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University of New South Wales Law Journal Student Series |
TOWARDS A COMPREHENSIVE REGIME FOR MIGRANT PROTECTION AT SEA IN THE EUROPEAN CONTEXT
MARIA WYNONA LOUISE CHEN
Maritime migration in Europe poses pressing challenges, both in humanitarian and border control terms. A wide-spread refugee crisis has arisen as migrants flee conflicts and poverty in Syria, Iraq, Afghanistan, and Northern Africa.[1] The European Union (EU) has been a popular destination, but migrants who attempt to cross the Mediterranean to reach it face deadly risks. [2] 34,532 migrants have died in the Mediterranean region since 2014,[3] with yearly deaths peaking at 3,019 in 2016. [4] Yet the European response has been to consolidate the transition away from the early search-and-rescue approach to securitised border control,[5] and summary return to the high seas.[6]
However, these border control measures may be incompatible with EU Member States’ refugee protection obligations under the 1951 Convention Relating to the Status of Refugees.[7] Non-refoulement is the most fundamental,[8] being a non-derogable[9] prohibition on refouling, or returning, of a refugee ‘in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’.[10] Non-refoulement secures the refugee’s presence in the State party’s territory, making refugee status determination proceedings, and hence all other forms of Convention protection, possible.[11] International human rights law, which defines the inalienable rights of all people, regardless of their status, also imposes this obligation,[12] supporting the suggestion that non-refoulement may have attained customary status.[13]
Yet non-refoulement’s extraterritorial application in the maritime context raises interpretive and practical difficulties. The law of the sea[14] assigns competing rights and enforcement jurisdiction between States in different geographical zones.[15] The international search-and-rescue regime[16] imposes its own distribution of positive coast-watching and maritime rescue preparedness State obligations. European supranational law emphasising prioritising coercive control of the Schengen Area’s external borders sits uneasily with the Union’s stated normative commitment to free movement and respect for human rights.[17]
The ambiguities arising at these legal structures’ intersection undermines the completeness of the protection regime when refugees and migrants are on the move. While international refugee and human rights law strives to expand the reach of non-refoulement, there are still gaps that migrants may fall into, and, as the EU experience shows, that States may seek to exploit to attempt to justify the decision not to offer protection under pressure from strong domestic anti-immigration camps.[18]
This essay will proceed in four parts. Part 2 examines the evolution of EU responses to migratory flows in the Mediterranean from proactive search-and-rescue to militarised border control. The Member States’ increasingly schizophrenic responses call into question whether non-refoulement functions legally and practically as a comprehensive protective principle.[19]
Part 3 considers non-refoulement’s geographical completeness as a legal doctrine, where it interacts with the law of the sea. Hirsi Jamaa & Others v Italy,[20] wherein the European Court of Human Rights (‘ECtHR’) delinked non-refoulement obligations under Article 3 of the European Convention on Human Rights (‘ECHR’) from a territorial nexus,[21] confirms that a State’s exercise of jurisdiction, whether de jure or de facto and whether territorially or extraterritorially,[22] over asylum-seekers engages its non-refoulement and thus protection obligations. [23] International human rights law and general principles of state responsibility confirm this conclusion. While non-refoulement is mostly geographically complete, gaps remain because it is uncertain what level of control is necessary to establish jurisdiction, and what happens then when States decline to exercise jurisdiction.
Part 4 explores a situation where the ECtHR is attempting to close a significant gap – when migrant boats are in distress on the high seas. Ambiguity in the concept of ‘distress’ permits States to narrowly interpret when they are positively obliged to rescue migrants,[24] as to avoid high-seas rescues wherein they would exercise de facto control over the survivors. By drawing in positive obligations entailed by the right to life as informing the interpretation of international search and rescue obligations,[25] the ECtHR is showing that though regulatory regimes’ intersection at sea may undermine non-refoulement’s comprehensiveness, it may also provide the means to close the gaps so created.
Part 5 argues that though refugee law, the law of the sea, and human rights law are on the way to imposing a comprehensive obligation to accord maritime migrants non-refoulement, wherever they may be, the law alone is not enough to protect migrants in real life. The EU experience teaches important lessons about the practical and political barriers to comprehensive protection.
Irregular migration across the Mediterranean has prompted securitised responses as early as the late 2000s, with Italy and Malta interdicting and pushing back migrants boats from the high seas.[26] However, the number of illegal border crossings surged in 2011 following the Arab Spring and Libyan President Qaddafi’s overthrow.[27] Italy and Greece, which had already been hard-hit by the sovereign debt crisis,[28] found themselves responsible under the Dublin Regulation for processing most asylum applications as these migrants’ state of first entry into the EU.[29] Italy’s issuance of travel documents to a small group of Tunisians, under the assumption that they would move on to France, kicked off a series of chaotic and unilateral national responses to the mounting crisis.[30] France closed its borders to Italy, leading to a cascade of emergency defections from Schengen, unilateral suspensions of Dublin,[31] and the polarisation of pro- and anti-immigration camps at the domestic and supranational levels.[32]
Yet the 11 October 2013 tragedy off Lampedusa, wherein 269 boat migrants lost their lives, marked a brief turn in European migration policy.[33] The Italian government initiated Mare Nostrum, a search-and-rescue initiative that involved 34 warships and 900 sailors, in response and went on to save 150,000 migrant lives.[34] But mounting costs and domestic unpopularity meant the operation was replaced in November 2014 with EU-led Frontex Operation Triton.[35] Triton was not endowed with comparable naval assets.[36] When the number of migrants embarking on Mediterranean crossings doubled from 2014 to 2015,[37] Triton was unable to perform the same life-saving functions. The death toll climbed, as Frontex itself had predicted.[38]
On 19 April 2015, a sinking off the coast of Libya caused an estimated 900 deaths.[39] Frontex’s budget and operational area were subsequently expanded with its rebranding as the European Border and Coast Guard, but Triton’s tasks and operational area remained the same.[40] The establishment of the Common Security and Defence Policy (‘CSDP’) initiative EU Naval Force Mediterranean (‘EUNAVFOR Med’) Operation Sophia reinforced the securitising turn, prioritising military action to ‘disrupt smugglers’ business models’ over proactive search-and-rescue.[41]
Despite the EU’s supranational human rights agenda,[42] and the European Council’s plan to resettle 160,000 migrants from Italy and Greece within Europe, [43] Member State responses were increasingly unilateral and influenced by ultranationalism.[44] Hungary, Slovakia, Bulgaria and Poland’s opposition meant the Council decisions had to be forced through via Qualified Majority Voting,[45] entrenching on the supranational level an anti-immigration camp that was reflected in domestic right-wing political parties across Europe.[46]
Fearing the political costs of the ongoing crisis,[47] and having observed the electoral consequences that followed Merkel’s Wir Schaffen das policy of suspending Dublin in respect of Syrian asylum-seekers who had reached German territory,[48] in March 2016 the EU concluded a deal with Turkey. Turkey agreed to take back all new irregular migrants intercepted on their way to the Greek islands, in return for the EU resettling one refugee from Turkey for every migrant returned.[49]
Through all this, numbers of deaths remained chronically high.[50] The maritime migration problem remains unsolved. On 10 August 2020, 18 Syrian migrants crossed the English Channel; UK Home Secretary Priti Patel affirmed the Government’s commitment to ‘shutting down this route.’[51]
There has been no unified EU response to migration, let alone one informed by a common and sustained commitment to comprehensive protection of migrants at sea. While EU external relations communications are laden with the rhetoric of respect for human rights and international law,[52] especially CSDP instrument Operation Sophia,[53] the solutions that have arisen – namely, treating Turkey as a safe third country despite evidence of the government’s human rights violations and free press crackdown –[54] suggest this is but a humanitarian ‘fig leaf’.[55] The multiple intervening layers of international law and domestic political expedience muddy the waters as to what is to be prioritised in combating migration at sea.
Clearly, there are people in need of protection, and a State duty to protect them exists in non-refoulement, the fundamental and non-derogable prohibition on returning asylum-seekers to the frontiers of territories where their lives would be threatened because of their race, religion, nationality or membership of a particular social group.[56] Importantly, the obligation applies independently of formal refugee status recognition, and equally to the individual arrival as the mass influx. [57] Anyone who crosses the Mediterranean in search of asylum could conceivably be entitled to non-refoulement.[58] However, the European response suggests a need to dispel uncertainty about whether States’ protection obligations really cover every geographical stage of the migrant journey across the sea.
Every EU Member State is a Party to the 1951 Convention and its 1967 Protocol,[59] and thus bound by Article 33 non-refoulement. Though this provision is not directly replicated in EU law, it is implied by ECHR Article 3.[60] Article 19(2) of the Charter of Fundamental Rights also prohibits collective expulsions of non-nationals where there is a serious risk that they would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.[61] Additionally, the regulations establishing Frontex[62] and EUNAVFOR Med[63] confirm non-refoulement is legally binding.
However, the lack of geographical specification as to where the duty applies leads some States to claim that they have no duty outside their territory.[64] Yet it is unacceptable for non-refoulement to be territorially linked where the EU is clearly stretching the relationship between territory and migration control,[65] through direct interdiction of asylum-seekers on the high seas, and indirect controls like a restrictive common visa policy and international liaison officers stationed at airports where illegal migrants are likely to come.[66]
It is uncontroversial that States’ non-refoulement obligations arise wherever they exercise jurisdiction,[67] that is, the right of States to implement their domestic laws. Yet defining ‘jurisdiction’ in the Mediterranean is complicated by the interaction of the law of the sea and European supranational law. In some areas, who has jurisdiction where is clearly stated. The Law of the Sea Convention assigns sovereign jurisdiction to coastal States in their territorial waters,[68] and to flag States over ships flying their flag.[69] Flowing from coastal states’ sovereignty[70] is the proposition that they are primarily responsible for addressing the protection needs of intercepted or rescued migrants, and therefore that they owe non-refoulement to these migrants.[71] In the latter case, flag states have exclusive jurisdiction over ships that fly their flag,[72] so if a migrant boat were registered in a particular State, then that State would be responsible for providing protection (though this raises some obvious problems).[73]
But there are many situations and geographical zones which are less clear. States may conclude agreements wherein coastal States grant permission for other States to exercise enforcement jurisdiction within their territorial seas.[74] In the contiguous zone, coastal states may have a degree of latitude to board vessels for inspection,[75] but it is unclear whether this extends to include a power to arrest vessels to prevent breaches of their immigration laws.[76] In the exclusive economic zone, non-interference with foreign-flagged vessels prevails,[77] except in the case of flag state consent,[78] or a right of visit arising from suspicion of the vessel’s participation in the slave trade[79] or statelessness.[80] Migrant vessels are especially likely to be stateless, due to the clandestine nature of their passage, but UNCLOS is unclear on what coastal States may do apart from inspecting these vessels. The fact that ship-users are not under the authority of a particular State does not itself constitute an unlawful act,[81] and UNCLOS is silent on whether and who may seize stateless vessels besides.[82] This ambiguity is sharpened in the high seas context, where stateless vessels are not emplaced in any State’s jurisdiction by virtue of their geographical location.
