Extraterritorial Immigration Control (Immigration and Asylum Law and Policy in Europe)

Extraterritorial Immigration Control Immigration and Asylum Law and Policy in Europe VOLUME 21 Editors Elspeth Guil...

Author: Bernard Ryan | Valsamis Mitsilegas

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Extraterritorial Immigration Control

Immigration and Asylum Law and Policy in Europe VOLUME 21

Editors

Elspeth Guild Kingsley Napley Solicitors, London, Centre for Migration Law, Radboud University Nijmegen

Jan Niessen Migration Policy Group, Brussels

The series is a venue for books on European immigration and asylum law and policies where academics, policy makers, law practitioners and others look to find detailed analysis of this dynamic field. Works in the series will start from a European perspective. The increased co-operation within the European Union and the Council of Europe on matters related to immigration and asylum requires the publication of theoretical and empirical research. The series will contribute to well-informed policy debates by analyzing and interpreting the evolving European legislation and its effects on national law and policies. The series brings together the various stakeholders in these policy debates: the legal profession, researchers, employers, trade unions, human rights and other civil society organizations.

Extraterritorial Immigration Control Legal Challenges

Edited by

Bernard Ryan Valsamis Mitsilegas

LEIDEN • BOSTON 2010

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Extraterritorial immigration control : legal challenges / edited by Bernard Ryan, Valsamis Mitsilegas. p. cm. -- (Immigration and asylum law and policy in Europe ; v. 21) Includes bibliographical references and index. ISBN 978-90-04-17233-3 (hardback : alk. paper) 1. Emigration and immigration law. 2. Maritime law. 3. Exterritoriality. 4. Emigration and immigration law--Europe. 5. Maritime law--Europe. 6. International and municipal law--Europe. I. Ryan, Bernard, 1966- II. Mitsilegas, Valsamis, 1971K3275.E97 2000 342.08’2--dc22 2010005218

ISSN 1568-2749 ISBN 978 90 04 17233 3 Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

Contents Preface............................................................................................................ vii List of Contributors ........................................................................................ ix Part I

Overviews

Extraterritorial Immigration Control: What Role for Legal Guarantees? ...................................................................................................... 3 Bernard Ryan Extraterritorial Immigration Control in the 21st Century: The Individual and the State Transformed ...................................................... 39 Valsamis Mitsilegas Part II

International Law Aspects

The Concept of State Jurisdiction and the Applicability of the Non-refoulement Principle to Extraterritorial Interception Measures................ 69 Anja Klug and Tim Howe The International Law of the Sea and Migration Control ............................. 103 Richard Barnes The Legal Framework Concerning the Smuggling of Migrants at Sea under the UN Protocol on the Smuggling of Migrants by Land, Sea and Air ................................................................................................... 151 Tom Obokata Part III

European Union Aspects

Europe beyond its Borders: Refugee and Human Rights Protection in Extraterritorial Immigration Control........................................................ 169 Maarten den Heijer Extraterritorial Migration Control and Human Rights: Preserving the Responsibility of the EU and its Member States ..................................... 199 Evelien Brouwer

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Contents

Extraterritorial Border Controls in the EU: The Role of Frontex in Operations at Sea ..................................................................................... 229 Anneliese Baldaccini The Transformation of European Border Controls ........................................ 257 Elspeth Guild and Didier Bigo Part IV

State Practice

Migration Control at Sea: The Italian Case ................................................... 281 Alessia di Pascale Extraterritorial Strategies to Tackle Irregular Immigration by Sea: A Spanish Perspective ................................................................................... 311 Paula García Andrade Controlling Migration by Sea: The Australian Case ...................................... 347 Susan Kneebone US Migrant Interdiction Practices in International and Territorial Waters.......................................................................................... 375 Niels Frenzen The UK and Extraterritorial Immigration Control: Entry Clearance and Juxtaposed Control ................................................................................ 397 Gina Clayton Bibliography................................................................................................. 431 Index ............................................................................................................ 447

Preface This collection of essays attempts a detailed analysis of the legal challenges posed by contemporary phenomena of extraterritorial immigration control. The significance of this subject lies in the fact that legal questions are central to extraterritorial immigration control practices. The avoidance of substantive and procedural legal guarantees is often among the reasons for the development of immigration control outside state’s jurisdiction. More generally, extraterritorial immigration control is typically associated with a weakening of the legal guarantees from which migrants would otherwise benefit. The volume is divided into four sections. The first contains two overview chapters, respectively on legal aspects of developments in extraterritorial immigration control (Ryan), and on the manner in which these developments have transformed the wider immigration control regime (Mitsilegas). The second section focuses on the position of extraterritorial immigration control within international law, with chapters on responsibility for non-refoulement (Klug and Howe), the law of the sea (Barnes) and the Migrant Smuggling Protocol (Obokata). The third section focuses on extraterritorial immigration control by the EU and its member states, with chapters on international protection (den Heijer), human rights principles (Brouwer), Frontex (Baldaccini) and the transformation of border controls in Europe (Guild and Bigo). The final section offers a detailed account of leading national experiences of extraterritorial control: practices of interdiction at sea by Italy (di Pascale), Spain (García Andrade), Australia (Kneebone) and the United States (Frenzen), and the United Kingdom practices of entry clearance and ‘juxtaposed’ control (Clayton). This project began with a one-day Modern Law Review seminar, held at the Lincoln’s Inn Fields campus of Queen Mary, University of London on 13 June 2008, where most of the papers were first presented. We are grateful to the Modern Law Review for its generous funding for the seminar, and also for its permission to publish the seminar papers in this volume. We are also grateful to the Queen Mary Law School for its support for the seminar, and to Professor Trevor Dadson, Vice Principal (Humanities and Social Sciences) at Queen Mary, for having opened it. Finally, we would like to thank the authors for their commitment to the project, and for their patience in responding to our comments to them. All their

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contributions were vital to the attempt to offer a comprehensive legal perspective on the growing and important phenomenon of extraterritorial immigration control. Bernard Ryan and Valsamis Mitsilegas Canterbury and London, November 2009

List of Contributors Anneliese Baldaccini is Executive Officer for asylum and immigration within Amnesty International’s European Union office in Brussels Richard Barnes is Senior Lecturer in Law at the University of Hull Didier Bigo is Professor in the Department of War Studies at King’s College London and at the Institut d’Études Politiques, Paris Evelien Brouwer is Lecturer in Law at the Institute of Constitutional and Administrative Law at the University of Utrecht Gina Clayton is a former Senior Lecturer at the University of Huddersfield, and now writes for the research department of the Immigration Advisory Service in Manchester Maarten den Heijer is a PhD candidate at the Institute of Immigration Law in the Faculty of Law at the University of Leiden Alessia di Pascale is Researcher in European Union Law at the Faculty of Law, University of Milan Niels Frenzen is Clinical Professor of Law at the Gould School of Law, University of Southern California, in Los Angeles Paula García Andrade is Teaching Assistant in European Law and a PhD candidate, at the Faculty of Law, Comillas Pontifical University, Madrid Elspeth Guild is Jean Monnet chair and Professor of European Migration Law at the Radboud University, Nijmegen Tim Howe works as a consultant with UNHCR’s Regional Legal Unit in San José, Costa Rica Anja Klug is Senior Legal Officer at the Office of the United Nations High Commissioner for Refugees (UNHCR), Protection Policy and Legal Advice Services, Division for International Protection Services, Geneva Susan Kneebone is Professor of Law and Deputy Director, Castan Centre for Human Rights Law, Faculty of Law, Monash University, Melbourne, Australia

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List of Contributors

Valsamis Mitsilegas is Professor of European Criminal Law at Queen Mary University of London Tom Obokata is Lecturer in Law and Assistant Director of the Human Rights Centre at Queen’s University Belfast Bernard Ryan is Reader in Law at the University of Kent

Part I Overviews

Extraterritorial Immigration Control: What Role for Legal Guarantees? Bernard Ryan Introduction The immigration control systems of developed states are today frequently characterised by strategies of ‘extraterritorialisation’. This has involved the rejection of the model whereby admission decisions are taken at ports and border crossing points, while the policing of irregular migration takes place either at the borders or within the territory. Developed states now increasingly treat that model as anachronistic, and seek instead to take immigration control action – both decision-making and enforcement – prior to an individual’s arrival on their territory. In some cases, indeed, the objective appears to be that as much immigration control activity as possible should take place elsewhere, either on the territory of other states, or in international waters, where the presumption is that states lack jurisdiction. This chapter provides an overview, from a legal perspective, of extraterritorial practices within contemporary immigration control. It will focus on examples from the United States, the United Kingdom and the European Union, with the experiences of other developed states referred to where appropriate. The material is organised into three substantive sections, which discuss visa requirements, predeparture checks and interception at sea, respectively. The chapter’s starting-point is Guiraudon’s observation that extraterritorialisation strategies aim at “short-circuiting judicial constraints on migration control.”1 The chapter will show that the development of extraterritorial immigration control techniques typically reflects a mixture of non-legal and legal factors. Non-legal factors include passenger convenience, the prevention of irregular migration, security, and the terms of the relationship with specific other states. The legal element consists in the avoidance of international law and domestic law

1

Virginie Guiraudon, “Before the EU Border: Remote Control of the ‘Huddled Masses’,” in In Search of Europe’s Borders, ed. Kees Groenendijk, Elspeth Guild and Paul Minderhoud (The Hague, Kluwer: 2002), 194.

Bernard Ryan, Valsamis Mitsilegas, Extraterritorial Immigration Control, pp. 3–38. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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guarantees, including both substantive rights and procedural avenues for legal challenge. By way of conclusion, the chapter will reflect on the normative basis for the restoration of legal guarantees in a context of continued extraterritorial immigration control.

1. Visa requirements The initial sense of the term ‘visa’ was the endorsement of a travel document by a state official, in order to signify that they had ‘seen’ the document, in a context where the forms of travel document varied widely. Torpey has shown that general requirements upon travellers to obtain visas in this sense go back to at least the early nineteenth century in Europe.2 At that time, visa requirements typically applied to all travellers, irrespective of nationality, and applied to travel within countries as well as between them. Gradually, visa requirements came to acquire a second function: no longer mere endorsements, but rather a form of permission which an individual must obtain before arrival at a state’s ports of entry. Visa requirements, aimed specifically at controlling admission to states arose with the establishment of an inter-state passport system in the late nineteenth century. An early example was Germany’s visa requirement upon those arriving from Russia between 1879 and 1894, the purpose of which was to limit migration by ethnic Poles.3 Another early case was the United States law of 1884 which required returning migrants from China – who were exempt from new Chinese exclusion laws – to have their passports endorsed by US officials in the port of departure, in order to confirm their status.4 The First World War was decisive in the move to more general visa regimes: once introduced, they generally continued after they war, unless modified by reciprocal arrangements.5 The international visa regime was further developed in the 1930s, as a result of refugee flows associated with Nazi Germany’s policies, particularly after the Anschluss with Austria in March 1938, the annexation of the Sudetenland in October 1938 and the Kristallnacht pogroms of November 1938. The events of 1938 led potential destination states to use visa restrictions both to limit numbers and to select those least likely to impose financial costs

2

3 4 5

John Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge, Cambridge University Press: 2000), Chapter 3. Ibid, 108–110. Ibid, 98–99. Ibid, 116–117.


