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Anna Börger - State responsibility in migration control cooperation


Judge Pinto de Albuquerque wrote in his separate opinion in Hirsi that “the ultimate question in this case is how Europe should recognise that refugees have ‘the right to have rights’”[1]. This is a question that not only the European Court of Human Rights had to answer in this case but a question that all developed states need to answer in the globalised world. It is a question that goes to the core of the issue of entitlement to human rights. One could argue that since there is no right to enter a foreign state in international law, this remains merely a philosophical question. Nevertheless, the concept of state responsibility and extraterritorial jurisdiction could provide a basis for an argument that certain restrictions apply when internationally cooperating in migration controls.

Refugee rights were designed to apply to situations in which the migrant has already entered the state of his or her final destination. During the last 20 years, developed states such as the EU member states but also Australia and the USA have resorted to cooperating with transit states or states of origin in order to prevent migrants from reaching or aiming to reach their shores in the first place. This cooperation takes different forms, for instance in the provision of equipment and training as well as intelligence technology to transit states or states of origin. Furthermore, so called mobility partnerships are concluded promising legal migration paths in exchange for imposing contractual obligations in migration control. Lastly, states may also cooperate in joint operations particularly at sea. These forms of cooperation are the research subject of the study. They “significantly challenge the existing refugee and human rights protection regime, still largely tied to notions of territory and single state responsibility”[2].

The first part of the thesis discusses whether and to what extent European states maintain legal responsibility for human rights violations occurring in transit states or states of origin in the context of migration controls implemented with the support of European states. The connection between state responsibility under Art. 16 of the ILC Articles of State Responsibility (aiding and assisting) and jurisdiction under the European Convention of Human Rights is researched and an argument is formed that jurisdiction could be exercised when the requirements of Art. 16 ASR are met. Further attention is then paid to the role of the EU in externalising migration control to assess the responsibility of the member states for these actions in the light of complicity. Moreover, good faith compliance with the Geneva Convention may pose a duty on the states when cooperating with third states to ensure that standards such as access to an asylum procedure and non-refoulement to a fourth country are met. The second part sheds light on the Australian and US-American measures of extraterritorialisation in order to take a comparative view. In the third part of the thesis, standards will be established for migration cooperation agreements with regard to the transit states and states of origin.

[1] Hirsi Jamaa and others v Italy App No 27765/09 (ECHR 23 February 2012), Separate Opinion, p. 59.

[2] Tan, Nikolas Feith, State Responsibility for International Cooperation on Migration Control: the Case of Australia, Oxford Monitor of Forced Migration, Vol. 5, 2nd issue, 2015, 8 – 19, 8.