The trend for States to cite competing border control priorities to justify summary pushbacks[83] indicates another area of friction between two legal regimes with different priorities. States do have a legitimate interest in migration control.[84] The EU’s landmark achievement of the Schengen Area relies on stringent external border maintenance.[85] The EU Council Regulation of 26 October 2004, establishing Frontex, cites the ‘return of third-country nationals illegally present in Member States’ as a reason for enhanced Member States solidary in external border management.[86] Article 17 of the Schengen Agreement also provides for Member States to take ‘complementary measures to safeguard security and combat illegal immigration by nationals of States that are not members of the European Communities.’[87]
Thus ‘jurisdiction’, defined in treaty in terms of geographical zones and their relationship with the territory of States, is insufficient to give non-refoulement the comprehensive operation it needs to effectively protect asylum-seekers from arbitrary return to territories where their lives may be threatened. The principle of effectiveness would suggest some other reading of jurisdiction is needed, so that non-refoulement’s protection is not rendered illusory by States’ extraterritorial migration control strategies.[88] Yet territorial sovereignty has been rooted in the notion of asylum since the Asylum case,[89] and early ECtHR jurisprudence on the territoriality of non-refoulement reflects this.[90] In Banković and Others,[91] the Grand Chamber decided that only in exceptional cases will States’ acts outside their territories constitute an exercise of jurisdiction.[92]
Yet since, the ECtHR has progressively dismantled the linkage between jurisdiction and territory in its jurisprudence on ECHR Article 1, which states that ‘[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ In Öcalan v Turkey[93] and Al Saadon and Mufdhi v the United Kingdom,[94] the Court brought in the notion of control exercised by the respondent States over the applicants as establishing whether those States had exercised jurisdiction for the purpose of Article 1. While Medvedyev reinforced this idea of exclusive control, with the Grand Chamber ruling that France had exercised jurisdiction through its armed forces’ de facto control of the applicants in the absence of de jure jurisdiction,[95] in that case the applicants were eventually brought to France to be tried.[96] There remained a link between France’s act of control and the applicants’ presence on its territory. Al-Skeini and Others[97] reiterated that the ‘exercise of physical power and control over the person in question’ was the decisive factor in establishing Article 1 jurisdiction and that no nexus with the physical territory of the State was needed,[98] but went on to discuss the necessity for that power and control to be exerted as an exercise of sovereign powers ceded to the respondent State by the territorial State in which the acts took place.[99] Yet while some sort of territorial link remained, Al-Skeini established an important stepping-stone principle with particular relevance to migrants at sea: that jurisdiction could be established according to facts rather than fixed principles.[100]
The ECtHR finally severed the link in Hirsi Jamaa, a case concerning the high seas interception of Somali and Eritrean nationals by the Italian Revenue Police and Coast Guard,[101] as part of a broader programme of maritime pushbacks since 2008.[102] The applicants were transferred to Italian military ships and taken back to Tripoli without being identified of their true destination and despite that the applicants objected to being handed over to the Libyan authorities on arrival.[103] Various organisations, including the Council of Europe’s Committee for the Prevention of Torture or Punishment[104] and Human Rights Watch,[105] had expressed the opinion that the pushbacks violated the principle of non-refoulement, because the Italian operations offered no opportunity for the intercepted migrants to be individually identified or declare their intention to seek international protection. The applicants alleged that Italy had breached ECHR Article 3, by sending them back to Libya from the high seas without individual status determinations in the circumstance that Italy owed them non-refoulement.[106] The Court stated that ‘the special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the [ECHR]’ which Member States had undertaken to provide.[107]
The ECtHR dealt with the question of ECHR Article 1 jurisdiction as a necessary condition for Italy to be held responsible for its summary return of the applicants to Libya.[108] While the Court reiterated that jurisdiction within Article 1 is primarily territorial,[109] and that Contracting States’ extraterritorial acts would only constitute Article 1 exercises of jurisdiction in exceptional cases,[110] it also confirmed that finding ‘exceptional circumstances’ is a factual question centred on the existence of full and exclusive control over the person or area in question.[111] Where the existence of control and authority founds jurisdiction, ‘the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to the situation of that individual.'[112] The jurisdictional linkage is established by a State’s use of its personnel and vessels to interdict migrants on the high seas,[113] even though the applicants were never present in Italian territory.[114] Here, the events in question took place on Italian military ships, which were crewed by Italian forces, which had continuous and exclusive control over the applicants until they were handed over to Libyan authorities in Tripoli.[115]
The legal position in Europe is therefore that the exercise of exclusive and complete de jure or de facto control of a person by State personnel in any area is ECHR Article 1 ‘jurisdiction’ giving rise to the non-refoulement obligation. Kim argues that this extraterritorial reading of non-refoulement is of paramount importance considering the increased European reliance on restrictive external migration measures,[116] like the common visa policy and international liaison officers.[117] It is a position that accords with general international law,[118] and brings the ECtHR’s practice closer to the International Court of Justice’s, in terms of presuming that international human rights treaties apply extraterritorially in absence of a territorial limitation.[119] The similarity between the form of protection accorded by ECHR non-refoulement and Convention Against Torture protection, arising on de jure or de facto control of a person by a State party,[120] reinforces the argument that non-refoulement may share in the prohibition on torture’s jus cogens status.[121] The Court’s firm statement that complex and pressing migration problems ‘cannot justify recourse to practices which are incompatible with Convention obligations’[122] reflects the overall trend for international judicial bodies to characterise States’ human rights and protection obligations as comprehensively as possible.
But there remain critical areas of ambiguity where States may have room to evade their protection obligations. What level of control is necessary to establish jurisdiction as in Hirsi Jamaa? As the cases thus far have either involved the transfer of migrants to military ships, or military personnel boarding and taking full control of migrant vessels,[123] it is unclear whether jurisdiction can be established by lesser degrees of control, like pushing a migrant vessel in another direction, or merely shouting orders.[124] Linked to this issue is that of ‘ship-riders’, personnel of a State to which the interdicting State proposes to return the migrants in question, who are aboard the interdicting State’s vessels to ‘authorise’ the return of the migrants to the return State.[125] Kim suggests that physical custody is required to establish Article 1 jurisdiction, and that EU States who cooperate with third countries may not always be responsible under ECHR or general human rights law.[126] Whether jurisdiction is established by the acts of private ships has not yet been litigated, but unless such conduct is attributable to the State, it seems unlikely to trigger an obligation to accord non-refoulement protections. While EU Member State-flagged private ships belonging to NGOs have picked up the slack in Mediterranean search-and-rescue,[127] that they face the threat of prosecution in doing so suggests that their actions are unlikely to be ‘adopted’ as to be attributable under ILC Draft Article 11.[128]
The scenario of migrants in distress on the high seas offers some hope that it is legally possible to close these gaps, ironically by bringing in the regulatory regimes that operate to create these ambiguities in the maritime environment in the first place. The high seas environment, Goodwin-Gill argues, provide opportunities for States to ‘project a non-territorial conception of national interests into a common or even a contested space’ that does not match the territorial reading of protection obligations they wish to adopt.[129] States are reluctant to commit themselves to assume responsibility for the asylum claims of vessels arrested at sea, and thus may seek to evade their non-refoulement obligations by preventing migrants’ entry into territorial waters.[130] Yet the mere prevention of migrants’ entry into territorial seas is enough to render those migrants’ fates uncertain, as ill-equipped as they and their vessels usually are to cope with long journeys and heavy weather.[131]
The uptick in the number of deaths at sea following the end of Mare Nostrum indicates that a proactive, coordinated, supranational approach to rescuing migrants was needed to prevent loss of life.[132] Yet Frontex Operation Triton and EUNAVFOR Med Operation Sophia’s operational practice reflects an avoidance of intervening in situations where high seas rescues may be required. Triton’s search-and-rescue activities comprise only 24% of its operations at their peak in 2015.[133] While Operation Sophia rescued 50,000 migrants, this compares unfavourably with the 150,000 rescued by Mare Nostrum in a much shorter operational period.[134] The fact that EUNAVFOR ships are invisible on the Italian Maritime Rescue Coordination Centre’s geolocalization system means that they are not among the vessels that can be identified as being suitably positioned to conduct rescue operations.[135] Operation Sophia may also have contributed to the use of increasingly unseaworthy rubber boats and dinghies through its destruction of smugglers’ boats, which place migrant passengers at even greater risk of sinking or capsize.[136]
The EU’s avoidance occurs despite that the duty to assist vessels in distress at sea is a long-standing maritime tradition that manifests fundamental considerations of humanity.[137] This obligation is codified in UNCLOS Article 98(1), reinforced by the continued operation of customary international law imposing the same obligation.[138] Further, the search-and-rescue regime imposes positive coast-watching,[139] rescue preparedness,[140] and inter-State coordination obligations on State parties that are directed to this humanitarian purpose.[141] All EU Member States are parties to the SOLAS Convention, and all but three to the SAR Convention.[142] Member States must establish SAR regions by agreement with other States,[143] and establish, operate, and maintain an 'adequate and effective search and rescue service'.[144] Further, the SOLAS Convention requires State parties to regulate the activities of all ships flying their flag, wherever they may be,[145] and to provide for the rescue of persons in distress at sea ‘around its coasts’, without limitation by distance or maritime zone.[146]
The fundamentally humanitarian character of the duty to assist in distress means it applies to any person, regardless of their juridical status,[147] and applies to private vessels as well as public ones.[148] Frontex and EUNAVFOR have themselves recognised the concept of a moral and legal obligation to rescue: Frontex has stated that ‘search and rescue remains a priority for the agency’,[149] and that its budgetary expansion in 2016 was to reinforce its capacity to conduct save lives at sea.[150] EUNAVFOR Med has stated that Sophia is intended to ‘[save] lives by reducing crossings’.[151] Between their inception and June 2017, Frontex iterated ‘rescue’ 148 times in its press releases;[152] EUNAVFOR iterated ‘rescue’ 194 times and ‘save’ 122 times.[153] On 3 October 2019, the Council of Europe Parliamentary Assembly called again for European States to place the ‘rescue of men, women and children in the Mediterranean above political and other considerations,’[154] and to respect the terms of the SAR Convention.[155]
The SAR Convention defines the ‘distress phrase’ in which the rescue obligation arises as a ‘situation wherein there is a reasonable certainty that a person, vessel or other craft is threatened by grave and imminent danger and requires immediate assistance.’[156] Komp argues this is equally open to a narrow reading, in which only very serious situations that directly threaten human life are considered ‘distress’, as a broad reading, wherein the danger is grave but not on the point of occurrence.[157] Allegations that Frontex’s reduced participation in search-and-rescue is a result of ‘quibbling’ with definitions of distress suggest this ambiguity plays a part in States’ practice of undermining the comprehensiveness of their obligations to protect and assist migrants at sea.[158]
The ECtHR’s response has been to reaffirm that States’ obligation to assist in distress, by bringing in ECHR Article 2 right to life jurisprudence that imposes positive obligations to take precautionary measures against foreseeable risks. The Human Rights Committee has stated that the right to life incorporates positive duties for States to prevent loss of life.[159] Komp argues that right to life jurisprudence can be read into the maritime context and the duty to assist in distress because of the duty’s fundamentally humanitarian character, which precedes its codification, as well as the object and purpose of preventing loss of life at sea involved in Article 98(1) and the SOLAS and SAR Conventions.[160]
Osman v United Kingdom states that the test for breach of these positive obligations is firstly, whether the State knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party; and secondly, the State’s failure to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.[161] Subsequent statements about the standard of knowledge of risk required in the first limb of the test suggest that the ECtHR has not confined the concept of risk to life to that posed by third parties’ criminal acts: Oneryildiz v Turkey dealt with a gas explosion resulting from the sub-standard operation of a rubbish dump near a slum,[162] while Budayeva and Others v Russia dealt with Russia’s failure to ensure emergency relief plans were in place for a town located in a mudslide-prone area.[163] The ECtHR seems to state that States are obliged to take precautions even when the exact nature and timing of the threat cannot be envisioned: precautionary measures must be put in place if this can reasonably be expected of the authorities concerned.[164] This applies even when the conduct of the individual placed at risk by the State’s inaction contributed themselves to the threat to their life.[165] Migrants contribute to the threat to their lives by choosing to risk the journey, and the timing and nature of the threats to their lives may vary, from engine breakdown, capsize or sinking in heavy weather, or inadequate food and water.
Considering that Mediterranean crossings have continued for at least a decade, and continue to cause migrant deaths at sea today it seems reasonable to expect that EU Member States are required by Article 2 to take the precautionary measure of instituting robust search-and-rescue programs in their SAR regions. This argument is strengthened by the fact that proactive search-and-rescue has been shown to be effective in reducing death tolls compared to mere incidental search-and-rescue in the context of border control operations. Yet there is a potential circularity in that positive obligations may only arise by virtue of a State’s jurisdiction under Article 1,[166] that may need to be resolved by litigation specific to the maritime context.
While refugee law and the regimes it intersects with continue to evolve towards a more comprehensive obligation on States to take active steps to provide protection to migrants at sea, the European experience shows that practical and political roadblocks to giving non-refoulement a truly comprehensive application may be more difficult to surmount.
Firstly, that deaths at sea continue to occur even in 2020 mean there is a pressing need for the EU and its Member States to transition from militarised border control back to search-and-rescue.[167] Yet search-and-rescue necessarily involves disembarkation in a ‘place of safety’, where the operation terminates and the basic human needs of the rescued are met.[168] While States have no international legal duty to disembark rescued migrants on their own territory,[169] in almost all cases, only onshore status determination procedures will be effective to meet States’ obligation not to arbitrarily return migrants to the country they may have fled under non-refoulement.[170] Moreno-Lax considers it unrealistic to expect that border patrol or search-and-rescue vessels should be equipped with the comprehensive suite of reception and procedural facilities, translators, and legal assistance to allow migrants’ individual circumstances to be effectively considered.[171] This imposes a much greater burden on States who exercise jurisdiction to rescue migrants at sea, exacerbating the practical differences arising from the rescue of potential asylum-seekers and persons in distress who are not in need of protection and can be easily repatriated.[172]
The dysfunction of ad-hoc, unilateral national responses to migration into Europe shows a pressing need for a united supranational approach, but the division of sovereign competencies set up by the EU’s constituting treaties is a significant roadblock. The Member States’ reserved competence to undertake search-and-rescue[173] is at odds with the central position the EU has assumed in coordinating search-and-rescue, because of their perceived implications for national security.[174] But the fact that it cannot be responsible for search-and-rescue per se means that search-and-rescue will be relegated to mere incident to the primary objective of border control:[175] Operation Triton is a key example.[176] EU centrality blurs the lines of responsibility between it and Member States, creating further ambiguity about the attribution of internationally wrongful conduct.[177] The crux of the problem is that the authority and control to implement measures that would allow States to fulfil their protection obligations on one hand, and responsibility for the failure to do so, are delinked. This problem stems from the structure of the relationship between the EU and its Member States, meaning deeper reform of the Union itself may be necessary. But with COVID-19 exacerbating internal divisions,[178] the prospects seem slim.