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upon them. The result was that, by early 1939, among possible destinations for those fleeing Nazism, only the open city of Shanghai did not require a visa.6 In the postwar era, visa requirements have been commonplace within immigration control regimes. In order to understand contemporary visa systems, this section contains a discussion of the position in the United States, United Kingdom and (more briefly) the European Union. United States The United States first introduced a visa requirement in July 1917, soon after its entry into World War I.7 A legislative basis for this requirement was given by an Act of May 1918 concerning entry and exit from its territory,8 and a visa requirement was retained after the war came to an end.9 The next major development was the introduction of a generalised visa regime for intending permanent migrants (known as ‘immigrants’ in the United States system) by the Immigration Act of 1924.10 The background was that national origins quotas had been introduced for permanent immigration by legislation in 1921, but proved unworkable without a system of entry permits, since passengers risked being refused entry upon arrival once the corresponding quota was exhausted. Accordingly, the 1924 legislation made the possession of a valid visa a precondition to admission for all permanent immigrants.11 Its effect was that negative decisions – because a quota had been reached, or for other reasons, such as an individual’s medical condition or that they were thought “likely to become a public charge” – took place

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8

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Alfred Sherman, Island Refuge: Britain and Refugees from the Third Reich (London: Paul Elek, 1973), 209. The United Kingdom introduced visa requirements for Austrian and German nationals in April 1938, and for Czechoslovak nationals in April 1939: ibid, 88–90, 158 and 271. “Joint Order of the Department of State and Department of Labor” (26 July 1917), reprinted in Immigration and Naturalization Law and Issues: A Documentary History, ed. Michael LeMay and Elliott Barkan (Westport, Greenwood: 1999), 113–115. Act of 22 May 1918, 65 Public Laws 154. Based on this power, a visa requirement was set out in Executive Order 2932 “Prescribing Rules and Regulations on the Issuing of Permits to Enter and Leave the United States” (8 August 1918), section 31, reprinted in American Journal of International Law Supplement 12 (1918): 331. Act making appropriations for the Diplomatic and Consular Service (2 March 1921, 66 Public Laws 357), discussed in Leon Wildes, “Review of Visa Denials: The Consular Officer as 20th Century Absolute Monarch” San Diego Law Review 26 (1989): 887, 893–894. Discussed by Torpey, 119–120 and Aristide Zolberg, ‘The Great Wall Against China: Responses to the First Immigration Crisis, 1885–1935’ in Migration, Migration History, History, ed. Jan Lucassen and Leo Lucassen (Berne, Peter Lang: 1997), 308–309. Immigration Act 1924, sections 2 and 13.

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mainly at points of departure rather than points of arrival. Temporary visitors (‘non-immigrants’) meanwhile remained subject to the rules deriving from the 1918 Act.12 The principle that all non-citizens require a visa in order to be admitted to the territory is now reflected in the Immigration and Nationality Act 1952.13 There are exceptions for journeys from certain adjacent territories – including Canada and Bermuda, but not Mexico – by nationals of those territories.14 Since the Immigration Reform and Control Act 1986, the United States has also had a ‘visa waiver program’ (VWP), which permits individuals to stay in the United States for up to 90 days for tourist or business purposes. At the time of writing, 35 countries are covered by the VWP, including 22 EU member states.15 The most recent reform of the US visa system is that, since 12 January 2009, the ‘Electronic System for Travel Authorisation’ (ESTA) has been added to the VWP.16 Under ESTA, intending VWP travellers must obtain advance electronic approval for travel to the United States. Passenger details are checked against terrorist and criminal watch lists, information on lost and stolen passports, and information on previous visa revocations. If approval is refused, the individual is required to apply for a visa, despite their VWP nationality. While no sanction is specified for not obtaining ESTA approval, an individual without it will presumably be denied boarding by a carrier, and would anyway face a refusal of admission should they succeed in reaching a United States port of entry. The mixture of immigration and security factors shaping the visa regime can be seen in the strict conditions for states’ eligibility for the VWP.17 These include a low rate of refusal of temporary visas to nationals (less than 3% in the previous year), that participating states report both lost and stolen passports to the United States or Interpol, and that they share intelligence on individuals who might be a threat to the US.18 Paradoxically, the existence of the VWP is thought to enhance security, because it gives the United States leverage over the forms of document 12

13 14 15

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Executive Order 4125 of 12 January 1925, discussed in United States ex rel London v. Phelps 22 F.2d 288 (Court of Appeals, 1 November 1927). 8 USCA 1182 (a)(7). 8 Code of Federal Regulations (CFR) 212.1. The VWP covers all EU members except Bulgaria, Cyprus, Greece, Poland and Romania. Seven non-EU European states are within the VWP: Andorra, Liechtenstein, Iceland, Monaco, Norway, San Marino and Switzerland. The other six VWP states are Australia, Brunei, Japan, New Zealand, Singapore and South Korea. For details, see Alison Siskin, Visa Waiver Program, Congressional Research Service Report RL 32221, 30 January 2009, 5–6 and Department of Homeland Security, ‘Changes to the Visa Waiver Program To Implement the Electronic System for Travel Authorization (ESTA) Program’ Federal Register 73 (111), 9 June 2008. For a summary of policy the VWP, see Siskin, 1–14. The main conditions are set out in 8 USCA 1187.


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issued by participating states. Since 27 October 2005, VWP nationals have had to present machine-readable passports, while participating states have been required to issue passports with biometric identifiers. In practice, irregular migration concerns are often decisive in the loss of VWP status, as when the fear of overstaying led to its withdrawal from Argentina (2001) and Uruguay (2003), after economic crises in those countries. While the US visa system was initially developed for practical reasons, at a time of long-distance sea travel, legal factors have also been significant throughout its history. This is because, since the 1920s, US courts have taken the view that consular decisions to refuse visas are not reviewable by the courts.19 They have done so both out of deference to the Congressional prerogative power over immigration, and because of a statement in the Immigration and Nationality Act precluding the Secretary of State from supervision of consular decisions over visas.20 The one exception is that judicial review is possible where a visa refusal affects constitutional rights, such as freedom of expression21 or rights concerning family life.22 By contrast, where a foreign national is refused admission at a United States port of entry, the default position is that they are entitled to review of any removal by an immigration judge.23 One exception is that, where a refusal of admission is due to the non-possession of required documents, or document fraud, removal without appeal is permitted (‘expedited removal’).24 A second exception is that entry under the VWP is conditional upon the individual’s waiving any legal claims against a decision of inadmissibility or removal.25 Even in these two cases, however, it remains possible to claim asylum within a removal procedure.26 19

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22 23 24 25 26

The early decisions are those of the Courts of Appeals in United States ex rel London v. Phelps 22 F.2d 288 (1927) and United States ex rel Ulrich v. Kellogg 30 F.2d 984 (1929). 8 USCA 1104(a). See James Nafziger, “Review of Visa Denials by Consular Officers” Washington Law Review 66 (1991): 1, 30–35 and Stephen Legomsky, “Fear and Loathing in Congress and the Courts: Immigration and Judicial Review” Texas Law Review 78 (2000) 1615, 1619–1623. The authority for this is the Supreme Court decision in Kleindienst v. Mandel 408 US 753 (1972), discussed in Nafziger, 32–34. The decision in Mandel has been taken at the Court of Appeals level to apply to all cases of visa refusals which engage the freedom of expression: e.g. American Academy of Religion v. Napolitano 573 F.3d 115 (2009), in which the refusal of a visa to Islamic scholar, Tariq Ramadan, was overturned on procedural grounds. For example in Bustamante v. Mukasey 531 F.3d 1059 (2008). 8 USCA, 1229a(a)(1). 8 USCA 1225(b)(1). 8 USCA 1187(b)(1). Within ‘expedited removal’, those who pass a ‘credible fear’ test in screening at a port of entry are admitted to the standard removal procedure involving an immigration judge, while those who fail this screening may have a hearing on the ‘credible fear’ question before a judge, which should occur within seven days: 8 USCA 1225(b)(1)(B). Those refused admission under the VWP, and who claim asylum – including those who present a false passport – are placed within an ‘asylumonly’ removal procedure before an immigration judge: 8 CFR 217.4(a)(1).

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United Kingdom The first steps taken by the United Kingdom towards visa requirements also took place during World War I. In March 1916, a rule was introduced that all persons travelling from France should have their photograph endorsed by a British official.27 By early 1917, all aliens (i.e. persons who were not British subjects) were required to obtain visas from a British consul before embarking for the United Kingdom.28 Visa requirements would then be maintained for aliens under the peacetime regime of immigration control retained after 1918. Over recent decades, the United Kingdom has extended its visa requirements in an incremental manner. As of November 1968, when the United Kingdom first published a list of visa states, visa requirements covered eight European countries, approximately 32 African states and approximately 26 Asian states.29 In the period up to the mid-1980s, changes to visa requirements were mainly driven by international political concerns: Cuba, the German Democratic Republic (both added in 1972) Pakistan (1973) and Argentina (1982) became visa states, while Yugoslavia (removed in 1970), Bahrain, Qatar (both 1972), Niger (1974) and the United Arab Emirates (1978) ceased to be so.30 There was then a marked expansion of visa requirements between 1985 and 1995, with fifteen states added to the list.31 A further sixteen states were added in 1996, largely as a result of EU legislation, of which only three were removed when the EU rules ceased to apply to the United Kingdom in 2001.32 Perhaps because the pool

27 28

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“Travel Passports from France”, Times, 28 February 1916. See the parliamentary answer given by Home Secretary George Cave, House of Commons Debates, 19 March 1917, col. 1532. Home Office, “Immigration Appeals Bill: Aliens: Draft Instructions to Immigration Officers” Cmnd 3830 (November 1968), Appendix. In the case of Asia and Africa, the document listed only the non-Commonwealth countries exempt from visa requirements (five in each case). The figures given in the text are the author’s estimates of the number of independent states in 1968 which were neither in the Commonwealth nor exempt. For the position as of 1 January 1983, see Statement of Changes in Immigration Rules, 1982–1983 House of Commons Papers 66, Appendix. These were: Sri Lanka (1985), Bangladesh, Ghana, India, Pakistan (all 1986), Nigeria (1987), Haiti, Turkey (both 1989), Algeria, Morocco, Tunisia (all 1990), Uganda (1991), Ivory Coast, Sierra Leone (both 1994) and Gambia (1995). From 4 April 1996, the UK was obliged to require visas of nationals of 101 states and other entities under EU Regulation 2317/95 (1995 OJ L 234/1) and Regulation 574/ 1999 (1999 OJ L 72/2). The states which the UK added in 1996 were Tanzania (5 January 1996), Kenya (8 March 1996), then Bahrain, the Dominican Republic, Fiji, Guyana, Kuwait, the Maldives, Mauritius, Niger, Papua New Guinea, Peru, Qatar, Surinam, United Arab Emirates and Zambia (all 4 April 1996). After the UK ceased to be covered by the EU common visa policy (4 April 2001), the Maldives, Mauritius and Papua New Guinea were removed from its list (2002).


