Closing Ports of Safety: A Legitimate Strategy of Migration Control?

Abstract

In the past decades, the European Union and its member states have increasingly relied on externalization and non-arrival strategies for migration control. One of the latest developments is the decision by Malta and Italy to unilaterally close their ports to vessels carrying migrants rescued at sea. The article examines the conformity of such practices with the international law of the sea and focuses especially on the customary port of safety principle. It also addresses the applicability of the European Convention on Human Rights in cases where the rejected vessels have not entered the territory of a member state. The paper provides a novel approach for the establishment of the European Court of Human Rights’ jurisdiction in such cases of extraterritorial migration control, arguing that the jurisdiction could be founded on the imputable-public-power-test. Based on the analysis of potential violations of rights guaranteed by the Convention and its Protocols, the respective practices may, depending on the individual cases, violate the non-refoulement principle and/or the prohibition of collective expulsion.