Protection-minded States also need to be aware of opportunists like Turkey, who use migration crises to deprive States of domestic political options for complying with international law obligations. Greenhill argues that Turkey manipulated its position at the European frontier to threaten the EU into conceding financial support and a Syrian border no-fly zone, lest Turkey flood Europe with migrants.[179] The Turkey deal further mobilised domestic pro-immigration camps under the perception that the EU had bowed to their anti-immigration opponents,[180] increasing Member States’ vulnerability to domestic political capture over time by rendering the two camps’ demands ever more mutually incompatible.[181]
Finally, at the definitional level, migration needs to be reconceptualised not as a military problem to be solved by deterrence, but as a multi-faceted humanitarian problem requiring global engagement. The ECBG was created with the aim of integrating Member States’ border security systems against all kinds of external threats;[182] using the ECBG and CSDP to respond to boat migration has ‘securitised’ the phenomenon as an existential threat to the EU and its Member States.[183] But securitising migration, and in turn search-and-rescue, risks setting a crisis tone that sets off short-sighted State security responses instead of prompting sustained and cooperative efforts to provide protection to those most in need of it.[184] Here the legal tradition of accounting for fundamental considerations of humanity, even in high security stakes situation, supports the EU’s strongly humanitarian rhetoric,[185] but turning talk into reality depends on the political will of Member States.
The international law of refugee protection is continuously improving its coverage of migrants at sea, propelled by the efforts of international judicial bodies and refugee advocates. However, at the heart of the migration ‘problem’ there remains an intractable political tension between the altruism and self-interest of people, States, and supranational organisations. Though the ECtHR has been effective in delinking State responsibility from territory by premising Article 1 jurisdiction on States’ exercise of factual control over individuals, this tension cannot be resolved only be reference to law. The law of non-refoulement remains ambiguous in key areas, namely in relation to the degree of control needed to found State responsibility, and the attributability of private ships’ and third-country shipriders’ acts, but these ambiguities perhaps matter less than how States make use of them to justify border control missions and a disinclination to undertake proactive search-and-rescue that would raise their non-refoulement obligations to the survivors. Refugee advocates and supranational lawmakers should be aware of the potential motivating factors for EU Member States to devise new avoidance strategies that fit into the gaps of the ECtHR’s current non-refoulement and right to life jurisprudence.
Amnesty International, Italy/Malta: Obligation to Safeguard Lives and Safety of Migrants and Asylum Seekers (Public Statement, Amnesty International, 7 May 2009)
Andersson, Ruben, ‘Europe’s “Failed Fight” Against Irregular Migration: Ethnographic Notes on a Counterproductive Industry’ (2016) 42(7) Journal of Ethnic and Migration Studies 1055
Andrade, Paula García, ‘Extraterritorial Strategies to Tackle Irregular Immigration by Sea: A Spanish Perspective’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial Migration Control (Martinus Nijhoff, 2010) 305
Archick, Kristin, The European Union: Current Challenges and Future Prospects (No R44249, Congressional Research Service, 21 June 2016) <https://www.swsu.ru/sbornik-statey/pdf/R44249.pdf>
Barnes, Richard, ‘Refugee Law at Sea’ (2004) 53 International and Comparative Law Quarterly 47
Barnes, Richard, ‘The International Law of the Sea and Migration Control’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial Immigration Control (Martinus Nijhoff, 2010) 103
Basaran, Tugba, ‘The Saved and the Drowned: Governing Indifference in the Name of Security’ (2015) 46(3) Security Dialogue 205
Battjes, Hemme, ‘Territoriality and Asylum Law: The Use of Territorial Jurisdiction to Circumvent Legal Obligations and Human Rights Law Responses’ in Martin Kuijer and Wouten Werner (eds), Netherlands Yearbook of International Law 2016 (Asser Press, 2017) 263
Benková, Livia, ‘Europe’s Response to the Migration Crisis’ (2017) 2017(3) Fokus: Austria Institut für Europa und Sicherheitspolitik 1
Buzan, Barry, Ole Waever and Jaap de Wilde, Security: A New Framework for Analysis (Lynne Reiner, 1998)
Carrera, Sergio et al, The European Border and Coast Guard: Addressing Migration and Asylum Challenges in the Mediterranean? (Task Force Report, Centre for European Policy Studies, 1 February 2017)
Chircop, Aldo, ‘The Customary Law of Refuge for Ships in Distress’ in Aldo Chircop and Olof Linden (eds), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom (Martinus Nijhoff, 2006) 161
Churchill, Robin R and A Vaughan Lowe, The Law of the Sea (Manchester University Press, 3rd ed, 1999)
Coppens, Jasmine, ‘Interception of Migrant Boats at Sea’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 199
Coppens, Jasmine and Edouard Somers, ‘Towards New Rules on Disembarkation of Persons Rescued at Sea?’ (2010) 25 International Journal of Marine and Coastal Law 377
Cusumano, Eugenio, ‘Migrant Rescue as Organized Hypocrisy: EU Maritime Missions Offshore Libya Between Humanitarianism and Border Control’ (2019) 54(1) Cooperation and Conflict 3
Cusumano, Eugenio, ‘Straightjacketing Migrant Rescuers? The Code of Conduct on Maritime NGOs’ (2017) 24(1) Mediterranean Politics 106
Cuttitta, Paolo, ‘Repoliticisation through Search and Rescue? Humanitarian NGOs and Migration Management in the Central Mediterranean’ (2017) 23(3) Geopolitics 632
Dastyari, Azedeh and Daniel Ghezelbash, ‘Asylum at Sea: The Legality of Shipboard Refugee Status Determination Procedures’ (2020) 32(1) International Journal of Refugee Law 1
Den Hejier, Maarten, Europe and Extraterritorial Asylum (Leiden University Dissertations, 2011)
Durieux, Jean-François, ‘The Duty to Rescue Refugees’ (2016) 28(2) International Journal of Refugee Law 637
Esperti, Marta, ‘Rescuing Migrants in the Central Mediterranean: The Emergence of a New Civil Humanitarianism at the Maritime Border’ (2020) 64(4) American Behavioural Scientist 436
Fernandez, Maïté, ‘The EU External Borders Policy and Frontex-Coordinated Operations at Sea: Who Is in Charge? Reflections on Responsibility for Wrongful Acts’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 379
Fink, Melanie, ‘A “Blind Spot” in the Framework of International Responsibility? Third Party Responsibility for Human Rights Violations: The Case of Frontex’ in Thomas Gammeltoft-Hansen and Jens Vedsted-Hansen (eds), Human Rights and the Dark Side of Globalisation (Routledge, 2016) 272
Ghezelbash, Daniel et al, ‘Securitization of Search and Rescue at Sea: The Response to Boat Migration in the Mediterranean and Offshore Australia’ (2018) 67(2) International and Comparative Law Quarterly 315
Giuffré, Mariagiulia, ‘Access to Asylum at Sea? Non-Refoulement and A Comprehensive Approach to Extraterritorial Human Rights Obligations’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 248
Goodwin-Gill, Guy S, ‘Setting the Scene: Refugees, Asylum Seekers and Migrants at Sea - the Need for a Long-Term, Protection-Centred Vision’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 17
Goodwin-Gill, Guy S, ‘The Right to Seek Asulum: Interception at Sea and the Principle of Non-Refoulement’ (2011) 23(3) International Journal of Refugee Law 443
Goodwin-Gill, Guy S and Jane McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007)
Greenhill, Kelly M, ‘Open Arms Behind Barred Doors: Fear, Hypocrisy and Policy Schizophrenia in the European Migration Crisis’ (2016) 22(2) European Law Journal 317
Hampshire, James, ‘Europe’s Migration Crisis’ (2015) 6(3) Political Insight 8
Heller, Charles and Lorenzo Pezzani, Death by Rescue: The Lethal Effects of the EU’s Policies of Non-Assistance (Death by Rescue, 18 April 2016) <https://deathbyrescue.org/>
International Organization for Migration, ‘IOM: Mediterranean Arrivals Reach 110,699 in 2019; Deaths Reach 1,283; World Deaths Fall’, International Organization for Migration Press Releases (online, 3 January 2020) <https://www.iom.int/news/iom-mediterranean-arrivals-reach-110699-2019-deaths-reach-1283-world-deaths-fall>
Jeandesboz, Julien and Polly Pallister-Wilkins, ‘Crisis, Routine, Consolidation: The Politics of the Mediterranean Migration Crisis’ (2016) 21(2) Mediterranean Politics 316
Kim, Seunghwan, ‘Non-Refoulement and Extraterritorial Jurisdiction: State Sovereignty and Migration Controls at Sea in the European Context’ (2017) 30 Leiden Journal of International Law 49
Klug, Anja and Tim Howe, ‘Extraterritorial Interception Measures’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial Immigration Control (Martinus Nijhoff, 2010) 65
Komp, Lisa-Marie, ‘The Duty to Assist Persons in Distress: An Alterantive Source of Protection against the Return of Migrants to the High Seas?’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 222
Léonard, Sarah, ‘EU Border Security and Migration into the European Union: FRONTEX and Securitisation through Practice’ (2010) 19(2) European Security 231
Little, Adrian and Nick Vaugh-Williams, ‘Stopping Boats, Saving Lives, Securing Subjects: Humanitarian Borders in Europe and Australia’ (2017) 23(3) European Journal of International Relations 533
Lowe, A Vaughan, ‘The Right of Entry into Maritime Ports in International Law’ (1977) 14 San Diego Law Review 597
Meijers, Herman, The Nationality of Ships (Martinus Nijhoff, 1967)
Metcalfe-Hough, Victoria, The Migration Crisis? Facts, Challenges and Possible Solutions (Briefing, Overseas Development Institute, 20 October 2015) <https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/9913.pdf>
Milanovic, Marko, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford University Press, 2011)
Miller, Sarah, ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention’ (2009) 20(4) European Journal of International Law 1223
Moreno-Lax, Violeta, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’ (2012) 12(3) Human Rights Law Review 574
Moreno-Lax, Violeta, Interdiction of Asylum Seekers at Sea: The Law and (Mal)Practice in Europe and Australia (Policy Brief 4, Kaldor Centre for International Refugee Law, May 2017)
Moreno-Lax, Violeta, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’ (2011) 23 International Journal of Refugee Law 174
Moreno-Lax, Violeta, ‘The EU Humanitarian Border and the Securitization of Human Rights: The “Rescue-through-Interdiction/Rescue-without-Protection” Paradigm’ (2018) 56(1) Journal of Common Market Studies 119
Nessel, Lori A, ‘Externalised Borders and the Invisible Refugee’ (2009) 40 Columbia Human Rights Law Review 625
Nordquist, Myron H et al (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Volume III (Kluwer Law International, 1995)
Nováky, Niklas, ‘The Road to Sophia: Explaining the EU’s Naval Operation in the Mediterranean’ (2018) 17(2) European View 197
O’Brien, Killian S, ‘Refugees on the High Seas: International Refugee Law Solutions to a Law of the Sea Problem’ (2011) 3(2) Goettingen Journal of International Law 715
O’Connell, Daniel P, The International Law of the Sea (Clarendon Press, 1982)
Pallis, Mark, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts between Legal Regimes’ (2002) 14(2) International Journal of Refugee Law 329
Pallister-Wilkins, Polly, ‘Humanitarian Rescue/Sovereign Capture and the Policing of Possible Responses to Violent Borders’ (2017) 8(1) Global Policy 19
Papanicolopulu, Irini, ‘A Missing Part of the Law of the Sea Convention: Addressing Issues of State Jurisdiction over Persons at Sea’ in Clive Schofield, Seokwoo Lee and Moon-sang Kwon (eds), The Limits of Maritime Jurisdiction (Martinus Nijhoff, 2014) 387
Park, Jeanne, ‘Europe’s Migration Crisis’, Council on Foreign Relations (New York, online, 23 September 2015) <https://www.cfr.org/backgrounder/ europes-migration-crisis>