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of candidates was much reduced, only four states were definitively added between 1997 and 2003.33 From 1985 to 2003, when the United Kingdom acted unilaterally, its decision to introduce visa requirements for particular countries was often a means to forestall asylum applications. This was seen initially with Sri Lanka in 1985, when the Government was explicit that the measure was a response to an existing flow of Tamil asylum applicants.34 The introduction of visa requirements after a significant rise in asylum applications would later be seen in the cases of Turkey in 1989, Yugoslavia in 1992, Colombia in 1997, the Slovak Republic in 1998 and (among other factors) Zimbabwe in 2002.35 Avoidance of asylum applications was not always a central factor, however. For example, the justification given for the introduction in 1986 of visas for Bangladesh and India, and for visitors from Pakistan, was that this would enable arrivals from those countries to be managed, while giving security to travellers that they would be admitted upon arrival.36 In the cases of Algeria, Morocco and Tunisia in 1990, the then non-binding coordination of visa requirements among EU member states was given as the explanation.37 In 2003, the reason given for the introduction of a visa requirement for Jamaican nationals was that this would reduce overstaying.38 The most recent developments with respect to visa requirements began with the announcement in March 2007 of a systematic ‘visa waiver test’ for all states outside the European Economic Area (EEA).39 Among the detailed criteria to be

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36 37

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These were Colombia, Ecuador (both 1997), Zimbabwe (2002) and Jamaica (2003). The Slovak Republic was added in 1998 but removed in December 2003, some months before it joined the EU. Home Secretary David Waddington, House of Commons Debates, 23 July 1985, cols 972–973. Statement by Home Secretary Douglas Hurd, House of Commons Debates, 6 June 1989, written answers cols 45–46 (Turkey); statement by Home Secretary Kenneth Clarke, House of Commons Debates, 5 November 1992, cols 424–425 (former Yugoslavia); Home Office Minister, Mike O’Brien, quoted in “Crisis as Colombian refugees flood into Britain”, Independent, 21 August 1997; Home Secretary Jack Straw, quoted in “Slovaks now required to have visa on entering UK”, Guardian 8 October 1998; and Home Secretary David Blunkett, quoted in “Zimbabweans must get visas to enter UK”, Guardian, 8 November 2002. Home Secretary Douglas Hurd, House of Commons Debates, 27 October 1986, cols 87–89. Home Secretary David Waddington, House of Commons Debates, 23 February 1990, written answers, cols 958–959. Home Secretary David Blunkett, House of Commons Debates, 8 January 2003, written statements cols 10–11. Home Office, Securing the UK Border: Our vision and strategy for the future (March 2007), 9. The European Economic Area includes the 27 EU member states, Iceland, Liechtenstein and Norway. Switzerland has a sui generis relationship with the EEA, which includes the free movement of persons. In line with the practice in United Kingdom immigration law, Switzerland is treated here as if it were an EEA member.

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applied, irregular migration risks featured prominently, defined as a “low incidence of identified immigration abuse, including denial of visas for entry to the UK owing to presentation of false documents, overstaying, illegal working and clandestine entry”. Other criteria included the security of the state’s passports; reporting of lost or stolen passports; co-operation in the repatriation and redocumentation of nationals; a low risk of terrorism and criminality; and, the economic impact of a visa requirement. This new approach was clearly influenced by the system in the United States, discussed above, not least in that the language of ‘waiver’ treats visa requirements as the norm, and exceptions as requiring of justification. The test eventually led to visa requirements being imposed on Bolivia, Lesotho, South Africa, Swaziland and Venezuela in 2009, and to the partial ending of the general visa requirement for Taiwan.40 At the time of writing, the result of the gradual expansion of UK visa requirements is that the nationals of 109 states and similar entities are covered, while 53 UN member states outside the EEA are visa-exempt.41 In addition, in recent years, the United Kingdom has expanded the range of migrants from visa-exempt states, who must obtain prior entry clearance.42 The current position is that a non-EEA national whose intended stay is for more than six months requires entry clearance in all cases. Even if the individual’s stay is for less than six months, entry clearance is also required for many specific categories, including all of those coming to engage in economic activity. It is clear that the current British strategy is to expand entry clearance as far as possible. As a 2007 Home Office policy document on immigration control put it: “off-shoring our border control is the keystone of our border defence.”43 The framework governing legal challenges to adverse immigration decisions is crucial to the strategy of maximising the reach of entry clearance. Firstly, those who are refused entry clearance may lack an effective legal remedy. While a refusal of entry clearance has in principle been covered by the immigration appeal system ever since the Immigration Act 1971, the reach of this entitlement has subsequently been narrowed.44 An Act of 1993 removed rights of appeal where (1) 40

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Home Secretary Jacqui Smyth, House of Commons Debates, 9 February 2009, column 51WS. Taiwanese nationals remain subject to a visa requirement if they possess a passport without an identification number. The list of states subject to a visa requirement is in the Immigration Rules, Appendix 1. Ibid, para 24. There is an exception for persons with a subsidiary form of British nationality (who are subject to immigration control). Home Office, Securing the UK Border, 3. Immigration Act 1971, s 13(2). At the time of writing, the Asylum and Immigration Tribunal (AIT) has jurisdiction over entry clearance, under the Nationality Immigration and Asylum Act 2002, s 82(2)(b). The AIT also has jurisdiction with respect to refusals of family permits to the family members of EEA nationals: Immigration (European Economic Area) Regulations 2006, SI 2006 No 1003, Reg 26.


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the applicant was an intending visitor, short-term student, prospective student, or a dependant of these, or (2) the reason for the refusal of entry clearance was that the individual did not possess a ‘relevant document’ (e.g. passport, identity document or work permit), or did not meet specified requirements as to age, nationality or period of intended stay.45 The effect of those changes was only partly offset by legislation in 1999 which restored a right of appeal for family visitors.46 A second curtailment of appeal rights came in 2008, with the removal of appeals concerning the points-based system – that is, by economic migrants, students and their dependants.47 As Clayton points out in her chapter in this collection the result is that overseas appeal rights are effectively limited to family cases. A second legal point is that only those who reach the United Kingdom – whether because they are not subject to entry clearance requirements, or because they reach the UK in spite of them – have the possibility to claim international protection, under the Geneva Convention and/or the ECHR. An equivalent possibility is not open to those refused entry clearance. Within United Kingdom legislation, this result is achieved by section 95 of the Nationality Immigration and Asylum Act 2002, which does not allow an appeal based on a claim for international protection by a person who is outside the territory.48 Thirdly, there are doubts as to the extent to which fundamental rights arguments may be made to challenge United Kingdom entry clearance refusals. Following the incorporation of the ECHR into United Kingdom law by the Human Rights Act 1998, the Immigration and Asylum Act 1999 introduced a general right to appeal all negative immigration decisions on ECHR grounds. However, in its decision in Moon in 2005, the Asylum and Immigration Tribunal held that the ECHR does not cover entry clearance refusals other than those concerning the guarantee of family life in its Article 8.49 This outcome may be contrasted not just with that in the United States, but also with the German and Belgian case law concerning the Unification Church discussed in Evelien Brouwer’s contribution to this collection.

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Immigration Act 1971, s 13, as amended by Asylum and Immigration Appeals Act 1993, ss 10 and 11. Immigration and Asylum Act 1999, ss 59, 60 and 65. Amendment of ss 88A, 90 and 91 of the 2002 Act by the Immigration Asylum and Nationality Act 2006, s 4, read together with the Immigration, Asylum and Nationality Act 2006 (Commencement No. 8 and Transitional and Saving Provisions) Order 2008, SI 2008 No. 310. There is an exception for those who are removed from the UK while an appeal is pending. Moon USA [2005] UKIAT 00012, discussed in more detail in Clayton’s chapter in this volume.

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It remains possible for those lacking appeal rights to bring judicial review claims to the High Court. Judicial review action taken by immigration applicants outside the territory should not be thought impossible. This is illustrated by the Farrakhan decision in 2002, where the applicant unsuccessfully challenged an exclusion order, and by the Yousaf decision in 2009, in which the applicant unsuccessfully challenged the non-issue of a work permission.50 Nevertheless, potential applicants are likely to be deterred in most cases by the potential costs of unsuccessful judicial review proceedings, and will generally prefer to make a fresh visa application. European Union European Union policy on short-stay visas (up to three months) concerns the 28 Schengen states – that is, the 25 EU member states other than Britain and Ireland, and Iceland, Norway and Switzerland.51 Under this policy, at the time of writing, there are 131 states and other entities on the so-called ‘negative list’ of states whose nationals require a visa.52 The corresponding ‘positive list’ has 36 states or other entities with respect to which participating states may not apply short-stay visas. Because of its link to the Schengen border-free zone, the content of the EU’s visa list policy has generally been shaped by the preferences of the participating states.53 It is clear however that the avoidance of irregular migration is at the heart of the policy. That was seen for example in the June 2002 call by the European Council for a review of the visa lists, as part of the EU strategy in relation to “illegal immigration”.54 That review led to addition of Ecuador to the negative list, for reasons “based primarily on considerations relating to illegal immigration”.55 Similarly, in 2006 the Commission proposed to add Bolivia to the list of visa states as a result of “persistent and intense migratory pressure.”56 Conversely, 50

51

52 53

54

55

56

R (Farrakhan) v Secretary of State for the Home Department [2002] QB 1391 and R (Yousaf ) v. Secretary of State for the Home Department [2009] EWHC 1006. Visas for stays of over 3 months are governed by the law of the member states: Article 18 of the Schengen Implementing Convention 1990, as substituted by Regulation 1091/ 2001 (2001 OJ L 150/4). Regulation 539/2001 (2001 OJ L 81/1), as amended. For a discussion of the negotiation of Regulation 2317/ 95 (above), see Steve Peers, “The Visa Regulation: Free movement blocked indefinitely” European Law Review 21 (1996): 150–155. Presidency Conclusions to the Seville European Council, 21 and 22 June 2002 (available from http://europa.eu/european-council/index_en.htm), para 30. COM (2002) 679, 3 December 2002, p 2. Ecuador’s status was changed by Regulation 543/ 2003 (2003 OJ L 69/10). COM (2006) 84, 13 July 2002, p 2. Bolivia’s status was changed by Regulation 1932/2006 (OJ 2006 L 405/ 23).


