The Principle ofNon-RefoulementAnd the De-Territorialization of Border Control at Sea

Abstract

AbstractDestination states of irregular migration aim to prevent arrivals by controlling their borders outside their territory, specifically on the high seas. This practice may best be described as the de-territorialization of border control at sea. The de-territorialization impacts the applicable legal framework, in particular the safeguards to which individuals submitted to the control activities are entitled. This article posits that the principle ofnon-refoulementis a fundamental yardstick for the de-territorialization of border control and applies wherever competent state authorities perform border control measures. The argument develops in four steps. After outlining the content of the principle ofnon-refoulement, this article defines maritime borders and elucidates their functional nature. It then outlines how the principle ofnon-refoulementapplies at sea and translates into a ‘principle of non-rejection at the maritime frontier’. The article finally highlights the principle's legal and practical consequences in the context of de-territorialized border control.