Patalano, Alessio, ‘NightMare Nostrum? Not Quite’ (2015) 160(3) RUSI Journal 14
Redelbach, Andreas, ‘Protection of the Right to Life by Law and Other Means’ in Bertrand G Ramcharan (ed), The Right to Life in International Law (Martinus Nijhoff, 1985) 182
Riddervold, Marianne and Ruxandra-Laura Bosilca, Not so Humanitarian After All? Assessing EU Naval Mission Sophia (Working Paper No 5/2017, ARENA Centre for European Studies, 11 April 2017) <https://www.sv.uio.no/arena/english/research/publications/arena-working-papers/2017/wp-5-17.pdf>
Rijpma, Jorrit and Mathias Vermeulen, ‘EUROSUR: Saving Lives or Building Borders?’ (2015) 24(3) European Security 454
Ristik, Jelena, ‘The Right to Asylum and the Priniple of Non-Refoulement Under the European Convention on Human Rights’ (2017) 13(28) European Scientific Journal 108
Rittberger, Berthold, Helena Schwarzenbeck and Bernhard Zangl, ‘Where Does the Buck Stop? Explaining Public Responsibility Attributions in Complex International Institutions’ 55(4) Journal of Common Market Studies 909
Rothwell, Donald R and Tim Stephens, The International Law of the Sea (Hart, 2nd ed, 2016)
Shearer, Ivan A, ‘Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels’ (1986) 35(2) International and Comparative Law Quarterly 320
Spijkerboer, Thomas, ‘The Human Costs of Border Control’ (2007) 9 European Journal of Migration and Law 127
Tazzioli, Martina, ‘Border Displacements: Challenging the Politics of Rescue between Mare Nostrum and Triton’ (2016) 4(1) Migration Studies 1
Abulaziz, Cabales & Balkandali v United Kingdom (European Commission of Human Rights, Plenary Session, Application No. 15/1983/71/107-109, 24 April 1985)
Airey v Ireland [1979] ECHR 3; (1979) 2 EHRR 305
Al Saadon & Mufdhi v United Kingdom (European Court of Human Rights, Fourth Section, Application No. 61498/08, 30 June 2009)
Al-Skeini & Others v The United Kingdom, (European Court of Human Rights, Grand Chamber, Application No. 55721/07, 7 July 2011)
Banković & Others v Belgium & Others, (European Court of Human Rights, Grand Chamber, Application No. 52207/99, 12 December 2001)
Bone v France (European Court of Human Rights, Second Section, Application No. 69869/01, 1 March 2005)
Boujlifa v France (2000) 30 EHRR 419
Budayeva & Others v Russia (European Court of Human Rights, First Section, Application Nos. 15339/02, 21166/03, 20058/02, 11673/02 and 15343/02, 20 March 2008)
Case Concerning Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) (2005) 168 ICJ Rep
Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4
Drozd & Janousek v France & Spain ((European Court of Human Rights, Plenary Session, Application No. 12747/87, 26 June 1992))
Hirsi Jamaa & Others v Italy, (European Court of Human Rights, Grand Chamber, Application No 277765/09, 23 February 2012)
Ilasçu & Others v Moldova & Russia (European Court of Human Rights, Grand Chamber, Application No. 48787/99, 8 July 2004)
Kemaloğlu v Turkey (European Court of Human Rights, Second Section, Application No. 19986/06, 10 April 2012)
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (2004) 136 ICJ Rep
Mamatkulov & Askarov v Turkey [2005] ECHR 64; (2005) 41 EHRR 25
Medvedyev & Others v France (European Court of Human Rights, Grand Chamber, Application No. 3394/03, 29 March 2010)
MSS v Belgium & Greece (European Court of Human Rights, Grand Chamber, Application No. 30696/09, 21 January 2011)
Öcalan v Turkey (European Court of Human Rights, Grand Chamber, Application No. 46221/99, 12 May 2005)
Öneryildiz v Turkey (European Court of Human Rights, Grand Chamber, Application No. 48989/99, 30 November 2004)
Osman v United Kingdom (European Court of Human Rights, Grand Chamber, Application No. 87/1997/871/1083, 28 October 1998)
Saint Vincent and the Grenadines v Guinea (Judgment) [1999] ICGJ 336
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
International Convention for the Safety of Life at Sea, opened for signature 1 November 1974, 1184 UNTS 278 (entered into force 25 May 1980)
International Convention on Maritime Search and Rescue, opened for signature 27 April 1974, 1405 UNTS 119 (entered into force 22 June 1985)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994)
Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders [1985] OJ L 239/13
Charter of Fundamental Rights of the European Union [2007] OJ C 303/1
European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953)
Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union Military Operation in the Southern Central Mediterranean [2015] OJ L 112/31
Council Decision (EU) 2014/1601 of 22 September 2015 Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece [2015] OJ L 248/80
Council Decision (EU) 2015/1523 of 14 September 2015 Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece [2015] OJ L 239/146
Council Regulation (EC) 2007/2004 of 26 October 2004 Establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2004] OJ L 349/1
Regulation (EU) 656/2014 of 15 May 2014 on Establishing Rules for the Surveillance of the External Sea borders in the Context of Operational Co-operation Co-ordinated by the European Agency for the Management of Operational Co-operation at the External Borders of the Member States of the European Union (2014) 189/93 OJ L
Regulation (EU) 2016/399 of 9 March 2016 on a Union Code on the Rules Governing the Movement of Persons Across Borders [2016] OJ L 77/1
Council of the European Union, A Secure Europe in a Better World: European Security Strategy (12 December 2003) https://www.consilium.europa.eu/ media/30823/qc7809568enc.pdf
Council of the European Union, Internal Security Strategy for the European Union: Towards a European Security Model (26 March 2010) <https://www.consilium.europa.eu/media/30753/qc3010313enc.pdf>
European Commission, EU Operations in the Mediterranean Sea (European Commission, 2016) <https://ec.europa.eu/home-affairs/sites/ homeaffairs/files/what-we-do/policies/securing-eu-borders/fact-sheets/ docs/20161006/eu_operations_in_the_mediterranean_sea_en.pdf>
European External Action Service, EUNAVFOR Med Operation Sophia: Six Monthly Report (1 January - 31 October) (European External Action Service, 29 November 2016) <https://www.statewatch.org/media/documents/news/ 2016/dec/eu-council-eunavformed-jan-oct-2016-report-restricted.pdf>
European External Action Service, European Union Naval Force - Mediterranean Operations Sophia (European External Action Service, 15 September 2016) <https://eeas.europa.eu/sites/eeas/files/factsheet_eunavfor_ med_en_0.pdf>
Frontex, Concept of Reinforced Joint Operation Tackling the Migratory Flows towards Italy (Joint Operations Unit Report, Frontex, 28 August 2014) <https://deathbyrescue.org/assets/annexes/2.Frontex_Concept_JO_EPN-Triton_28.08.2014.pdf>
Frontex, Frontex Launches Call for Participation of the Member States in Joint Operation Triton (Press Release, Frontex, 26 September 2014) <https://frontex.europa.eu/media-centre/news-release/frontex-launches-call-for-participation-of-the-eu-member-states-in-joint-operation-triton-b9nupQ>
Frontex, Joint Operation Triton (Italy) (Press Release, Frontex, 10 October 2016) <https://frontex.europa.eu/media-centre/focus/joint-operation-triton-italy--ekKaes>
Agence France-Presse, ‘Refugees “Look like an Army”, Says Hungarian PM Viktor Orbán’, The Guardian (online, 23 October 2015) <https://www.theguardian.com/world/2015/oct/23/refugees-look-like-an-army-says-hungarian-pm-viktor-orban>
BBC, ‘Migrant Crossings: Use of Navy Ships to Stop Boats “Dangerous”’, BBC News (online, 10 August 2020) <https://www.bbc.com/news/uk-england-53719575>
Campbell, Zach, ‘Abandoned at Sea: Europe Keeps Its Rescue Ships Far From the Coast of Libya - Where Thousands of Refugees Have Drowned’, The Intercept (online, 2 April 2017) <https://theintercept.com/2017/04/01/ europe-keeps-its-rescue-ships-far-from-the-coast-of-libya-where-thousands-of-refugees-have-drowned/>
Erlanger, Steven, ‘Rise of Far-Right Party in Denmark Reflects Europe’s Unease’, New York Times (online, 19 June 2015) <https://www.nytimes.com/ 2015/06/20/world/europe/rise-of-far-right-party-in-denmark-reflects-europes-unease.html>
Holehouse, Matthew, ‘EU Chief: Migrant Influx Is “Campaign of Hybrid Warfare” by Neighbours to Force Concessions’, The Telegraph (online, 6 October 2015) <https://www.telegraph.co.uk/news/worldnews/europe/eu/ 11915798/EU-chief-Migrant-influx-is-campaign-of-hybrid-warfare-by-neighbours-to-force-concessions.html>
‘Imaginary Criminals: Sea-Watch Considers Legal Steps Against Attorney Zuccaro’, Sea-Watch (online, 24 April 2017) <https://sea-watch.org/en/ imaginary-criminals-sea-watch-considers-legal-steps-against-attorney-zuccaro/>
Kassam, Ashifa, ‘At Least 55 Migrants Died Off North African Coast This Week, Says UN’, The Guardian (online, 20 August 2020) <https://www.theguardian.com/world/2020/aug/19/at-least-55-migrant-fatalities-in-shipwrecks-off-north-african-coast-this-week>
Orange, Richard, ‘Anti-Immigrant Sweden Democrats Now the Biggest Party, According to Poll’, The Telegraph (online, 20 August 2015) <https://www.telegraph.co.uk/news/worldnews/europe/sweden/11814498/Anti-immigrant-Sweden-Democrats-now-the-biggest-party-according-to-poll.html>
Rankin, Jennifer, ‘Bitter EU Summit Exposes Trust Deficit Among Leaders with No End In Sight’, The Guardian (online, 21 July 2020) <https://www.theguardian.com/world/2020/jul/19/bitter-coronavirus-summit-exposes-trust-deficit-among-eu-leaders>
Safdar, Anealla, ‘Mediterranean Refugee Deaths Drop but Experts Say Risks Remain’, Al Jazeera (online, 31 January 2020) <https://www.aljazeera.com/ news/2020/01/mediterranean-refugee-deaths-drop-experts-risks-remain-200130140748919.html>
Scalvini, Marco, ‘Humanitarian Wars and Rejected Refugees’, OpenDemocracy (online, 17 April 2011) <https://www.opendemocracy.net/ en/humanitarian-wars-and-rejected-refugees/>
Spindler, William, ‘Mediterranean Death Toll Soars to All-Time High’, UNHCR Briefing Notes (online, 25 October 2016) <https://www.unhcr.org/ news/briefing/2016/10/580f1d044/mediterranean-death-toll-soars-all-timehigh.html>
The Spectator, ‘The EU’s Deal with Turkey Exposes the Moral Vacuum at Its Heart’, The Spectator (online, 12 March 2016) <https://www.spectator.co.uk/ article/turkey-s-blackmail>
Walton, Gregory and Tim Ross, ‘David Cameron Insists Describing Migrants as a “Swarm” Wasn’t Dehumanising’, The Telegraph (online, 15 August 2015) <https://www.telegraph.co.uk/news/politics/david-cameron/11804861/ David-Cameron-says-describing-migrants-as-a-swarm-wasnt-dehumanising.html>
Draft Articles on Responsibility of States for Internationally Wrongful Acts, Supplement No. 10 (A/56/10), chp.IV.E.1 (November 2001)
Council of Europe Parliamentary Assembly, Resolution 2305 (2019) Saving Lives in the Mediterranean Sea: The Need for an Urgent Response, 33rd sitting (3 October 2019), <https://www.refworld.org/cgi-bin/texis/vtx/rwmain?page= search&docid=5da07d394&skip=0&query=%22saving%20lives%20in%20the%20mediterranean%20sea%22>
Human Rights Committee, General Comment No 6: Article 6 (Right to Life), 16th sess, UN Doc HR/GEN/1/Rev.1 (30 April 1982)
Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004)
International Organization for Migration, ‘Mediterranean’, Missing Migrants: Tracking Deaths Along Migratory Routes (Webpage, 20 July 2020) <https://missingmigrants.iom.int/region/mediterranean>
Agence France-Presse, ‘Refugees “Look like an Army”, Says Hungarian PM Viktor Orbán’, The Guardian (online, 23 October 2015) <https://www.theguardian.com/world/2015/oct/23/refugees-look-like-an-army-says-hungarian-pm-viktor-orban>
Amnesty International, Italy/Malta: Obligation to Safeguard Lives and Safety of Migrants and Asylum Seekers (Public Statement, Amnesty International, 7 May 2009) <https://www.amnesty.org/download/Documents/48000/eur300072009en.pdf>
Andersson, Ruben, ‘Europe’s “Failed Fight” Against Irregular Migration: Ethnographic Notes on a Counterproductive Industry’ (2016) 42(7) Journal of Ethnic and Migration Studies 1055
Andrade, Paula García, ‘Extraterritorial Strategies to Tackle Irregular Immigration by Sea: A Spanish Perspective’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial Migration Control (Martinus Nijhoff, 2010) 305
