. – III. Allocating international responsibility of EU Member States for their extra-territorial border management activities: Twilight zone. – III.1. First scenario: Activities carried out by EU Member States within third countries or for their benefit. – III.2. Second scenario: Activities of EU Member State officials carried out on board of third country vessels with the aim to prevent irregular entry to the EU. – III.3. Third scenario: EU Member States sharing information with neighbouring third countries. – IV. Assessment and outlook to the future.
Abstract: EU Member States are ever more involved in border management activities in cooperation with third countries. Such activities entail risks of violating various human rights of the people on the move, such as the right to leave any country, the principle of non-refoulement, and the prohibitions of ill-treatment and arbitrary detention. When Member States carry out various cooperative border control activities outside their sovereign territory, their responsibility is unclear. Under international law, responsibility may also arise when a State aids or assists another State to engage in conduct that violates international obligations (art. 16 of the Articles on the Responsibility of States for Internationally Wrongful Acts – ARSIWA). Member States’ responsibility can thus emerge via “derived responsibility” flowing from an internationally wrongful act committed by a third country. The Article seeks to discuss selected extraterritorial border management scenarios, which are in the “grey zone” in terms of State responsibility from the perspective of various human rights violations. More legal clarity is needed in such (and similar) concrete scenarios, especially when Member States “aid or assist” third countries in their efforts to manage migration flows. The Article submits that it is still debated whether related conduct entails State responsibility in such specific externalised border management situations, which involve activities carried out under the umbrella of international cooperation, but with the aim of preventing migrants from reaching the EU. Nevertheless, this piece argues that complicity of Member States under the ARSIWA can be established under certain circumstances as the presented scenarios demonstrate.
Keywords: externalisation – EU migration law and policy – human rights – Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) – aiding or assisting – positive obligations.
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European Papers, Vol. 8, 2023, No 2, pp. 1013-1035
ISSN 2499-8249 - doi: 10.15166/2499-8249/698
* Legal research officer, European Union Agency for Fundamental Rights (Vienna), tamas.molnar@fra.europa.eu.