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states are likely to be moved to the positive list when there is thought to be a low risk of irregular migration, and reciprocity in visa-free travel can be agreed with them. In particular, that was the reason for the transfer of six Commonwealth states from the negative to the positive lists during 2009, after the signature of agreements on reciprocity in visa waivers with the EU.57 An important difference between the EU system and those of the United States and United Kingdom is that rights of appeal against visa refusals are recognised. In relation to long-term visas (over three months), a right of legal challenge is provided for in directives on the admission of family members, students, researchers and highly qualified employees.58 More recently, the Visas Code, adopted in July 2009, provides that those refused short-term visas (up to three months) shall have an entitlement both to know the reasons, and to an appeal “conducted in accordance with … national law.”59 These provisions are stronger than the previous position, under the Common Consular Instructions, which left participating states with competence over both reasons and appeals.60 The greater provision for avenues of legal challenge within the EU suggests that legal considerations play less of a role within its visa policy. Legal factors are still significant, however, given that visa refusals frustrate the possibility to apply for asylum, and that rights of legal challenge are likely to be harder to exercise from abroad. With respect to the latter, it is revealing that, in the drafting of the Visas Code, the Council of Ministers removed a clause from the Commission proposal which would have required a notice of refusal of a visa to include information concerning legal representation.61 This outcome may be contrasted with the 57

58

59

60

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Council Decisions of 6 April 2009 concerning Antigua and Barbuda, Bahamas, Barbados, Mauritius, Saint Kitts and Nevis and Seychelles, published in OJ 2009 L 169/1. The possibility to change their status had been created by an amendment to the 2001 Regulation in 2006: see Regulation 1932/2006 (above). Directive 2003/ 86 on family reunion (OJ 2003 L 251/12), Article 18; Directive 2004/ 14 on the admission of students (OJ 2004 L 375/12), Article 18(4); Directive 2005/ 72 on the admission of researchers (OJ 2005 L 289/ 15), Article 15(4); Directive 2009/50 on entry and residence for highly qualified employment (OJ 2009 L 155/17), Article 11(3). None of these applies to Denmark or the United Kingdom, while only the directive on researchers applies to Ireland. These are not Schengen measures, and therefore do not apply to non-EU states. Regulation 810/2009 establishing a Community Code on Visas (2009 OJ L 243/1), Article 32(3). The Visas Code is part of the Schengen system, and so applies to Iceland, Norway and Switzerland, while Denmark has a choice as to whether it participates. It does not apply to Ireland or the United Kingdom. For a commentary on the Code, see Annalisa Meloni, “The Community Code on Visas: Harmonisation at Last?” European Law Review 34 (2009): 671–695. Common Consular Instructions on Visas for Diplomatic Missions and Consular Posts, OJ 2005 C 326/1, para 2.4. Article 23(3) of the Commission proposal, COM (2006) 403.

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requirement to provide that information in the equivalent provision of the Schengen Borders Code, for those refused entry at the external borders of the Schengen zone.62

2. Pre-embarkation controls A second way for a state to ‘extraterritorialise’ its immigration policy is for it to send its immigration or border officials outwards, in order to encounter travellers before they arrive on the state’s territory. Strategies of this kind come in different forms: the summary here distinguishes between formal pre-clearance schemes, where an immigration decision is taken prior to embarkation, and informal decision-making through advice given to carriers. United States preclearance The United States is the state with the greatest experience of formal pre-clearance arrangements. Its preclearance operations began with Canada, with the introduction of ad hoc controls at Toronto airport in 1952.63 These controls were later formalised through the Air Transport Preclearance Agreement of 1974 between the two countries.64 Increasing concern for the legal position of individuals led to a legal basis in Canadian law being provided by the Preclearance Act 1999, and to a second international agreement in January 2001.65 Under these arrangements, US controls on both persons and goods operate at eight Canadian airports.66 The Canadian government’s assessment is that the advantage of preclearance is its “great convenience to the travelling public,” because it permits flights to all airport terminals in the United States, and not just airports or terminals designated as ‘international’. Under the international agreement, Canada has the option to operate immigration controls at US departure points, but has not chosen to do so – presumably because there are far fewer advantages in opening other Canadian destinations to direct travel to the United States.

62

63

64 65

66

Regulation 562/2006 establishing a Community Code on the rules governing the movement of persons across borders, OJ 2006 L 105, Article 13(3). The information in this paragraph is taken from Government of Canada, Preclearance Act Review: Information Document (February 2009). Agreement signed on 8 May 1974, 953 UNTS 255. Agreement signed on 18 January 2001, available at http://www.treaty-accord.gc.ca/text-texte .asp?id=103842 (accessed 3 November 2009). Calgary, Edmonton, Halifax, Montreal, Ottawa, Toronto, Vancouver and Winnipeg.


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The United States has also entered international agreements with respect to Bermuda, the Bahamas (both in 1974) and Aruba (1987 and 1994), which permit both immigration checks and controls on goods.67 As with Canada, the main purpose of these agreements appears to be to facilitate travel, by permitting flights to all destinations in the United States. In the case of Bermuda, a further agreement in 2009 will, when implemented, extend pre-clearance to private aircraft.68 In addition, the United States conducts immigration controls at airports in Ireland. This system, known as ‘pre-inspection’, began in Shannon in 1986 (initially as a pilot) and was extended to Dublin in 1994 when direct flights commenced from there to the United States.69 Because pre-inspection at the Irish airports has hitherto involved immigration controls alone, it has not so far been implied the possibility of landing at domestic United States airports or terminals. This will presumably change with the implementation of a second agreement, concluded between the United States and Ireland in November 2008, which provides for full pre-clearance, including inspections of goods, and for the application of controls to private aircraft.70 In the absence of flights to domestic airports and terminals, the main purpose of these arrangements has probably been to allow the United States to refuse admission to travellers from Ireland. A further factor, which has been relied upon by the Irish government in order to justify these arrangements, is that United States immigration controls encourage reliance upon Shannon by transatlantic traffic.71 It is unlikely to be coincidental that the United States has a strategic interest in Shannon’s commercial viability, as it uses the airport for stopovers by military aircraft. While the United States preclearance arrangements – the Irish case apart – have mainly been adopted for reasons of traveller convenience, there is an immigration law dimension as well. Under US immigration law, a decision taken

67

68

69 70

71

In relation to Bermuda, Agreement between the United Kingdom and United States signed on 15 January 1974 (928 UNTS No 95); Agreement between the United States and Bahamas signed on 23 April 1974 (953 UNTS No 201); in relation to Aruba, Agreements between the Netherlands and the United States signed on 16 June 1987 (1520 UNTS 27) and on 2 December 1994 (1948 UNTS 77). Department of Homeland Security, “Secretary Napolitano Signs Agreement on Aviation Preclearance Security Operations with Bermuda,” press release, 23 April 2009. Agreement signed on 25 June 1986, 1438 UNTS 11. Department of Homeland Security, “DHS Reaches Agreement with Ireland on Aviation Preclearance,” press release 17 November 2008. The text of the agreement can be found as an Annex to Ireland’s Aviation (Preclearance) Act 2009. Minister for Communications, Jim Mitchell on the 1986 agreement, Dáil Debates, 6 June 1986, cols 1444–1453 and Minister for Transport, Noel Dempsey, Dáil Debates, 30 June 2009, cols 290–293.

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within preinspection has “the same effect … as though made at the destined port-of-entry in the United States.”72 Despite that, a person prevented from travelling to the United States under these arrangements will be unable to access the legal procedure which would have been applicable had they been refused entry at a port of entry (see section 1, above). That is because immigration judges rule on an individual’s admissibility or asylum claim only within a removal procedure, and do not have jurisdiction over a pre-embarkation refusal. Juxtaposed controls A parallel case of formal pre-embarkation immigration decisions is provided by the ‘juxtaposed controls’ in operation on certain journeys between the United Kingdom on the one hand and France and Belgium on the other.73 (These arrangements are analysed in detail in Gina Clayton’s contribution to this volume.) Juxtaposed controls began in 1994, with the application of all categories of border control to persons travelling through the channel tunnel, pursuant to an international agreement between France and the United Kingdom.74 Subsequent developments concerned immigration controls alone. In May 2000, a second agreement between the two states authorised pre-boarding immigration controls at Eurostar stations.75 This was followed by the introduction of preboarding immigration controls on departures from the Brussels Eurostar station in July 2004, based on tripartite agreements between Belgium, France and the United Kingdom.76 In addition, in February 2003, France and the United Kingdom concluded an agreement on frontier controls at sea ports, which covers ferry terminals on routes between the two states, including the key route between Calais and Dover.77 Here too, traveller convenience has been part of the reason for the ‘juxtaposed controls’ involving the United Kingdom. This is particularly true of the channel

72 73

74

75 76

77

8 CFR 235.5. An earlier account, on which this summary draws, is in Bernard Ryan, “The European Dimension to British Border Control” Immigration Asylum and Nationality Law 18 (2004): 8–18. The legal basis is in the Sangatte Protocol to the 1986 Treaty of Canterbury between France and the United Kingdom (the governing agreement for the channel tunnel), published as Cm 2366 (1993). This is the ‘Additional Protocol’, published as Cm 5015 (2000). The agreed provisions concerning the Belgium-United Kingdom route can be found in Schedule 2 to the Channel Tunnel (Miscellaneous Provisions) Order 1994 (SI 1994 No. 1405), as amended by the Channel Tunnel (Miscellaneous Provisions) (Amendment) Order 2004 (SI 2004 No. 2589). These derive from an initial agreement in 1993, and an administrative arrangement in 2004. This is the ‘Le Touquet Treaty’, published as Cm 5832 (2003).


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tunnel controls: once security checks are made on vehicles prior to entry into the tunnel, it reduces delay if immigration and other frontier controls also take place at that stage. While subsequent developments at Eurostar stations and ferry ports can be rationalised in similar terms, in fact these were mainly introduced in order to frustrate irregular migration to the United Kingdom, and the making of asylum claims there. The background to the Eurostar juxtaposed controls was the increase in undocumented arrivals and persons claiming asylum at the terminus in London (then Waterloo).78 Equally, the extension of immigration controls to the ferry ports was intended to address irregular migration pressures around Calais, and was decided upon by the two governments in 2002 at the same time as the French government agreed to close the Red Cross humanitarian camp for migrants at nearby Sangatte.79 This immigration control objective has been furthered by three aspects of the international arrangements. Firstly, the agreements concerning the channel tunnel and ferry ports include provision for a ‘control zone’ within which officials the state of destination are allowed to operate.80 The United Kingdom border authorities use their ‘control zones’ in order to conduct X-ray, carbon dioxide and other checks, in order to detect migrants concealing themselves on trucks bound for the United Kingdom. Secondly, the agreements between France and the United Kingdom concerning the Eurostar and ferry ports provide that asylum claims are the responsibility of the state of departure, until the closure of the train doors or the departure of the vessel.81 Thirdly, all of the arrangements referred to provide that a person refused access to the destination territory is the responsibility of the state of departure.82 The limited avenues for legal challenges are again central to understanding the success of juxtaposed controls. United Kingdom law was modified in 2000 to make clear that immigration officers who are outside the territory may examine passengers, including by giving or refusing leave to enter, and may cancel leave to enter deriving from entry clearance.83 It is not clear however that the same extension applies to rights of appeal. Claims of international protection are undoubtedly

78 79

80 81

82

83

Home Office Minister Lord Bassam, House of Lords Debates 16 March 2001, cols 1124–1125. For both announcements, see ‘Closure Timetable set for Sangatte Centre,’ Immigration and Nationality Directorate press release, 12 July 2002. Article 5 of the Sangatte Protocol and Article 3 of the Le Touquet Treaty. Article 4 of the Additional Protocol and Article 9 of the Le Touquet Treaty. There is no equivalent statement in the published agreements with Belgium, but it is to be presumed that a similar practice applies. Article 18 of the Sangatte Protocol, Article 3 of the Additional Protocol, Article 6 of the 2004 agreement with Belgium and Article 7 of the Le Touquet Treaty. Immigration (Leave to Enter or Remain) Order 2001 (SI 2001 No 1161), Article 7.