Archick, Kristin, The European Union: Current Challenges and Future Prospects (No R44249, Congressional Research Service, 21 June 2016) <https://www.swsu.ru/sbornik-statey/pdf/R44249.pdf>
Barnes, Richard, ‘Refugee Law at Sea’ (2004) 53 International and Comparative Law Quarterly 47
Barnes, Richard, ‘The International Law of the Sea and Migration Control’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial Immigration Control (Martinus Nijhoff, 2010) 103
Basaran, Tugba, ‘The Saved and the Drowned: Governing Indifference in the Name of Security’ (2015) 46(3) Security Dialogue 205
Battjes, Hemme, ‘Territoriality and Asylum Law: The Use of Territorial Jurisdiction to Circumvent Legal Obligations and Human Rights Law Responses’ in Martin Kuijer and Wouten Werner (eds), Netherlands Yearbook of International Law 2016 (Asser Press, 2017) 263
BBC, ‘Migrant Crossings: Use of Navy Ships to Stop Boats “Dangerous”’, BBC News (online, 10 August 2020) <https://www.bbc.com/news/uk-england-53719575>
Benková, Livia, ‘Europe’s Response to the Migration Crisis’ (2017) 2017(3) Fokus: Austria Institut für Europa und Sicherheitspolitik 1
Buzan, Barry, Ole Waever and Jaap de Wilde, Security: A New Framework for Analysis (Lynne Reiner, 1998)
Campbell, Zach, ‘Abandoned at Sea: Europe Keeps Its Rescue Ships Far From the Coast of Libya - Where Thousands of Refugees Have Drowned’, The Intercept (online, 2 April 2017) <https://theintercept.com/2017/04/01/europe-keeps-its-rescue-ships-far-from-the-coast-of-libya-where-thousands-of-refugees-have-drowned/>
Carrera, Sergio et al, The European Border and Coast Guard: Addressing Migration and Asylum Challenges in the Mediterranean? (Task Force Report, Centre for European Policy Studies, 1 February 2017)
Chircop, Aldo, ‘The Customary Law of Refuge for Ships in Distress’ in Aldo Chircop and Olof Linden (eds), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom (Martinus Nijhoff, 2006) 161
Churchill, Robin R and A Vaughan Lowe, The Law of the Sea (Manchester University Press, 3rd ed, 1999)
Coppens, Jasmine, ‘Interception of Migrant Boats at Sea’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 199
Coppens, Jasmine and Edouard Somers, ‘Towards New Rules on Disembarkation of Persons Rescued at Sea?’ (2010) 25 International Journal of Marine and Coastal Law 377
Council of the European Union, A Secure Europe in a Better World: European Security Strategy (12 December 2003) https://www.consilium.europa.eu/media/30823/qc7809568enc.pdf
Council of the European Union, Internal Security Strategy for the European Union: Towards a European Security Model (26 March 2010) <https://www.consilium.europa.eu/media/30753/qc3010313enc.pdf>
Cusumano, Eugenio, ‘Migrant Rescue as Organized Hypocrisy: EU Maritime Missions Offshore Libya Between Humanitarianism and Border Control’ (2019) 54(1) Cooperation and Conflict 3
Cusumano, Eugenio, ‘Straightjacketing Migrant Rescuers? The Code of Conduct on Maritime NGOs’ (2017) 24(1) Mediterranean Politics 106
Cuttitta, Paolo, ‘Repoliticisation through Search and Rescue? Humanitarian NGOs and Migration Management in the Central Mediterranean’ (2017) 23(3) Geopolitics 632
Dastyari, Azedeh and Daniel Ghezelbash, ‘Asylum at Sea: The Legality of Shipboard Refugee Status Determination Procedures’ (2020) 32(1) International Journal of Refugee Law 1
Den Hejier, Maarten, Europe and Extraterritorial Asylum (Leiden University Dissertations, 2011)
Durieux, Jean-François, ‘The Duty to Rescue Refugees’ (2016) 28(2) International Journal of Refugee Law 637
Erlanger, Steven, ‘Rise of Far-Right Party in Denmark Reflects Europe’s Unease’, New York Times (online, 19 June 2015) <https://www.nytimes.com/2015/06/20/world/europe/rise-of-far-right-party-in-denmark-reflects-europes-unease.html>
Esperti, Marta, ‘Rescuing Migrants in the Central Mediterranean: The Emergence of a New Civil Humanitarianism at the Maritime Border’ (2020) 64(4) American Behavioural Scientist 436
European Commission, EU Operations in the Mediterranean Sea (European Commission, 2016) <https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/fact-sheets/docs/20161006/eu_operations_in_the_mediterranean_sea_en.pdf>
European External Action Service, EUNAVFOR Med Operation Sophia: Six Monthly Report (1 January - 31 October) (European External Action Service, 29 November 2016) <https://www.statewatch.org/media/documents/news/2016/dec/eu-council-eunavformed-jan-oct-2016-report-restricted.pdf>
European External Action Service, European Union Naval Force - Mediterranean Operations Sophia (European External Action Service, 15 September 2016) <https://eeas.europa.eu/sites/eeas/files/factsheet_eunavfor_med_en_0.pdf>
Fernandez, Maïté, ‘The EU External Borders Policy and Frontex-Coordinated Operations at Sea: Who Is in Charge? Reflections on Responsibility for Wrongful Acts’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 379
Fink, Melanie, ‘A “Blind Spot” in the Framework of International Responsibility? Third Party Responsibility for Human Rights Violations: The Case of Frontex’ in Thomas Gammeltoft-Hansen and Jens Vedsted-Hansen (eds), Human Rights and the Dark Side of Globalisation (Routledge, 2016) 272
Frontex, Concept of Reinforced Joint Operation Tackling the Migratory Flows towards Italy (Joint Operations Unit Report, Frontex, 28 August 2014) <https://deathbyrescue.org/assets/annexes/2.Frontex_Concept_JO_EPN-Triton_28.08.2014.pdf>
Frontex, Frontex Launches Call for Participation of the Member States in Joint Operation Triton (Press Release, Frontex, 26 September 2014) <https://frontex.europa.eu/media-centre/news-release/frontex-launches-call-for-participation-of-the-eu-member-states-in-joint-operation-triton-b9nupQ>
Frontex, Joint Operation Triton (Italy) (Press Release, Frontex, 10 October 2016) <https://frontex.europa.eu/media-centre/focus/joint-operation-triton-italy--ekKaes>
Ghezelbash, Daniel et al, ‘Securitization of Search and Rescue at Sea: The Response to Boat Migration in the Mediterranean and Offshore Australia’ (2018) 67(2) International and Comparative Law Quarterly 315
Giuffré, Mariagiulia, ‘Access to Asylum at Sea? Non-Refoulement and A Comprehensive Approach to Extraterritorial Human Rights Obligations’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 248
Goodwin-Gill, Guy S, ‘Setting the Scene: Refugees, Asylum Seekers and Migrants at Sea - the Need for a Long-Term, Protection-Centred Vision’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 17
Goodwin-Gill, Guy S, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’ (2011) 23(3) International Journal of Refugee Law 443
Goodwin-Gill, Guy S and Jane McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007)
Greenhill, Kelly M, ‘Open Arms Behind Barred Doors: Fear, Hypocrisy and Policy Schizophrenia in the European Migration Crisis’ (2016) 22(2) European Law Journal 317
Hampshire, James, ‘Europe’s Migration Crisis’ (2015) 6(3) Political Insight 8
Heller, Charles and Lorenzo Pezzani, Death by Rescue: The Lethal Effects of the EU’s Policies of Non-Assistance (Death by Rescue, 18 April 2016) <https://deathbyrescue.org/>
Holehouse, Matthew, ‘EU Chief: Migrant Influx Is “Campaign of Hybrid Warfare” by Neighbours to Force Concessions’, The Telegraph (online, 6 October 2015) <https://www.telegraph.co.uk/news/worldnews/europe/eu/11915798/EU-chief-Migrant-influx-is-campaign-of-hybrid-warfare-by-neighbours-to-force-concessions.html>
‘Imaginary Criminals: Sea-Watch Considers Legal Steps Against Attorney Zuccaro’, Sea-Watch (online, 24 April 2017) <https://sea-watch.org/en/imaginary-criminals-sea-watch-considers-legal-steps-against-attorney-zuccaro/>
International Organization for Migration, ‘IOM: Mediterranean Arrivals Reach 110,699 in 2019; Deaths Reach 1,283; World Deaths Fall’, International Organization for Migration Press Releases (online, 3 January 2020) <https://www.iom.int/news/iom-mediterranean-arrivals-reach-110699-2019-deaths-reach-1283-world-deaths-fall>
Jeandesboz, Julien and Polly Pallister-Wilkins, ‘Crisis, Routine, Consolidation: The Politics of the Mediterranean Migration Crisis’ (2016) 21(2) Mediterranean Politics 316
Kassam, Ashifa, ‘At Least 55 Migrants Died Off North African Coast This Week, Says UN’, The Guardian (online, 20 August 2020) <https://www.theguardian.com/world/2020/aug/19/at-least-55-migrant-fatalities-in-shipwrecks-off-north-african-coast-this-week>
Kim, Seunghwan, ‘Non-Refoulement and Extraterritorial Jurisdiction: State Sovereignty and Migration Controls at Sea in the European Context’ (2017) 30 Leiden Journal of International Law 49
Klug, Anja and Tim Howe, ‘Extraterritorial Interception Measures’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial Immigration Control (Martinus Nijhoff, 2010) 65
Komp, Lisa-Marie, ‘The Duty to Assist Persons in Distress: An Alternative Source of Protection against the Return of Migrants to the High Seas?’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 222
Léonard, Sarah, ‘EU Border Security and Migration into the European Union: FRONTEX and Securitisation through Practice’ (2010) 19(2) European Security 231
Little, Adrian and Nick Vaugh-Williams, ‘Stopping Boats, Saving Lives, Securing Subjects: Humanitarian Borders in Europe and Australia’ (2017) 23(3) European Journal of International Relations 533
Lowe, A Vaughan, ‘The Right of Entry into Maritime Ports in International Law’ (1977) 14 San Diego Law Review 597
Meijers, Herman, The Nationality of Ships (Martinus Nijhoff, 1967)
Metcalfe-Hough, Victoria, The Migration Crisis? Facts, Challenges and Possible Solutions (Briefing, Overseas Development Institute, 20 October 2015) <https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/9913.pdf>
Milanovic, Marko, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford University Press, 2011)
Miller, Sarah, ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention’ (2009) 20(4) European Journal of International Law 1223
Moreno-Lax, Violeta, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’ (2012) 12(3) Human Rights Law Review 574
Moreno-Lax, Violeta, Interdiction of Asylum Seekers at Sea: The Law and (Mal)Practice in Europe and Australia (Policy Brief 4, Kaldor Centre for International Refugee Law, May 2017)
Moreno-Lax, Violeta, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’ (2011) 23 International Journal of Refugee Law 174
Moreno-Lax, Violeta, ‘The EU Humanitarian Border and the Securitization of Human Rights: The “Rescue-through-Interdiction/Rescue-without-Protection” Paradigm’ (2018) 56(1) Journal of Common Market Studies 119
Nessel, Lori A, ‘Externalised Borders and the Invisible Refugee’ (2009) 40 Columbia Human Rights Law Review 625
Nordquist, Myron H et al (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Volume III (Kluwer Law International, 1995)
Nováky, Niklas, ‘The Road to Sophia: Explaining the EU’s Naval Operation in the Mediterranean’ (2018) 17(2) European View 197
O’Brien, Killian S, ‘Refugees on the High Seas: International Refugee Law Solutions to a Law of the Sea Problem’ (2011) 3(2) Goettingen Journal of International Law 715
O’Connell, Daniel P, The International Law of the Sea (Clarendon Press, 1982)
Orange, Richard, ‘Anti-Immigrant Sweden Democrats Now the Biggest Party, According to Poll’, The Telegraph (online, 20 August 2015) <https://www.telegraph.co.uk/news/worldnews/europe/sweden/11814498/Anti-immigrant-Sweden-Democrats-now-the-biggest-party-according-to-poll.html>
Pallis, Mark, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts between Legal Regimes’ (2002) 14(2) International Journal of Refugee Law 329
Pallister-Wilkins, Polly, ‘Humanitarian Rescue/Sovereign Capture and the Policing of Possible Responses to Violent Borders’ (2017) 8(1) Global Policy 19
Papanicolopulu, Irini, ‘A Missing Part of the Law of the Sea Convention: Addressing Issues of State Jurisdiction over Persons at Sea’ in Clive Schofield, Seokwoo Lee and Moon-sang Kwon (eds), The Limits of Maritime Jurisdiction (Martinus Nijhoff, 2014) 387
Park, Jeanne, ‘Europe’s Migration Crisis’, Council on Foreign Relations (New York, online, 23 September 2015) <https://www.cfr.org/backgrounder/europes-migration-crisis>
Patalano, Alessio, ‘NightMare Nostrum? Not Quite’ (2015) 160(3) RUSI Journal 14
