Inmigración, Derechos Humanos y Modelos Europeo de fronteras Propuestas conceptuales sobre "extraterritorialidad", "desterritorialidad" y "externalización" de controles y flujos migratorios

Abstract

The migratory flows and the refugee crisis in Europe since 2015 have motivated a growing concern about the respect of human rights and European values ​​in the actions of the EU and the Member States when confronting controls of access to European territory in the external borders. This work analyzes how borders are problematic places for the defense, application and protection of human rights of foreigners, causing what we call the ‘fragility’ of human rights in the EU's external air, land and maritime borders. We are witnessing a change in the very concept of border in this post-globalization era, in which certain functions are offshored and systematically placed outside a state’s territory and checkpoints. However, territorial and extraterritorial actions must be differentiated from those occurring as part of external actions in or with third states for the purposes of migration policy and the control of migration flows. The reality is that a new border space south and east of the Mediterranean has been configured for migratory flows, which needs a new policy of external borders for these areas. Therefore, we must reflect on new frontier spaces, with new concepts and approaches to the border that provide other parameters of action towards migratory flows and external controls. On the other hand, the protection of human rights by European States beyond the external borders is treated to determine to what extent the control functions that are deployed outside the territory affect the human rights of migrants. For this, we differentiate between situations of Outsourcing or Externalisation, where those that act are third States; and situations with Extraterritorial action of migration controls where agents of European States intervene. Both pose problems of protection of human rights in migration controls outside the terrestrial or the maritime territory of the Member States of the EU; we conceive them as deterritorialized functions of border control. And both situations must have in our opinion differentiated mechanisms for monitoring, control and supervision of respect for human rights in the functions of migration control. Respect of human rights of foreigners in border controls is a vital issue of the identity, values ​​and even the survival of the European integration.