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blocked by section 95 of the Nationality Immigration and Asylum Act 2002 Act (referred to in the previous section), which precludes appeals on this ground by persons outside the United Kingdom. In other cases, the approach of the immigration authorities appears to be to allow appeals on the same basis as if the individual had been refused entry at a United Kingdom port.84 A potential problem for that approach is the legislative provision whereby refusal of leave to enter gives rise to a right of appeal only if, “on … arrival in the United Kingdom,” the individual had entry clearance.85 It is arguable on logical grounds that the reference to “arrival in the United Kingdom” excludes a right of appeal in all cases where leave to enter is refused – including by the cancellation of leave86 – before the individual has reached the United Kingdom. If that was the intention behind this phrase, however, this was not communicated to Parliament when the phrase was inserted into the legislation as part of the amendment of rights of appeal in 2006. Then, the Government focused on the removal of rights of appeal from all those without entry clearance (the point discussed in the previous section), and did not refer a further exclusion of rights of appeal for persons with entry clearance, but prevented from embarking at a juxtaposed control.87 It may be added that any general exclusion of rights of appeal is inapplicable to EEA nationals and their family members, as a refusal to admit them at a juxtaposed control is presumably an example of an “EEA decision” which they may challenge.88 For non-EEA cases, it also remains possible to claim either race discrimination or a breach of the ECHR.89 As we have seen, however, there are doubts in the United Kingdom as to the extraterritorial applicability of the ECHR in non-family cases. A final point concerns the position where persons are refused entry to France at the reciprocal juxtaposed controls operating at departure points in the United Kingdom. This is governed by the Schengen Borders Code, which sets out the general principle that a person who is refused entry at a Schengen border is entitled both to “a substantiated decision stating the precise reasons for the refusal” 84

85 86

87

88

89

See UK Border Agency, Border Force Operations Manual: Appeals, http://www.ukba.homeoffice .gov.uk/policyandlaw/guidance/borderforceoperationsmanual/ (accessed 3 November 2009). Nationality Immigration and Asylum Act 2002, section 89(1). Note that cancellation of continuing leave is treated as if it were a refusal of leave to enter, under Immigration Act 1971, Sch 2, para 2A(9). See the remarks of Baroness Ashton, House of Lords Debates, 11 January 2006, cols GC94-GC95. The category of “EEA decision” includes “a decision … that concerns a person’s… entitlement to be admitted to the United Kingdom”: Immigration (European Economic Area) Regulations 2006 (SI 2006 No 1003), Reg 2(1), while the right of appeal against EEA decisions (ibid, Reg 26) does not have an express territorial limit. Nationality Immigration and Asylum Act 2002, section 89(2).


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and to an appeal “in accordance with national law.”90 The Code includes specific provisions permitting pre-departure checks upon travellers on high-speed trains and ships, based on international agreements between the states concerned.91 It may be inferred from these references within the Code that the general principle of a right of appeal also applies to immigration refusals taken prior to departure. Co-operation with carriers Legal obligations upon the carriers of passengers who are not admitted to a state have a long history. In the nineteenth century, US states and cities with seaports often obliged carriers to post bonds for migrants considered likely to become a public charge.92 Perhaps the first example of a carriers’ obligation linked to systematic immigration control was Australia’s Immigration Restriction Act 1901. Reflecting the ‘white Australia’ policy of the newly formed state, the 1901 Act imposed a penalty on carriers who brought non-European passengers to Australia who were not admitted – usually, because they failed a literacy test designed to exclude them.93 A further development was the linking of carriers’ obligations to the lack of a visa, which appears to have first been done by the United States’ Passenger Act 1924.94 Carriers’ penalties for bringing inadequately documented passengers are now common. For example, Australia’s Migration Act includes an offence to bring a non-citizen to the country without a visa.95 The United States imposes penalties on carriers who bring foreigners without a valid passport and (if required) a valid visa.96 European states began to adopt carriers’ sanctions from the mid-1980s onwards, with Germany, the United Kingdom doing so in 1987, France and Italy in 1993 and the Netherlands in 1994.97 In the same period, carriers’ 90 91

92

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94 95 96 97

Regulation 562/2006, Article 13. Ibid, Annex VI, paras 1.2.2 and 3.1.1. Note that a refusal of entry at the channel tunnel is arguably not covered by the concept of a ‘high speed train’. For a detailed account of selective bonds, see Benjamin Klebaner, “State and Local Immigration Regulation in the United States before 1882” International Review of Social History 3 (1958): 274. For a discussion of their place in the history of US immigration control, see Aristide Zolberg, “The Archaeology of ‘Remote Control’, in Migration Control in the North Atlantic World, ed. Andreas Fahrmeir, Olivier Faron and Patrick Weil (New York, Berghahn: 2003). Immigration Restriction Act 1901, section 9. For the history of the 1901 Act, see A.T. Yarwood, Asian Migration to Australia: The Background to Exclusion 1896–1923 (Melbourne: Melbourne University Press, 1964) 19–41. Immigration Act 1924, section 16. Migration Act 1958, section 229. 8 USCA 1323. For a detailed account, see Antonio Cruz, Shifting Responsibility: Carriers’ Liability in the Member States of the European Union and North America (Stoke-on-Trent, Trentham Books: 1995), 27–66.

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sanctions also came to be required at the international level. In particular, the 1990 UN Migrant Smuggling Protocol – to which there are 150 parties at the time of writing – requires states to oblige “commercial carriers … to ascertain that all passengers are in possession of the travel documents required for entry into the receiving State.”98 In addition, since 1997, Schengen rules have obliged participating states to impose penalties upon the carriers of inadequately documented non-EU nationals.99 Other contemporary legal provisions require carriers to bear the costs of the detention and/ or removal of passengers who are not admitted under immigration laws. For example, in the United Kingdom, the Immigration Act 1971 permits an immigration officer to direct a carrier to remove a person they have brought to a port and who has been refused entry.100 Similarly, the Schengen rules on carriers oblige member states to require carriers to return inadequately documented passengers. For our purposes, the significance of carriers’ penalties and other obligations is that they provide an incentive for carriers to co-operate with immigration officials. One form of co-operation is known as ‘carrier liaison’, and involves the stationing of immigration officials at embarkation points in order to give advice to carriers, particularly in relation to the adequacy and genuineness of passenger documents. Carriers’ liaison schemes were generally set up in the decade after the mid-1980s, as visa requirements and carriers’ sanctions expanded. For example, Australia and Canada began liaison operations in 1989, New Zealand did so in 1991, the United Kingdom in 1993 and the Netherlands in 1994.101 In the case of the United States, a limited ‘carrier consultant program’ was in place in 1994, aimed at training airline staff and government overseas government officials in the review of passenger documents.102 The most recent version of carrier liaison in the United States is the

98 99

100 101

102

The United Kingdom provision for carriers’ penalties is now in the Immigration and Asylum Act 1999, section 40, which refers both to identity documents and visas (where required). Migrant Smuggling Protocol, Article 11(3) and (4). Schengen Implementing Convention (above), Article 26 and Directive 2001/ 51 (OJ 2001 L 187/45). The United Kingdom has elected to participate in these Schengen measures. Immigration Act 1971, Schedule 2, para 8. For the first four states, information is in Government Accountability Office, Aviation Security: Efforts to Strengthen International Passenger Prescreening are Under Way, but Planning and Implementation Issues Remain, Report GAO-07-346, May 2007, Table 1. For the Netherlands, see Sophie Scholten and Paul Minderhoud, “Regulating Immigration Control: Carrier Sanctions in the Netherlands” European Journal of Migration and Law 10 (2008): 123, 137. See the evidence of Immigration and Naturalization Service Commissioner Doris Meissner to the Senate Commission on the Judiciary, hearing on Proposals for Immigration Reform, 15 June 1994, referring to the posting of officials to Pakistan and the Netherlands.


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‘immigration advisory program’, which aims to prevent the travel of those with inadequate documents or who pose a security threat.103 A second form of co-operation between carriers and immigration authorities is preferential schemes, through which carriers’ either avoid liability or benefit from reduced sanctions, if they comply with specified procedures. For example, Britain has had an ‘approved gate check’ system since 1992, in order to protect carriers against passengers disposing of their documents after embarkation.104 Canada has a system whereby a ‘memorandum of understanding’ between an airline and the Canadian Border Services Agency can lead to a full or partial reduction in the amount of an administrative fine for persons not admitted.105 In the case of the Netherlands, the introduction of carriers’ sanctions led to a ‘memorandum of understanding’ between the immigration authorities and KLM, the main international carrier, which came into force in April 2000. Under that agreement, in return for the KLM agreeing to implement checks on every passenger, to train its staff, and to follow immigration officials’ advice in all cases, it was agreed that it would not be prosecuted for inadequately documented passengers, up to a defined annual quota.106 Part of the significance of carrier liaison operations is that they lead to the involvement of immigration officials in refusing permission to travel to individual passengers. Many examples may be given to illustrate the general point. Canadian officers participated in the interception of 10,984 inadequately documented passengers in the decade from 1991–2000.107 In the case of the United Kingdom, official figures show that 180,000 passengers were refused boarding because of the work of airline liaison officers between 2001 and 2007.108 The Netherlands’ immigration authorities advised carriers not to allow boarding in

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104

105

106 107

108

Information from General Accountability Office, Visa Waiver Program: Actions Are Needed to Improve Management of the Expansion Process, and to Assess and Mitigate Program Risks (GAO08-1142T, 24 September 2008), 11. For an early discussion, see Frances Nicholson, “Implementation of the Immigration (Carriers’ Liability) Act 1987: Privatising Immigration Functions at the Expense of International Obligations?” International and Comparative Law Quarterly 46 (1997): 586, 592–593. Current information can be found at http://www.ukba.homeoffice.gov.uk/aboutus/workingwithus/ transportindustry/ (accessed 3 November 2009). Immigration and Refugee Protection Regulations 2002 (SOR 2002 No 227), Reg 20 and Citizenship and Immigration Canada, Obligations of Transporters (Manual ENF 15, 13 February 2009), para 9.2. Scholten and Minderhoud, 140–143. Citizenship and Immigration Canada, Review of the Immigration Control Officer Network: Final Report (2001), section 3.0. Immigration Minister Liam Byrne, House of Commons Debates, 22 July 2008, Column 1353W.