Rankin, Jennifer, ‘Bitter EU Summit Exposes Trust Deficit Among Leaders with No End In Sight’, The Guardian (online, 21 July 2020) <https://www.theguardian.com/world/2020/jul/19/bitter-coronavirus-summit-exposes-trust-deficit-among-eu-leaders>
Redelbach, Andreas, ‘Protection of the Right to Life by Law and Other Means’ in Bertrand G Ramcharan (ed), The Right to Life in International Law (Martinus Nijhoff, 1985) 182
Riddervold, Marianne and Ruxandra-Laura Bosilca, Not so Humanitarian After All? Assessing EU Naval Mission Sophia (Working Paper No 5/2017, ARENA Centre for European Studies, 11 April 2017) <https://www.sv.uio.no/arena/english/research/publications/arena-working-papers/2017/wp-5-17.pdf>
Rijpma, Jorrit and Mathias Vermeulen, ‘EUROSUR: Saving Lives or Building Borders?’ (2015) 24(3) European Security 454
Ristik, Jelena, ‘The Right to Asylum and the Principle of Non-Refoulement Under the European Convention on Human Rights’ (2017) 13(28) European Scientific Journal 108
Rittberger, Berthold, Helena Schwarzenbeck and Bernhard Zangl, ‘Where Does the Buck Stop? Explaining Public Responsibility Attributions in Complex International Institutions’ 55(4) Journal of Common Market Studies 909
Rothwell, Donald R and Tim Stephens, The International Law of the Sea (Hart, 2nd ed, 2016)
Safdar, Anealla, ‘Mediterranean Refugee Deaths Drop but Experts Say Risks Remain’, Al Jazeera (online, 31 January 2020) <https://www.aljazeera.com/news/2020/01/mediterranean-refugee-deaths-drop-experts-risks-remain-200130140748919.html>
Scalvini, Marco, ‘Humanitarian Wars and Rejected Refugees’, OpenDemocracy (online, 17 April 2011) <https://www.opendemocracy.net/en/humanitarian-wars-and-rejected-refugees/>
Shearer, Ivan A, ‘Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels’ (1986) 35(2) International and Comparative Law Quarterly 320
Spijkerboer, Thomas, ‘The Human Costs of Border Control’ (2007) 9 European Journal of Migration and Law 127
Spindler, William, ‘Mediterranean Death Toll Soars to All-Time High’, UNHCR Briefing Notes (online, 25 October 2016) <https://www.unhcr.org/news/briefing/2016/10/580f1d044/mediterranean-death-toll-soars-all-timehigh.html>
Tazzioli, Martina, ‘Border Displacements: Challenging the Politics of Rescue between Mare Nostrum and Triton’ (2016) 4(1) Migration Studies 1
The Spectator, ‘The EU’s Deal with Turkey Exposes the Moral Vacuum at Its Heart’, The Spectator (online, 12 March 2016) <https://www.spectator.co.uk/article/turkey-s-blackmail>
Walton, Gregory and Tim Ross, ‘David Cameron Insists Describing Migrants as a “Swarm” Wasn’t Dehumanising’, The Telegraph (online, 15 August 2015) <https://www.telegraph.co.uk/news/politics/david-cameron/11804861/David-Cameron-says-describing-migrants-as-a-swarm-wasnt-dehumanising.html>
Abulaziz, Cabales & Balkandali v United Kingdom (European Commission of Human Rights, Plenary Session, Application No. 15/1983/71/107-109, 24 April 1985)
Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders [1985] OJ L 239/13
Airey v Ireland [1979] ECHR 3; (1979) 2 EHRR 305
Al Saadon & Mufdhi v United Kingdom (European Court of Human Rights, Fourth Section, Application No. 61498/08, 30 June 2009)
Al-Skeini & Others v The United Kingdom, (European Court of Human Rights, Grand Chamber, Application No. 55721/07, 7 July 2011)
Banković & Others v Belgium & Others, (European Court of Human Rights, Grand Chamber, Application No. 52207/99, 12 December 2001)
Bone v France (European Court of Human Rights, Second Section, Application No. 69869/01, 1 March 2005)
Boujlifa v France (2000) 30 EHRR 419
Budayeva & Others v Russia (European Court of Human Rights, First Section, Application Nos. 15339/02, 21166/03, 20058/02, 11673/02 and 15343/02, 20 March 2008)
Case Concerning Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) (2005) 168 ICJ Rep
Charter of Fundamental Rights of the European Union [2007] OJ C 303/1
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4
Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union Military Operation in the Southern Central Mediterranean [2015] OJ L 112/31
Council Decision (EU) 2014/1601 of 22 September 2015 Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece [2015] OJ L 248/80
Council Decision (EU) 2015/1523 of 14 September 2015 Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece [2015] OJ L 239/146
Council Regulation (EC) 2007/2004 of 26 October 2004 Establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2004] OJ L 349/1
Draft Articles on Responsibility of States for Internationally Wrongful Acts, Supplement No. 10 (A/56/10), chp.IV.E.1 (November 2001)
Drozd & Janousek v France & Spain ((European Court of Human Rights, Plenary Session, Application No. 12747/87, 26 June 1992))
European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953)
Hirsi Jamaa & Others v Italy, (European Court of Human Rights, Grand Chamber, Application No 277765/09, 23 February 2012)
Ilasçu & Others v Moldova & Russia (European Court of Human Rights, Grand Chamber, Application No. 48787/99, 8 July 2004)
International Convention for the Safety of Life at Sea, opened for signature 1 November 1974, 1184 UNTS 278 (entered into force 25 May 1980)
International Convention on Maritime Search and Rescue, opened for signature 27 April 1974, 1405 UNTS 119 (entered into force 22 June 1985)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Kemaloğlu v Turkey (European Court of Human Rights, Second Section, Application No. 19986/06, 10 April 2012)
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (2004) 136 ICJ Rep
Mamatkulov & Askarov v Turkey [2005] ECHR 64; (2005) 41 EHRR 25
Medvedyev & Others v France (European Court of Human Rights, Grand Chamber, Application No. 3394/03, 29 March 2010)
MSS v Belgium & Greece (European Court of Human Rights, Grand Chamber, Application No. 30696/09, 21 January 2011)
Öcalan v Turkey (European Court of Human Rights, Grand Chamber, Application No. 46221/99, 12 May 2005)
Öneryildiz v Turkey (European Court of Human Rights, Grand Chamber, Application No. 48989/99, 30 November 2004)
Osman v United Kingdom (European Court of Human Rights, Grand Chamber, Application No. 87/1997/871/1083, 28 October 1998)
Regulation (EU) 656/2014 of 15 May 2014 on Establishing Rules for the Surveillance of the External Sea borders in the Context of Operational Co-operation Co-ordinated by the European Agency for the Management of Operational Co-operation at the External Borders of the Member States of the European Union (2014) 189/93 OJ L
Regulation (EU) 2016/399 of 9 March 2016 on a Union Code on the Rules Governing the Movement of Persons Across Borders [2016] OJ L 77/1
Saint Vincent and the Grenadines v Guinea (Judgment) [1999] ICGJ 336
United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994)
Council of Europe Parliamentary Assembly, Resolution 2305 (2019) Saving Lives in the Mediterranean Sea: The Need for an Urgent Response, 33rd sitting (3 October 2019), <https://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=search&docid=5da07d394&skip=0&query=%22saving%20lives%20in%20the%20mediterranean%20sea%22>
Human Rights Committee, General Comment No 6: Article 6 (Right to Life), 16th sess, UN Doc HR/GEN/1/Rev.1 (30 April 1982)
Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004)
Maritime Safety Committee, Guidelines on the Treatment of Persons Rescued at Sea, 78th sess, IMO Doc MSC 78/26/Add.2 (4 June 2004, adopted 20 May 2004)
UN Comittee Against Torture, UN General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc CAT/C/GC/2 (24 January 2008)
UN High Commissioner for Refugees, Note on International Protection, 52nd sess, UN Doc A/AC.96/951 (13 September 2001)
UN High Commissioner for Refugees, UNCHR’s Position on the Proposal of the European Council Concerning the Treatment of Asylum Application from Citizens of European Member States 1 January 1997 <https://www.refworld.org/docid/3ae6b31d2b.html>
UN High Commissioner for Refugees Executive Committee, Conclusion on Protection Safeguards in Interception Measures No. 97 (LIV), 54th sess, UN Doc A/AC.96/987 (10 October 2003)
International Organization for Migration, ‘Mediterranean’, Missing Migrants: Tracking Deaths Along Migratory Routes (Webpage, 20 July 2020) <https://missingmigrants.iom.int/region/mediterranean>
[1] Kristin Archick, The European Union: Current Challenges and Future Prospects (No R44249, Congressional Research Service, 21 June 2016) <https://www.swsu.ru/sbornik-statey/pdf/R44249.pdf>.
[2] Anealla Safdar, ‘Mediterranean Refugee Deaths Drop but Experts Say Risks Remain’, Al Jazeera (online, 31 January 2020) <https://www.aljazeera.com/news/2020/01/mediterranean-refugee-deaths-drop-experts-risks-remain-200130140748919.html>.
[3] International Organization for Migration, ‘IOM: Mediterranean Arrivals Reach 110,699 in 2019; Deaths Reach 1,283; World Deaths Fall’, International Organization for Migration Press Releases (online, 3 January 2020) <https://www.iom.int/news/iom-mediterranean-arrivals-reach-110699-2019-deaths-reach-1283-world-deaths-fall>.
[4] International Organization for Migration, ‘Mediterranean’, Missing Migrants: Tracking Deaths Along Migratory Routes (Webpage, 20 July 2020) <https://missingmigrants.iom.int/region/mediterranean>.
[5] Violeta Moreno-Lax, Interdiction of Asylum Seekers at Sea: The Law and (Mal)Practice in Europe and Australia (Policy Brief 4, Kaldor Centre for International Refugee Law, May 2017) 2–3; Adrian Little and Nick Vaugh-Williams, ‘Stopping Boats, Saving Lives, Securing Subjects: Humanitarian Borders in Europe and Australia’ (2017) 23(3) European Journal of International Relations 533, 534–5; Sarah Léonard, ‘EU Border Security and Migration into the European Union: FRONTEX and Securitisation through Practice’ (2010) 19(2) European Security 231.
[6] Mariagiulia Giuffré, ‘Access to Asylum at Sea? Non-Refoulement and A Comprehensive Approach to Extraterritorial Human Rights Obligations’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 248, 249–50.
[7] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) preamble (‘Refugee Convention’).
[8] Ibid art 33(1).
[9] Ibid art 42(1).
[10] Ibid art 33(1).
[11] Jean-François Durieux, ‘The Duty to Rescue Refugees’ (2016) 28(2) International Journal of Refugee Law 637, 639.
[12] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 7 (‘ICCPR’); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 3 (‘CAT’); European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) art 3 (‘ECHR’).
[13] Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007) 345–54; Guy S Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’ (2011) 23(3) International Journal of Refugee Law 443, 444.
[14] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994) (‘UNCLOS’).
[15] See, for example, ibid arts 87, 92(1), 98; International Convention on Maritime Search and Rescue, opened for signature 27 April 1974, 1405 UNTS 119 (entered into force 22 June 1985) art 2.1.1 (‘SAR Convention’); see also Violeta Moreno-Lax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’ (2011) 23 International Journal of Refugee Law 174; Richard Barnes, ‘Refugee Law at Sea’ (2004) 53 International and Comparative Law Quarterly 47, 70.
[16] International Convention for the Safety of Life at Sea, opened for signature 1 November 1974, 1184 UNTS 278 (entered into force 25 May 1980) (‘SOLAS Convention’); SAR Convention (n 15).
[17] Eugenio Cusumano, ‘Migrant Rescue as Organized Hypocrisy: EU Maritime Missions Offshore Libya Between Humanitarianism and Border Control’ (2019) 54(1) Cooperation and Conflict 3, 7.
[18] Guy S Goodwin-Gill, ‘Setting the Scene: Refugees, Asylum Seekers and Migrants at Sea - the Need for a Long-Term, Protection-Centred Vision’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 17, 23; Richard Barnes, ‘The International Law of the Sea and Migration Control’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial Immigration Control (Martinus Nijhoff, 2010) 103, 126–7.
[19] Kelly M Greenhill, ‘Open Arms Behind Barred Doors: Fear, Hypocrisy and Policy Schizophrenia in the European Migration Crisis’ (2016) 22(2) European Law Journal 317.
[20] Hirsi Jamaa & Others v Italy, (European Court of Human Rights, Grand Chamber, Application No 277765/09, 23 February 2012) (‘Hirsi Jamaa’).
