Border Controls at Sea: Requirements under International Human Rights and Refugee Law

Abstract

In 2004, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union was established. The Agency supports member states in coordinating their border controls. Border controls at sea have, therefore, received increasing attention. Coordinated by FRONTEX, member states carry out border controls not only in their territorial waters, but also on the High Seas and within the territorial waters of third countries. One must assume that at least some of the people on board intercepted vessels are persons in need of international protection. However, some European governments have argued that the principle of non-refoulement does not apply exterritorially. This article will challenge this approach. First, it argues that the principle of non-refoulement, as laid down in the UN Convention Relating to the Status of Refugees, the European Convention on Human Rights and other international treaties relating to refugee and immigration law does apply beyond the territory of the signatory states. Secondly, it argues why non-refoulement, as a principle of refugee and fundamental rights legislation within European primary and secondary law, does apply beyond the territory of the contracting states. Thirdly, regarding the treatment of protection seekers and migrants at sea, it examines the obligations of border guard authorities to act under maritime, human rights and refugee law and when there is a legal failure to act. Finally, the article examines whether EU secondary law, as well as Border Control Practice, are consistent with these obligations.