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3,500 cases in 2004.109 In the case of the United States, a pilot programme in Madrid led to 435 passengers being prevented from travel between February 2008 and June 2009.110 The expansion of carriers’ obligations from the mid-1980s, and the related development of co-operation between carriers and immigration authorities, have often been designed to uphold visa requirements, and therefore to prevent irregular migration and to frustrate potential asylum applications.111 From a legal perspective, the consequence of these developments is that the effective decision to prevent travel is no longer taken by immigration officials, but rather by the carriers themselves. The consequence of this ‘privatisation’ is to further distance states from the prospect of legal action based on an individual’s entitlement to travel and from claims to international protection. There is little or no prospect of a successful legal action against the carrier either, as is illustrated by unsuccessful litigation in the United Kingdom concerning alleged breach of EU free movement of persons principles and race discrimination.112 Equally, it may be thought relatively unlikely that carriers will allow someone to travel who is inadequately documented, in order that they may make an asylum claim upon arrival, notwithstanding that carriers’ penalty regimes often contain an exception for passengers who succeed in such claims.113

3. Interdiction at sea A third form of extraterritorial immigration control is the interdiction of vessels at sea – that is, action taken by states to prevent sea-borne migrants from reaching their intended destination. This kind of enforcement activity differs from that discussed in previous sections, in that it is concerned with migration by irregular channels, rather than with passengers seeking to travel by ‘regular’ routes. As a consequence, the primary role of officials from the state of destination is not to take a decision on whether the individual should be admitted to the state’s territory. Rather, the destination state’s primary objective is to prevent migrants from reaching the state’s territory by irregular means. 109 110

111

112 113

Scholten and Minderhoud, 138. Department of Homeland Security, “United States and Spain Formalize Arrangement to Interdict High-Risk Travelers”, press release, 1 July 2009. For a discussion of the latter dimension, see Erika Feller, “Carrier Sanctions and International Law” International Journal of Refugee Law 1 (1989): 48. Naraine v. Hoverspeed [2000] EuLR 321 (Court of Appeal). In the case of the United Kingdom, see UK Border Agency, Borders Force Operations Manual: Carriers’ Liability, section 9, available at http://www.ukba.homeoffice.gov.uk/policyandlaw/ guidance/borderforceoperationsmanual/ (accessed 3 November 2009).


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Probably the first case of systematic enforcement action at sea against irregular migration was that taken by Britain against unauthorised Jewish arrivals to Palestine in the late 1930s and between 1945 and 1948.114 These British measures included the deployment of its navy, first between July and September 1939, and then from October 1945.115 The main objective of these controls was not interdiction, but interception – that is, the identification of vessels, with a view to the arrest of vessels and their passengers once they entered territorial waters. The practical result of these interceptions for most passengers was deportation, principally to Cyprus in the postwar phase. Operations in international waters were constrained by Britain’s position as a leading maritime power, which led it to defend the freedom of the high seas. For example, in 1946, the British government rejected a proposal from its admiralty to permit searches and arrests in international waters where vessels lacked an identifiable master or a recognised flag. The official policy remained that police action in international waters required either a state of war or treaty authorisation by the flag state.116 A second leading case of immigration enforcement at sea concerned the Vietnamese ‘boat people’ who attempted to reach neighbouring countries at various periods between 1975 and 1992.117 In this case, forms of interdiction were practiced by destination states, through refusals to allow vessels to land, and through ‘push backs’ of boats to international waters. Singapore adopted an especially restrictive policy towards boat arrivals from Vietnam, and refused to allow migrants’ vessels to land as early as May 1975.118 Malaysia and Thailand also engaged in policies of taking boats out to international waters, particularly in 1978–1979 and 1988–1989.119 These latter measures were among the main reasons for the conclusion of international arrangements for the Vietnamese in 1979

114

115

116

117

118

119

On the history of the period, see Jacob Hurewitz, The Struggle for Palestine (New York, Norton: 1950). The immigration control measures in the postwar phase are discussed in Arieh Kochavi, Post-Holocaust Politics: Britain, the United States and Jewish Refugees, 1945–1948 (Chapel Hill, University of North Carolina Press, 2001). See Ninian Stewart, The Royal Navy and the Palestine Patrol (London, Frank Cass: 2002) for an official navy account of these operations. For the postwar period see Fritz Liebreich, Britain’s Naval and Political Reaction to the Illegal Immigration of Jews to Palestine, 1945–1948 (London, Routledge: 2005) 91–92, particularly in relation to archive material. Stewart, 89–92 and Liebreich, 122–126. In practice, the rules were relaxed informally, so as to allow the arrest of vessels near territorial waters (up to 16 nautical miles). See generally, Bruce Grant, The Boat People: An ‘Age’ Investigation (Harmondsworth, Penguin: 1979) and W.C. Robinson, Terms of Refuge: The Indochinese Exodus and the International Response (London, Zed Books: 1998). General Accounting Office, The Indochinese Exodus: A Humanitarian Dilemma (24 April 1979), 9. Robinson, 42–43, 181–183, 190.

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and 1989, based on processing in the region, and resettlement in western countries for those accepted as refugees. The responses to Jewish migration to Palestine and to the Vietnamese boat people had in common that the destination states were not taken to be covered by obligations of non-refoulement. The remainder of this section will consider more recent cases of interdiction strategies where the avoidance or minimisation of responsibility under international refugee law has been part of states’ motivations: US interdiction policies since 1981, Australia’s interdiction policies between 2001 and 2007, and ongoing enforcement action led by Italy and Spain aimed at migration from Africa. United States interdiction United States interdiction policies – discussed in detail in Niels Frenzen’s contribution to this volume – have been in effect since 1981, and have mainly concerned persons making irregular journeys from Caribbean countries. These began as a belated reaction to the ‘Mariel boatlift’ from Cuba in the summer of 1980, when an estimated 124,776 persons reached the Florida coast.120 The Mariel boatlift was followed by a decision to curtail immigration by Haitians, with respect to whom there were not the same political reasons to allow admission. In September 1981, after an agreement with Haiti, which allowed the United States to interdict vessels departing from its territory, President Reagan issued a executive order authorising interdiction in order to prevent “the entry of undocumented aliens from the high seas”.121 In October, the Coast Guard began patrolling the Windward Passage, to the west of Haiti and to the east of Cuba.122 Interdiction operations have continued against irregular migration by Haitians since 1981. Interdiction has also been practiced in the Straits of Florida since an attempted re-run of the Mariel boatlift in August 1994.123 A third strand is the interdiction of those seeking to travel through the Mona Passage from the Dominican Republic to Puerto Rico, which began in April 1995.124 US Coast Guard figures show that, over the period from 1982 to September 2009, a total of 120

121

122 123 124

Kathleen Newland, “The US and the Caribbean,” in Joanne van Selm and Betsy Cooper, The New “Boat People”: Ensuring Safety and Determining Status (Washington DC, Migration Policy Institute: 2006) 72. Agreement of 23 September 1981, 33 UST 3559, TIAS 10241; Executive Order 12324, 46 Federal Register 48109 (29 September 1981). “Vessel Begins Vigil for Aliens Today”, New York Times, 10 October 1981. Newland, 73–74. US Coast Guard, “Alien Migrant Interdiction”: http://www.uscg.mil/hq/cg5/cg531/amio.asp (accessed 3 November 2009).


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114,718 Haitians, 66,702 Cubans and 35,756 Dominicans were interdicted as a result of its operations.125 The Coast Guard has also engaged in immigration control on vessels travelling from China, particularly to Guam, and interdicted 5,912 Chinese nationals over the same period.126 In addition, since 1999, a total of 8,257 Ecuadorian nationals have been interdicted on immigration grounds, presumably primarily in the Pacific.127 One legal question posed by United States interdiction on the high seas is whether it has a basis in international law. The 1981 executive order, and its successor in February 1992, expressly limited interdiction to vessels without nationality, or with whose flag state there were “arrangements” authorising interdiction.128 In the case of Haiti, the agreement of September 1981 allowed the detention and return of Haitian flag vessels and their passengers, where the US authorities determined after a preliminary visit that “an offense against United States immigration laws … has been or is being committed.” That international agreement was however terminated by the Aristide government in 1994, after the US suspended its bar on the return of refugees between 1992 and 1994.129 In the case of Cuba, permission for interdiction arguably comes from a joint statement between the two governments in May 1995 on the “normalization of migration”. This text provided that “effective immediately, Cuban migrants intercepted at sea by the United States and attempting to enter the United States will be taken to Cuba.”130 In the case of the Dominican Republic, a May 2003 agreement gives general permission to United States vessels to board Dominican vessels on the high seas which are suspected of engaging in migrant smuggling, and to return those on board to the Dominican Republic.131 For countries other than Cuba and the Dominican Republic, if there is a current legal basis for interdiction, it must either lie in individual authorisations, or derive from lawful

125

126

127 128

129

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US Coast Guard, “Alien Migrant Interdiction: Total Interdictions – Fiscal Year 1982 to Present”: http://www.uscg.mil/hq/cg5/cg531/AMIO/FlowStats/FY.asp (accessed 3 November 2009). Ibid. Not all of these interdictions of Chinese nationals may have taken place on vessels travelling directly from China. Ibid. Only two Ecuadorians had been interdicted before 1999. Executive Order 12324, section 2; Executive Order 12807, 57 Federal Register 23133 (1 June 1992), section 2. See Executive Order 12807 (57 Federal Register 23133, 14 May 1992), discussed in Stephen Legomsky, “The USA and the Caribbean Interdiction Program” International Journal of Refuge Law 18 (2006): 677, 681–682 and “Aristide Renounces Treaty Allowing US To Return Haitians”, Interpreter Releases, 11 April 1994, 481. “Joint Statement With the Republic of Cuba on Normalization of Migration”, 2 May 1995, 31 Weekly Compilation of Presidential Documents 752. Agreement concerning cooperation in maritime migration law enforcement, 20 May 2003, available on Lexis (2003 UST Lexis 32), Articles 8 and 10.

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boarding under agreements concerning traffic in illicit drugs, such as that with Haiti.132 Specific provision for refugees has to date been made in two international agreements permitting the interdiction of migrants. The September 1981 agreement with Haiti included the statement that “under these arrangements the United States Government does not intend to return to Haiti any Haitian migrants whom the United States authorities determine to qualify for refugee status.” Similarly, the 2003 agreement with the Dominican Republic provides that there should not be involuntary return of a person who has “a well-founded fear of persecution” on Geneva Convention grounds, or “there are substantial grounds for believing that the person would be in danger of being subjected to torture.”133 In addition, irrespective of specific international agreements, US practice has generally been to allow those interdicted in the Caribbean to make known their desire for protection. It appears that those interdicted on their way from Cuba or China have been informed of this possibility automatically, whereas those arriving from elsewhere have been required to spontaneously indicate a desire for protection when taken on board Coast Guard vessels (the ‘shout test’).134 Since 1994, individuals who indicate a protection need have generally been transferred to immigration detention at Guantánamo Bay for an assessment of their case.135 If successful, they have been resettled somewhere other than the United States.136 In practice, however, success rates have been very low. For example, between May 1995 and July 2003, only 170 Cuban refugees were resettled from Guantánamo Bay.137 Equally, between February and July 2004 – at a time when an armed rebellion in Haiti had forced its president to leave the country – of 2830 Haitians interdicted, only 35 cases were examined, and only six persons were recognised as refugees.138 132

133 134

135 136 137

138

Agreement between the United States of America and the Republic of Haiti concerning Cooperation to Suppress Illicit Maritime Drug Traffic, signed on 6 May 1997 (available on Westlaw, 2002 WL 31504914). Agreement of 20 May 2003, Article 10. Joanne van Selm and Betsy Cooper, The New “Boat People”: Ensuring Safety and Determining Status (Washington DC, Migration Policy Institute: 2006), 11–12. Legomsky, 682–684. Ibid, 12–13. Ruth Wasem, Cuban Migration to the United States: Policy and Trends, Congressional Research Service Report R40566 (2 June 2009), 4. Newland, 77. Also in relation to the 2004 period, Frelick notes that of an initial group of 905 Haitains interdicted, only three passed a ‘shout’ test, and all of those failed a ‘credible fear’ screening on board: Bill Frelick, “‘Abundantly Clear’: Refoulement” Georgetown Immigration Law Journal 19 (2005): 245, 246.