[21] Seunghwan Kim, ‘Non-Refoulement and Extraterritorial Jurisdiction: State Sovereignty and Migration Controls at Sea in the European Context’ (2017) 30 Leiden Journal of International Law 49, 58–61; Jasmine Coppens, ‘Interception of Migrant Boats at Sea’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 199, 219; Azedeh Dastyari and Daniel Ghezelbash, ‘Asylum at Sea: The Legality of Shipboard Refugee Status Determination Procedures’ (2020) 32(1) International Journal of Refugee Law 1, 6–7.
[22] Dastyari and Ghezelbash (n 21) 2–3; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (2004) 136 ICJ Rep (‘Palestinian Wall Case’).
[23] Goodwin-Gill and McAdam (n 13) 385; Goodwin-Gill (n 13) 452–3; Goodwin-Gill (n 18) 23, 27; Draft Articles on Responsibility of States for Internationally Wrongful Acts, Supplement No. 10 (A/56/10), chp.IV.E.1 (November 2001) art 4, 6 (‘Draft Articles on State Responsibility’).
[24] Lisa-Marie Komp, ‘The Duty to Assist Persons in Distress: An Alternative Source of Protection against the Return of Migrants to the High Seas?’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 222, 231.
[25] Ibid 236; ECHR (n 12) art 1; Saint Vincent and the Grenadines v Guinea (Judgment) [1999] ICGJ 336, [156] (‘MV Saiga (No 2)’).
[26] Amnesty International, Italy/Malta: Obligation to Safeguard Lives and Safety of Migrants and Asylum Seekers (Public Statement, Amnesty International, 7 May 2009) <https://www.amnesty.org/download/Documents/48000/eur300072009en.pdf>.
[27] Jeanne Park, ‘Europe’s Migration Crisis’, Council on Foreign Relations (New York, online, 23 September 2015) <https://www.cfr.org/backgrounder/europes-migration-crisis>.
[28] Ibid; MSS v Belgium & Greece (European Court of Human Rights, Grand Chamber, Application No. 30696/09, 21 January 2011) [223].
[29] James Hampshire, ‘Europe’s Migration Crisis’ (2015) 6(3) Political Insight 8, 8.
[30] Ibid 9.
[31] Park (n 27).
[32] Greenhill (n 19).
[33] Marta Esperti, ‘Rescuing Migrants in the Central Mediterranean: The Emergence of a New Civil Humanitarianism at the Maritime Border’ (2020) 64(4) American Behavioural Scientist 436, 441.
[34] Alessio Patalano, ‘NightMare Nostrum? Not Quite’ (2015) 160(3) RUSI Journal 14, 17.
[35] Cusumano (n 17) 4; Berthold Rittberger, Helena Schwarzenbeck and Bernhard Zangl, ‘Where Does the Buck Stop? Explaining Public Responsibility Attributions in Complex International Institutions’ 55(4) Journal of Common Market Studies 909.
[36] Jorrit Rijpma and Mathias Vermeulen, ‘EUROSUR: Saving Lives or Building Borders?’ (2015) 24(3) European Security 454, 467.
[37] Victoria Metcalfe-Hough, The Migration Crisis? Facts, Challenges and Possible Solutions (Briefing, Overseas Development Institute, 20 October 2015) 2 <https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/9913.pdf>.
[38] Frontex, Concept of Reinforced Joint Operation Tackling the Migratory Flows towards Italy (Joint Operations Unit Report, Frontex, 28 August 2014) 6 <https://deathbyrescue.org/assets/annexes/2.Frontex_Concept_JO_EPN-Triton_28.08.2014.pdf>.
[39] Sergio Carrera et al, The European Border and Coast Guard: Addressing Migration and Asylum Challenges in the Mediterranean? (Task Force Report, Centre for European Policy Studies, 1 February 2017); Marianne Riddervold and Ruxandra-Laura Bosilca, Not so Humanitarian After All? Assessing EU Naval Mission Sophia (Working Paper No 5/2017, ARENA Centre for European Studies, 11 April 2017) <https://www.sv.uio.no/arena/english/research/publications/arena-working-papers/2017/wp-5-17.pdf>.
[40] Cusumano (n 17) 9.
[41] Ibid 4.
[42] Marco Scalvini, ‘Humanitarian Wars and Rejected Refugees’, OpenDemocracy (online, 17 April 2011) <https://www.opendemocracy.net/en/humanitarian-wars-and-rejected-refugees/>.
[43] Council Decision (EU) 2015/1523 of 14 September 2015 Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece [2015] OJ L 239/146; Council Decision (EU) 2014/1601 of 22 September 2015 Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece [2015] OJ L 248/80.
[44] Greenhill (n 19) 324.
[45] Hampshire (n 29) 10.
[46] Steven Erlanger, ‘Rise of Far-Right Party in Denmark Reflects Europe’s Unease’, New York Times (online, 19 June 2015) <https://www.nytimes.com/2015/06/20/world/europe/rise-of-far-right-party-in-denmark-reflects-europes-unease.html>; Gregory Walton and Tim Ross, ‘David Cameron Insists Describing Migrants as a “Swarm” Wasn’t Dehumanising’, The Telegraph (online, 15 August 2015) <https://www.telegraph.co.uk/news/politics/david-cameron/11804861/David-Cameron-says-describing-migrants-as-a-swarm-wasnt-dehumanising.html>; Agence France-Presse, ‘Refugees “Look like an Army”, Says Hungarian PM Viktor Orbán’, The Guardian (online, 23 October 2015) <https://www.theguardian.com/world/2015/oct/23/refugees-look-like-an-army-says-hungarian-pm-viktor-orban>; Richard Orange, ‘Anti-Immigrant Sweden Democrats Now the Biggest Party, According to Poll’, The Telegraph (online, 20 August 2015) <https://www.telegraph.co.uk/news/worldnews/europe/sweden/11814498/Anti-immigrant-Sweden-Democrats-now-the-biggest-party-according-to-poll.html>.
[47] Matthew Holehouse, ‘EU Chief: Migrant Influx Is “Campaign of Hybrid Warfare” by Neighbours to Force Concessions’, The Telegraph (online, 6 October 2015) <https://www.telegraph.co.uk/news/worldnews/europe/eu/11915798/EU-chief-Migrant-influx-is-campaign-of-hybrid-warfare-by-neighbours-to-force-concessions.html>.
[48] Park (n 27); Greenhill (n 19) 326.
[49] Livia Benková, ‘Europe’s Response to the Migration Crisis’ (2017) 2017(3) Fokus: Austria Institut für Europa und Sicherheitspolitik 1, 2.
[50] International Organization for Migration (n 4).
[51] BBC, ‘Migrant Crossings: Use of Navy Ships to Stop Boats “Dangerous”’, BBC News (online, 10 August 2020) <https://www.bbc.com/news/uk-england-53719575>.
[52] Council of the European Union, A Secure Europe in a Better World: European Security Strategy (12 December 2003) https://www.consilium.europa.eu/media/30823/qc7809568enc.pdf, 4; Council of the European Union, Internal Security Strategy for the European Union: Towards a European Security Model (26 March 2010) 7 <https://www.consilium.europa.eu/media/30753/qc3010313enc.pdf>.
[53] Niklas Nováky, ‘The Road to Sophia: Explaining the EU’s Naval Operation in the Mediterranean’ (2018) 17(2) European View 197, 199.
[54] The Spectator, ‘The EU’s Deal with Turkey Exposes the Moral Vacuum at Its Heart’, The Spectator (online, 12 March 2016) <https://www.spectator.co.uk/article/turkey-s-blackmail>.
[55] Ruben Andersson, ‘Europe’s “Failed Fight” Against Irregular Migration: Ethnographic Notes on a Counterproductive Industry’ (2016) 42(7) Journal of Ethnic and Migration Studies 1055; Polly Pallister-Wilkins, ‘Humanitarian Rescue/Sovereign Capture and the Policing of Possible Responses to Violent Borders’ (2017) 8(1) Global Policy 19; Martina Tazzioli, ‘Border Displacements: Challenging the Politics of Rescue between Mare Nostrum and Triton’ (2016) 4(1) Migration Studies 1.
[56] Refugee Convention (n 7) art 33(1); CAT (n 12) art 3; ICCPR (n 12) arts 6, 7; ECHR (n 12) art 3; Goodwin-Gill (n 18) 23.
[57] UN High Commissioner for Refugees, Note on International Protection, 52nd sess, UN Doc A/AC.96/951 (13 September 2001).
[58] Goodwin-Gill (n 13) 444–45.
[59] UN High Commissioner for Refugees, UNCHR’s Position on the Proposal of the European Council Concerning the Treatment of Asylum Application from Citizens of European Member States 1 January 1997, [4] <https://www.refworld.org/docid/3ae6b31d2b.html>.
[60] Jelena Ristik, ‘The Right to Asylum and the Principle of Non-Refoulement Under the European Convention on Human Rights’ (2017) 13(28) European Scientific Journal 108.
[61] Charter of Fundamental Rights of the European Union [2007] OJ C 303/1, art 19(2); Hirsi Jamaa (n 20) [135].
[62] Regulation (EU) 656/2014 of 15 May 2014 on Establishing Rules for the Surveillance of the External Sea borders in the Context of Operational Co-operation Co-ordinated by the European Agency for the Management of Operational Co-operation at the External Borders of the Member States of the European Union (2014) 189/93 OJ L [10] (‘Maritime Surveillance Regulation’).
[63] Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union Military Operation in the Southern Central Mediterranean [2015] OJ L 112/31, [6].
[64] Goodwin-Gill and McAdam (n 13) 370.
[65] Ibid.
[66] Hemme Battjes, ‘Territoriality and Asylum Law: The Use of Territorial Jurisdiction to Circumvent Legal Obligations and Human Rights Law Responses’ in Martin Kuijer and Wouten Werner (eds), Netherlands Yearbook of International Law 2016 (Asser Press, 2017) 263, 275.
[67] Goodwin-Gill (n 13).
[68] UNCLOS (n 14) art 2.
[69] Ibid arts 92, 94.UNCLOS art 92, 94
[70] Coppens (n 21) 200.
[71] UN High Commissioner for Refugees Executive Committee, Conclusion on Protection Safeguards in Interception Measures No. 97 (LIV), 54th sess, UN Doc A/AC.96/987 (10 October 2003); Anja Klug and Tim Howe, ‘Extraterritorial Interception Measures’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial Immigration Control (Martinus Nijhoff, 2010) 65, 93.
[72] UNCLOS (n 14) art 92.
[73] Dastyari and Ghezelbash (n 21) 5.
[74] Coppens (n 21) 204.
[75] Ivan A Shearer, ‘Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels’ (1986) 35(2) International and Comparative Law Quarterly 320, 330.
[76] But see Maritime Surveillance Regulation (n 62).
[77] UNCLOS (n 14) art 58, 94(2)(b).
[78] Coppens (n 21) 210–11.
[79] UNCLOS (n 14) art 110(1)(b).
[80] Ibid art 110(1)(d).
[81] Herman Meijers, The Nationality of Ships (Martinus Nijhoff, 1967) 323.
[82] Irini Papanicolopulu, ‘A Missing Part of the Law of the Sea Convention: Addressing Issues of State Jurisdiction over Persons at Sea’ in Clive Schofield, Seokwoo Lee and Moon-sang Kwon (eds), The Limits of Maritime Jurisdiction (Martinus Nijhoff, 2014) 387, 402–3.
[83] Daniel Ghezelbash et al, ‘Securitization of Search and Rescue at Sea: The Response to Boat Migration in the Mediterranean and Offshore Australia’ (2018) 67(2) International and Comparative Law Quarterly 315, 330–31.
[84] Abulaziz, Cabales & Balkandali v United Kingdom (European Commission of Human Rights, Plenary Session, Application No. 15/1983/71/107-109, 24 April 1985) [65]; Boujlifa v France (2000) 30 EHRR 419, [42].
[85] Benková (n 49) 2.
[86] Council Regulation (EC) 2007/2004 of 26 October 2004 Establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2004] OJ L 349/1, [5].
[87] Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders [1985] OJ L 239/13.
[88] Airey v Ireland [1979] ECHR 3; (1979) 2 EHRR 305, [26]; Mamatkulov & Askarov v Turkey [2005] ECHR 64; (2005) 41 EHRR 25, [121]; Hirsi Jamaa (n 20) [176].
[89] Battjes (n 66) 265.
[90] Sarah Miller, ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention’ (2009) 20(4) European Journal of International Law 1223, 1232–4.
[91] Banković & Others v Belgium & Others, (European Court of Human Rights, Grand Chamber, Application No. 52207/99, 12 December 2001) (‘Banković’).
[92] Ibid [67].
[93] Öcalan v Turkey (European Court of Human Rights, Grand Chamber, Application No. 46221/99, 12 May 2005).
