Another Brick in the Wall: Carrier Sanctions and the Privatization of Immigration Control

Abstract

Under carrier sanction legislation, carrier personnel are obliged to control migrants’ documentation at the point of embarkation, and to deny boarding to undocumented migrants. In this respect, private carrier personnel become a first instance immigration control, having to deal not only with migrants, but also with asylum seekers who may be in need of international protection. In border control situations, the refoulement of refugees by state agents would violate the state’s non-refoulement obligation. Carrier sanctions pose two particular difficulties for the establishment of state responsibility: first, the potential rejection of asylum seekers at the point of embarkation is executed by non-state actors, whose conduct is only under certain circumstances attributable to the state. Second, while states’ obligations to protect human rights apply to persons under their jurisdiction, embarkation control takes place on the territory of another state and, therefore, is arguably outside the controlling state’s jurisdiction. After providing a brief history of the emergence of carrier sanctions under international law, this article finds that the conduct of carrier personnel – when acting in accordance with carrier sanction legislation – is attributable to the state. Moreover, prohibiting an asylum seeker to board a carrier practically denies the person the right to seek asylum, and may amount to a violation of the principle of non-refoulement. Finally, it is found that state jurisdiction is currently interpreted restrictively and does not include the rejection of asylum seekers on another state’s territory. However, it is argued that human rights bodies should enhance the scope of state jurisdiction in cases where states do abroad what they are prohibited from doing at home.