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The practical limitations to extraterritorial processing are significant in part because a feature of United States approach is that the Coast Guard is permitted to interdict even within United States territorial waters. The reason for allowing this form of interdiction is that, under the so-called ‘wet foot/ dry foot’ theory, it is only upon reaching shore that the protections of the Immigration and Nationality Act 1952 apply.139 The difficulty is that international law guarantees against non-refoulement must be taken to apply at least within territorial waters. Where interdiction occurs within territorial waters, the justification for United States policy must be that the system of extraterritorial processing on its own is sufficient to meet non-refoulement obligations. The evidence for that must be considered weak, however. In one period – May 1992 to May 1994 – the United States openly returned migrants to Haiti, after interdiction on the high seas, without permitting a claim for protection. This was in response to a large outflow and the exhaustion of the available detention space at Guantánamo Bay. It was this phase of the interdiction policy which led to the Supreme Court’s decision in Sale in 1993, in which it held that neither the Immigration and Nationality Act 1952 nor Article 33 of the Geneva Convention constrained return from international waters.140 In relation to Article 33, the Supreme Court’s conclusion, based on an analysis of its language and of the negotiating history, was that the phrase “No Contracting State shall … return (‘refouler’)” only covered someone’s who was being turned away from the state’s territory. While the motivation for the United States interdiction programme has been the prevention of irregular migration, that objective has throughout had a significant legal component. In the period prior to the decision to introduce interdiction in 1981, the US immigration authorities had faced successful legal challenges to attempts both at mass refusals of asylum to Haitians, and at their mass expulsion.141 That litigation led directly to the proposal for interdiction in

139

140 141

For the legal opinion setting out this interpretation, see Department of Justice, “Immigration Consequences of Undocumented Aliens’ Arrival in United States Territorial Waters” (13 October 1993), available at http://www.usdoj.gov/olc/nautical.htm (accessed 3 November 2009). Sale v Haitian Centers Council 509 US 155 (1993). The litigation is discussed in Naomi Flink Zucker, ‘The Haitians versus the United States: The Courts as Last Resort,” Annals of the American Academy of Political and Social Science 467 (1983): 151. The key decision was Haitian Refugee Center v Civiletti, 503 F Supp 442 (Southern District of Florida, 2 July 1980), affirmed by 676 F2d 1023 (5th Circuit of Appeals, 14 May 1982).

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the July 1981 report of a presidential task force on immigration and asylum. According to the report: The purpose of an interdiction program would be both to deter directly further unlawful migration by expeditiously returning migrants to Haiti, and incidentally, to curtail the flow of aliens into administrative and judicial proceedings in the United States. Although required by the UN Protocol and Convention to adjudicate refugee claims prior to returning a claimant to his homeland, if interdiction occurs outside of US territorial waters, the determination would not be governed by the Immigration Act.142

Interdiction continues to remain preferable from the authorities’ perspective. While the mechanism of ‘expedited removal’ (discussed above) was extended in 2002 to those arriving irregularly by sea, it remains subject to the possibility to claim asylum.143 In addition, those who have reached the United States are likely to find it easier to indicate a protection need – and thereby to start the process – than those who have been interdicted. Moreover those who succeed in an asylum claim will be able to stay in the United States, whereas those who succeed extraterritorially are likely to be resettled in another country. Australia’s ‘Pacific solution’ United States policies of interdiction and extraterritorial processing have provided a model for other states in framing a response to irregular migration by sea. This was most obviously true of Australia in the period of the Howard Government’s ‘Pacific solution’ from 2001 to 2007 – a story discussed in detail by Susan Kneebone in this collection.144 The ‘Pacific solution’ mainly concerned vessels arriving from Indonesia, and typically involved migrants with plausible claims to protection as refugees, and who mainly came from Afghanistan, Pakistan and Sri Lanka. The strategy began with a much-discussed incident in August-September 2001: when the Tampa, a Norwegian commercial vessel, entered Australian waters in order to disembark 433 Afghan migrants – which it had previously rescued – at Christmas Island, it was boarded by Australian troops, who ultimately transferred the migrants to a naval vessel, which took them for processing in Nauru.145 142 143

144

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Quoted in Flink Zucker, 159. “Notice Designating Aliens Subject to Expedited Removal”, 67 Federal Register 68924 (13 November 2002). See also Penelope Mathew, “Legal Issues Concerning Interception” Georgetown Immigration Law Journal 17 (2003): 221 and Tara Magner, “A Less than ‘Pacific’ Solution for Asylum Seekers in Australia” International Journal of Refugee Law 16 (2004): 53. For an official summary, see Parliament of Australia, Senate Select Committee on a Certain Maritime Incident: Main Report (23 October 2002), 1–3. For an international law analysis, see Richard Barnes, “Refugee Law at Sea” International and Comparative Law Quarterly 53 (2004): 47.


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The core of the ‘Pacific solution’ approach was extraterritorial processing in Nauru and on Manus Island in Papua New Guinea. Protection claims by these persons were at first assessed by the UNHCR, and then by the Australian authorities.146 Crucially, however, these procedures did not include any avenue of legal challenge before an Australian tribunal or court.147 By mid-2006, 1547 persons had been processed in the two locations, of whom 482 had returned to their countries of nationality and 1062 had been resettled – “mainly” to Australia and New Zealand.148 In 2007, a further 90 persons were transferred to Nauru, of whom 81 were found to be entitled to protection, and were allowed to settle in Australia by the new Rudd Government in December 2007.149 The ‘Pacific solution’ was brought to an end by the Rudd Government soon after it came to power in November 2007. The new government’s decision to do so was motivated in part by the transport and detention costs associated with processing in Nauru and Papua New Guinea.150 Since early 2008, those interdicted at sea, or who reach an excised island, have instead been taken for ‘offshore’ processing on Christmas Island.151 Access has been given to lawyers and interpreters, and there is the prospect of settlement in Australia if an applicant is successful. Nevertheless, the fact that Christmas Island is ‘excised’ from the migration zone means that their claims continue to be assessed outside of the standard legal mechanisms governing asylum claims.152 Interdiction at sea has been central to Australia’s control policy throughout the entire period since the Tampa incident in 2001. The legal basis for interdiction is to be found in legislation adopted in 1999 in response to unauthorised boat arrivals that year.153 The 1999 legislation sought to make maximum use of

146

147

148

149

150 151 152 153

Susan Kneebone, “The Pacific Plan: The Provision of ‘Effective Protection’?” International Journal of Refugee Law 18 (2006): 696, 715. This is the effective consequence of the excision of offshore islands from the coverage of the Migration Act 1958: see section 5(1) of the 1958 Act, as amended by the Migration Amendment (Excision from Migration Zone) Act 2001 and the Migration Amendment Regulations 2005 (No 6), SLI 2005 No 171. For a discussion, see Ernst Willheim, “‘Don’t Bother Knocking’: Australia’s Response to Asylum Seekers” in The Challenge of Asylum to Legal Systems, ed Prakash Shah (London, Cavendish: 2005), 252–253. Department of Immigration and Multicultural Affairs, Annual Report 2005–06, p 176. Two others remained on Nauru, while a further migrant died of natural causes. “Pacific Solution ends but tough stance to remain”, Sydney Morning Herald, 8 December 2007. “Refugee status given to Burmese; Swift end to ‘Pacific Solution” The Age, 10 December 2007. “Government Denies Back Flip on Island Excision”, The Age, 21 February 2008. See the discussion in Susan Kneebone’s chapter in this volume. Sections 245A–245H of the Migration Act 1958, inserted by the Border Protection Legislation Amendment Act 1999 and Andreas Schloenhardt, “Australia and the Boat People: 25 Years of Unauthorised Arrivals” University of New South Wales Law Journal 23 (2000): 33, 52–53.

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the possibilities given by international law for interdiction outside of territorial waters.154 In particular, it permitted the boarding of foreign vessels in Australia’s contiguous zone, and of vessels without nationality on the high seas, and allowed the ‘hot pursuit’ of a vessel which left the contiguous zone for the high seas. In practice, interdiction within territorial waters and the contiguous zone was the preferred option in interdiction operations after the Tampa incident in 2001.155 By contrast, the subsequent approach – against the background a policy of processing on Christmas Island – has included greater willingness to engage in operations beyond the 24- mile limit.156 During the period immediately after the Tampa incident, the Australian authorities also sought to tow vessels and their passengers back to Indonesia. The statutory basis for these ‘tow backs’ was in legislative amendments adopted at that time, which allowed persons on board detained vessels to be taken “to a place outside Australia.”157 Four of the 12 vessels detected after the Tampa during 2001 in or near Australian waters were successfully towed back, and there was one unsuccessful attempt.158 There was also at least one subsequent ‘tow back’ – involving the Minasa Bone – in November 2003.159 Tow-backs were also threatened in April 2006, after a group of migrants arrived from the Indonesian territory of West Papua successfully claimed asylum.160 Australia’s ‘Pacific solution’ again shows how the desire to avoid international and domestic legal guarantees can lead to extraterritorial immigration control practices. The occasional tow-backs to Indonesia were plainly motivated by the desire to avoid any legal responsibility for asylum seekers and recognised refugees. 154

155

156

157

158

159

160

For a discussion of the law of the sea and migration control see the contribution by Richard Barnes to this volume. See the account of the Australian Defence Forces’ operating procedures in 2001 in Select Committee on a Certain Maritime Incident: Main Report, 25–27. This is apparent for example from these recent press releases of the Minister for Home Affairs: “Border Protection Command Boards Vessel”, 12 September 2009 (rescue, 82 miles off Ashmore Island) and “Border Protection Command Boards Vessel”, 17 September 2009 (assistance, 78 miles off Darwin). Migration Act 1958, section 245F(9), as amended by the Border Protection (Validation and Enforcement Powers) Act 2001, Schedule 2. This amendment was intended to address the lack of a statutory basis for the transfer of interdicted persons to sites of extraterritorial processing. In litigation concerning the Tampa incident, this gap had been overcome only by the debatable finding that the state’s actions were protected by a prerogative power to exclude aliens: see Ruddock v. Vadarlis [2001] FCA 1329, discussed in Susan Kneebone’s chapter. Jessica Morris, “To Deter and Deny: Australia and the Interdiction of Asylum Seekers” Refuge 21: 4 (2003): 35, 46. “Minasa Bone Returns to Indonesia”, Minister for Foreign Affairs press release, 9 November 2003. “Navy May Force Papuan Boats Back: Minister”, Sydney Morning Herald, 6 April 2006.