[94] Al Saadon & Mufdhi v United Kingdom (European Court of Human Rights, Fourth Section, Application No. 61498/08, 30 June 2009).
[95] Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford University Press, 2011) 162; Kim (n 21) 56.
[96] Medvedyev & Others v France (European Court of Human Rights, Grand Chamber, Application No. 3394/03, 29 March 2010) [67] (‘Medvedyev’).
[97] Al-Skeini & Others v The United Kingdom, (European Court of Human Rights, Grand Chamber, Application No. 55721/07, 7 July 2011) (‘Al-Skeini’).
[98] Ibid [136].
[99] Ibid [149]; Milanovic (n 95) 130.
[100] Kim (n 21) 58.
[101] Hirsi Jamaa (n 20) [9].
[102] Esperti (n 33) 440.
[103] Hirsi Jamaa (n 20) [11]-[12].
[104] Ibid [36].
[105] Ibid [38].
[106] Ibid [3].
[107] Ibid [178]; see Medvedyev (n 96) [81].
[108] Ilasçu & Others v Moldova & Russia (European Court of Human Rights, Grand Chamber, Application No. 48787/99, 8 July 2004) [311].
[109] Banković (n 91) [61]; Ilasçu & Others v Moldova & Russia (n 108) [312].
[110] Drozd & Janousek v France & Spain ((European Court of Human Rights, Plenary Session, Application No. 12747/87, 26 June 1992)) [91]; Banković (n 91) [67]; Ilasçu & Others v Moldova & Russia (n 108) [314].
[111] Al-Skeini (n 97) [132], [136]; Medvedyev (n 96) [67].
[112] Hirsi Jamaa (n 20) [74].
[113] Kim (n 21) 61.
[114] Hirsi Jamaa (n 20) [76].
[115] Ibid [81].
[116] Kim (n 21) 60–1.
[117] Battjes (n 66) 275.
[118] Palestinian Wall Case (n 22); Case Concerning Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) (2005) 168 ICJ Rep (‘Armed Activities in the Congo’); Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004).
[119] Maarten Den Hejier, Europe and Extraterritorial Asylum (Leiden University Dissertations, 2011) 57.
[120] UN Comittee Against Torture, UN General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc CAT/C/GC/2 (24 January 2008), [7].
[121] Goodwin-Gill (n 13) 444.
[122] Hirsi Jamaa (n 20) [179].
[123] See Medvedyev (n 96).
[124] Battjes (n 66) 280.
[125] Paula García Andrade, ‘Extraterritorial Strategies to Tackle Irregular Immigration by Sea: A Spanish Perspective’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial Migration Control (Martinus Nijhoff, 2010) 305, 320.
[126] Kim (n 21) 63.
[127] Esperti (n 33) 441.
[128] Tugba Basaran, ‘The Saved and the Drowned: Governing Indifference in the Name of Security’ (2015) 46(3) Security Dialogue 205; Paolo Cuttitta, ‘Repoliticisation through Search and Rescue? Humanitarian NGOs and Migration Management in the Central Mediterranean’ (2017) 23(3) Geopolitics 632; ‘Imaginary Criminals: Sea-Watch Considers Legal Steps Against Attorney Zuccaro’, Sea-Watch (online, 24 April 2017) <https://sea-watch.org/en/imaginary-criminals-sea-watch-considers-legal-steps-against-attorney-zuccaro/>.
[129] Goodwin-Gill (n 18) 23.
[130] Shearer (n 75) 127; Barnes (n 18) 126–7.
[131] Komp (n 24) 228.
[132] William Spindler, ‘Mediterranean Death Toll Soars to All-Time High’, UNHCR Briefing Notes (online, 25 October 2016) <https://www.unhcr.org/news/briefing/2016/10/580f1d044/mediterranean-death-toll-soars-all-timehigh.html>; International Organization for Migration (n 3).
[133] Cusumano (n 17) 10.
[134] Ibid 13.
[135] Ibid.
[136] Andersson (n 55); Eugenio Cusumano, ‘Straightjacketing Migrant Rescuers? The Code of Conduct on Maritime NGOs’ (2017) 24(1) Mediterranean Politics 106; Charles Heller and Lorenzo Pezzani, Death by Rescue: The Lethal Effects of the EU’s Policies of Non-Assistance (Death by Rescue, 18 April 2016) <https://deathbyrescue.org/>; European External Action Service, EUNAVFOR Med Operation Sophia: Six Monthly Report (1 January - 31 October) (European External Action Service, 29 November 2016) 7 <https://www.statewatch.org/media/documents/news/2016/dec/eu-council-eunavformed-jan-oct-2016-report-restricted.pdf>.
[137] Myron H Nordquist et al (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Volume III (Kluwer Law International, 1995) 171.
[138] Robin R Churchill and A Vaughan Lowe, The Law of the Sea (Manchester University Press, 3rd ed, 1999) 7–12; Donald R Rothwell and Tim Stephens, The International Law of the Sea (Hart, 2nd ed, 2016) 22–3; Daniel P O’Connell, The International Law of the Sea (Clarendon Press, 1982) 813–4; Goodwin-Gill and McAdam (n 13) 278; Mark Pallis, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts between Legal Regimes’ (2002) 14(2) International Journal of Refugee Law 329, 333–4.
[139] SAR Convention (n 15) Annex art 2.3.3.
[140] Ibid Annex arts 2.1, 2.4, 2.5.
[141] Moreno-Lax, ‘Interdiction of Asylum Seekers at Sea: The Law and (Mal)Practice in Europe and Australia’ (n 5) 6.
[142] Ghezelbash et al (n 83) 318.
[143] SAR Convention (n 15) Annex arts 2.1.1, 2.1.4.
[144] UNCLOS (n 14) art 98(2).
[145] SOLAS Convention (n 16) art 2.
[146] Ibid Annex ch 5 reg 15(a); Pallis (n 138) 335.
[147] SAR Convention (n 15) Annex art 2.1.10.
[148] UNCLOS (n 14) art 29.
[149] Frontex, Joint Operation Triton (Italy) (Press Release, Frontex, 10 October 2016) <https://frontex.europa.eu/media-centre/focus/joint-operation-triton-italy--ekKaes>.
[150] European Commission, EU Operations in the Mediterranean Sea (European Commission, 2016) 1 <https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/securing-eu-borders/fact-sheets/docs/20161006/eu_operations_in_the_mediterranean_sea_en.pdf>.
[151] European External Action Service, European Union Naval Force - Mediterranean Operations Sophia (European External Action Service, 15 September 2016) <https://eeas.europa.eu/sites/eeas/files/factsheet_eunavfor_med_en_0.pdf>.
[152] Cusumano (n 17) 10.
[153] Ibid 13.
[154] Council of Europe Parliamentary Assembly, Resolution 2305 (2019) Saving Lives in the Mediterranean Sea: The Need for an Urgent Response, 33rd sitting (3 October 2019), [4.1] <https://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=search&docid=5da07d394&skip=0&query=%22saving%20lives%20in%20the%20mediterranean%20sea%22>.
[155] Ibid [4.6].
[156] SAR Convention (n 15) Annex art 1.3.13.
[157] Komp (n 24) 232.
[158] Cusumano (n 17) 10, 12; Zach Campbell, ‘Abandoned at Sea: Europe Keeps Its Rescue Ships Far From the Coast of Libya - Where Thousands of Refugees Have Drowned’, The Intercept (online, 2 April 2017) <https://theintercept.com/2017/04/01/europe-keeps-its-rescue-ships-far-from-the-coast-of-libya-where-thousands-of-refugees-have-drowned/>; Heller and Pezzani (n 136).
[159] Human Rights Committee, General Comment No 6: Article 6 (Right to Life), 16th sess, UN Doc HR/GEN/1/Rev.1 (30 April 1982), [5]; Andreas Redelbach, ‘Protection of the Right to Life by Law and Other Means’ in Bertrand G Ramcharan (ed), The Right to Life in International Law (Martinus Nijhoff, 1985) 182, 185; Thomas Spijkerboer, ‘The Human Costs of Border Control’ (2007) 9 European Journal of Migration and Law 127, 138.
[160] Komp (n 24) 235; A Vaughan Lowe, ‘The Right of Entry into Maritime Ports in International Law’ (1977) 14 San Diego Law Review 597, 610; Nordquist et al (n 137) 171; Aldo Chircop, ‘The Customary Law of Refuge for Ships in Distress’ in Aldo Chircop and Olof Linden (eds), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom (Martinus Nijhoff, 2006) 161, 222.
[161] Osman v United Kingdom (European Court of Human Rights, Grand Chamber, Application No. 87/1997/871/1083, 28 October 1998) [116].
[162] Öneryildiz v Turkey (European Court of Human Rights, Grand Chamber, Application No. 48989/99, 30 November 2004) [71].
[163] Budayeva & Others v Russia (European Court of Human Rights, First Section, Application Nos. 15339/02, 21166/03, 20058/02, 11673/02 and 15343/02, 20 March 2008).
[164] Komp (n 24) 241; Kemaloğlu v Turkey (European Court of Human Rights, Second Section, Application No. 19986/06, 10 April 2012).
[165] Bone v France (European Court of Human Rights, Second Section, Application No. 69869/01, 1 March 2005) [8].
[166] Komp (n 24) 237.
[167] Ashifa Kassam, ‘At Least 55 Migrants Died Off North African Coast This Week, Says UN’, The Guardian (online, 20 August 2020) <https://www.theguardian.com/world/2020/aug/19/at-least-55-migrant-fatalities-in-shipwrecks-off-north-african-coast-this-week>.
[168] Maritime Safety Committee, Guidelines on the Treatment of Persons Rescued at Sea, 78th sess, IMO Doc MSC 78/26/Add.2 (4 June 2004, adopted 20 May 2004), [6.12]-[6.18].
[169] Killian S O’Brien, ‘Refugees on the High Seas: International Refugee Law Solutions to a Law of the Sea Problem’ (2011) 3(2) Goettingen Journal of International Law 715, 723–5; Jasmine Coppens and Edouard Somers, ‘Towards New Rules on Disembarkation of Persons Rescued at Sea?’ (2010) 25 International Journal of Marine and Coastal Law 377.
[170] Dastyari and Ghezelbash (n 21); Moreno-Lax, ‘Interdiction of Asylum Seekers at Sea: The Law and (Mal)Practice in Europe and Australia’ (n 5) 11.
[171] Violeta Moreno-Lax, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’ (2012) 12(3) Human Rights Law Review 574.
[172] Ghezelbash et al (n 83) 316.
[173] Ibid 318.
[174] Violeta Moreno-Lax, ‘The EU Humanitarian Border and the Securitization of Human Rights: The “Rescue-through-Interdiction/Rescue-without-Protection” Paradigm’ (2018) 56(1) Journal of Common Market Studies 119.
[175] Maritime Surveillance Regulation (n 62) recital 1; Regulation (EU) 2016/399 of 9 March 2016 on a Union Code on the Rules Governing the Movement of Persons Across Borders [2016] OJ L 77/1, art 13.
[176] Frontex, Frontex Launches Call for Participation of the Member States in Joint Operation Triton (Press Release, Frontex, 26 September 2014) <https://frontex.europa.eu/media-centre/news-release/frontex-launches-call-for-participation-of-the-eu-member-states-in-joint-operation-triton-b9nupQ>.
[177] Maïté Fernandez, ‘The EU External Borders Policy and Frontex-Coordinated Operations at Sea: Who Is in Charge? Reflections on Responsibility for Wrongful Acts’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 379, 381; Melanie Fink, ‘A “Blind Spot” in the Framework of International Responsibility? Third Party Responsibility for Human Rights Violations: The Case of Frontex’ in Thomas Gammeltoft-Hansen and Jens Vedsted-Hansen (eds), Human Rights and the Dark Side of Globalisation (Routledge, 2016) 272.
[178] Jennifer Rankin, ‘Bitter EU Summit Exposes Trust Deficit Among Leaders with No End In Sight’, The Guardian (online, 21 July 2020) <https://www.theguardian.com/world/2020/jul/19/bitter-coronavirus-summit-exposes-trust-deficit-among-eu-leaders>.
[179] Greenhill (n 19) 325, 327.
[180] Ibid 324.
[181] Ibid.
[182] Lori A Nessel, ‘Externalised Borders and the Invisible Refugee’ (2009) 40 Columbia Human Rights Law Review 625, 655.
[183] Ghezelbash et al (n 83) 331; Barry Buzan, Ole Waever and Jaap de Wilde, Security: A New Framework for Analysis (Lynne Reiner, 1998) 32–3.
[184] Goodwin-Gill (n 18) 17; Julien Jeandesboz and Polly Pallister-Wilkins, ‘Crisis, Routine, Consolidation: The Politics of the Mediterranean Migration Crisis’ (2016) 21(2) Mediterranean Politics 316.
[185] Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4, 22; MV Saiga (No 2) (n 25) [155].
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