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More importantly, Australia’s introduction of extraterritorial processing was designed to avoid rights of access to domestic courts. Much as with the United States policies, the Australian strategy between 2001 and 2007 implied a restrictive interpretation of international law obligations – that it permitted individuals to be taken from inside the territory or territorial waters to a site of extraterritorial processing, and that limited procedural guarantees were possible while there. European interdictions A final set of interdictions at sea to consider are those aimed at migrants seeking to reach two of the Southern member states of the European Union – Italy and Spain.161 The first systematic attempts at immigration control at sea in Europe were Italian interdiction operations from 1997, in response to the arrival of an estimated 30,000 migrants by sea from Albania in January-April that year.162 Albania’s authorisation for the interdiction and return of these vessels was given an agreement in March 1997 between the two states. In practice, interception occurred in both international and Italian waters, while the Albanian authorities co-operated through disruption activity aimed at preventing boats from departing.163 Even after 1997, significant numbers of arrivals from Albania continued to be detected in Puglia: more than 106,000 in the five years 1998–2002, with a peak of 46,481 in 1999.164 These migration flows largely came to an end by 2002, ultimately because of an improvement of economic and social conditions in Albania, itself linked to Italian support for Albanian development.165 The second zone of large-scale sea migration to Italy has been from North Africa towards Lampedusa and Sicily. In the early 1990s, these arrivals were made up of North Africans departing from Tunisia, but that flow ceased around 1998 as a result of disruption activity in Tunisia, against a background of co-operation between the two states.166 From 2002, larger numbers, mainly from sub-Saharan 161

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164 165 166

There have also been claims that Greek and Maltese coastal authorities have engaged in interdiction practices: see Human Rights Watch reports Stuck in A Revolving Door; Iraqis and other Asylum Seekers and Migrants at the Greece/ Turkey Entrance to the European Union (November 2008), 41–47 and Pushed Back, Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers (September 2009), 38–39. As these states have not adopted a policy of interdiction, however, they are not considered here. See the chapter by Alessia di Pascale in this volume and Derek Lutterbeck, “Policing Migration in the Mediterranean” Mediterranean Politics 11 (2006): 59, 62. Paola Monzoni, “Sea-Border Crossings: The Organization of Irregular Migration to Italy” Mediterranean Politics 12 (2007): 163, 172. Ibid, 167. See the chapter by Alessia di Pascale in this collection. Monzoni, 177.

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African countries, began to arrive on the longer sea route from Libya.167 In total, 141,245 migrants were recorded as arriving by sea in Lampedusa or Sicily between 2002 and 2008, with a peak of 34,600 in 2008.168 Until early 2009, the Italian coastal authorities generally permitted migrants to land, and processed any resulting asylum claims, prior to attempts at repatriation.169 This approach was however the subject of a dramatic change on 6 May 2009, as the Italian coastal authorities began intercepting migrants in international waters off Lampedusa, taking them on board, and returning them to Libya.170 By August 2009, it was reported that around 14 such operations had taken place, involving around 800 migrants.171 The background to these developments was an agreement reached between Italy and Libya in December 2007 which provided for “joint patrols” off Libya, and for the provision of up to six vessels by Italy to the Libyan coast guard.172 The 2007 agreement did not, however, expressly provide for the return of those who were closer to Italian territory than to Libya, and neither did it appear to contemplate return by Italian-only operations. These possibilities appear instead to be based on an unpublished “implementation protocol”, agreed when the Italian Interior Minister, Roberto Maroni, visited Tripoli in February 2009.173 The new strategy has led to a reduction in arrivals from Libya, which fell by 90% between May-August 2008 (over 15,000) and May-August 2009 (1,400).174 The strategy has been criticised for the lack of investigation of possible claims to protection – or even the nationalities – of those returned to Libya, particularly given the absence of an asylum mechanism in Libya.175

167 168

169

170

171

172

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175

Ibid, 177–178. For individual years to 2007, see Paola Monzoni, Il Traffico di Migranti per Mare verso l’Italia: Sviluppi recenti (2004–2008), (CESPI working paper 43/2008), 7. For 2008, see Frontex, Annual Report 2008, 12. There were some examples of presumed collective repatriation from Lampedusa to Libya in 2004 and 2005: see the chapter by Alessia di Pascale. UNHCR, “UNHCR deeply concerned over returns from Italy to Libya,” press release, 7 May 2009. “Respinti finora 800 extracomunitari: Quasi tutti avevano diritto d’ asilo”, Repubblica, 25 August 2009. The Italian text of the agreement can be found at http://www.ilvelino.it/archivio/documenti/ allegato_documento_621.pdf (accessed 3 November 2009). For this conclusion, see Fulvio Vassallo Paleologo, “Dopo i migranti Maroni respinge lo stato di Diritto”, 14 September 2009, available at http://www.meltingpot.org/articolo14803 .html (accessed 3 November 2009). Minister dell’Interno, “Immigrazione irregolare dalla Libia: Diminuiti dal 90% gli sbarchi,” press release 9 September 2009. See generally Human Rights Watch, Pushed Back, Pushed Around (September 2009), above.


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Spain has also addressed recent migration by sea through co-operation in control with states of departure – a phenomenon examined in Paula García Andrade’s contribution to this collection. Significant levels of irregular migration across the Strait of Gibraltar had already begun in the 1990s, before reaching a peak in 2001, when 14,405 migrants were detained having arrived by sea from Morocco.176 Spain’s response included an agreement in 2003 with Morocco which permitted joint patrols in Moroccan waters. Even still, many migrants have continued to be detected on this route, with only a gradual decline from the 9,788 detained in 2003 to 4,243 in 2008.177 Spain has responded in a similar fashion to arrivals to the Canary Islands.178 In the 1990s, there were a small number of arrivals there, mainly coming directly from the closest points on the African continent in Morocco and Moroccancontrolled Western Sahara. From 2000 onwards, the numbers started to increase, and generally involved sea journeys of several hundred miles from departure points further south. In the years from 2001 to 2008, the total number of arrivals to the Canary Islands was 89,851, with a peak of 31,678 in 2006.179 Spain’s attempted solution was again to develop joint patrol arrangements with countries of departure. As García Andrade’s explains, arrangements of this kind have been entered into with Mauritania and Senegal (both 2006), Cape Verde (2007), Gambia, Guinea Bissau and Guinea Conakry (all 2008). Here too, substantial migration has nevertheless continued. In 2008, while 5,969 persons were reported diverted back to Mauritania and Senegal, 9,181 migrants arrived by sea in the Canary Islands, which was roughly the average for the period from 2001.180 Legal factors have played a significant role in the Italian and Spanish adoption of strategies of interdiction, rather than allowing migrants to arrive, and then processing them as irregular entrants. As elsewhere, these strategies have partly been about avoiding responsibility for asylum claims. This appears especially relevant in the case of Italy: it has been reported that 75% of arrivals in Lampedusa in 2008 made applications for asylum, and that around 50% of applicants were

176

177 178

179 180

For the period up to 2000, see Lutterbeck, 62–63. Figures for individual years from 2001 are in Asociación Pro Derechos Humanos de Andalucía (APDHA), Derechos Humanos en la Frontera Sur 2008 (2009), 93. These are based on official data, published most recently in Ministerio del Interior, “Balance de la Lucha Contra la Inmigración Ilegal 2008”, available from http://www .mir.es/DGRIS/Balances (accessed 3 November 2009). APDHA, 93. For a summary of these migration flows, see Jørgen Carling, “Unauthorized Migration from Africa to Spain” International Migration 45 (2007): 3, 24–26. APDHA, 93. Frontex, “HERA 2008 and Nautilus 2008 Statistics”, news release 17 February 2009 and APDHA, 93.

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granted some form of protection.181 In the case of Spain, by contrast, it appears that irregular migrants arriving by sea very often do not claim asylum: for example, only 1377 applications for refugee status were made in the Canary Islands between 2006 and 2008, which was only 2.6% of the number of arrivals there over the same period.182 For the Italian and Spanish authorities, domestic legal limits to detention for the purposes of identification and expulsion are a further reason for interdiction strategies. In Italy, a change in the law in 2002 increased the maximum period that an irregular migrant could be detained from 30 days to 60 days, after which they had to be released and ordered to leave the territory.183 Spain has a similar system, with a maximum period of detention of 40 days.184 At the time of writing, both countries have recently taken steps to increase these limits. In Italy, the maximum detention period was increased to 180 days by legislation adopted in July 2009.185 Meanwhile, in Spain, a government bill is before parliament which would increase the maximum detention period to 60 days.186 A final point with respect to Italian and Spanish interdictions concerns Frontex (the European border agency), which is analysed in detail in the chapter by Anneliese Baldaccini in this volume. Frontex has been involved in the delivery of Spanish-led interdiction operations off North and West Africa.187 It also runs operation NAUTILUS from Malta, which may be thought to make Italian interdiction more likely by identifying or deflecting migrants’ vessels – even if Frontex claims no direct involvement in Italy’s “diversion activities”.188 Indeed, prior to Italy’s agreements with Libya, Frontex had itself sought to negotiate a joint arrangement to enable interdiction.189 While interdiction is ultimately a national 181

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183

184

185 186 187

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UNHCR, “UNHCR concerned over humanitarian situation in Lampedusa, Italy” press release, 23 January 2009. The application data is in UNHCR, “Refugee Protection and International Migration: A review of UNHCR’s role in the Canary Islands, Spain” (April 2009), para 23. Article 14(5) of the ‘Single Text’ on immigration (Legislative Decree no. 286 of 25 July 1998), as amended by Law no 189 of 30 July 2002. Article 62(2) of the Organic Law 4/2000 of 11 January 2000 on the rights and liberties of foreigners in Spain. Amendment to Article 14(5) by Law no 94 of 15 July 2009. See Boletín Oficial de las Cortes Generales no 31-1, 1 July 2009. See the brief information on operations HERA, MINERVA and INDALO in Frontex, Annual Report 2008, 40. Ibid, for brief information on operation NAUTILUS. Frontex’s statement in relation to Italian interdiction is “Frontex not involved in diversion activities to Libya”, press release 21 September 2009. Frontex, Frontex-Led EU Illegal Immigration Technical Mission to Libya 28 May–5 June 2007, especially para 2.5, available at http://www.statewatch.org/news/2007/oct/eu-libya-frontexreport.pdf (accessed 3 November 2009).


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policy choice of Italy and Spain, it is clear that Frontex has increased the possibility for it to occur.

4. Conclusion: Restoring legal guarantees? The proliferation of extraterritorial immigration control practices, particularly over the past two decades, can partly be explained by reference to factors other than legal guarantees. We have seen in this chapter that in many circumstances – such as preclearance operations, or visas – the advantages to travellers can be a reason for such controls, because their journeys are not held up on arrival, or because they gain access a broader range of destinations. Developments in digital technology – including biometrics – are also relevant, in that they permit disparate immigration decision-makers to communicate with central authorities, and to check databases, in the home state. It is also clear that extraterritorial control leads to a legal regime which is favourable to intended destination states. By intervening before arrival, a destination state will hope to avoid the legal and logistical problems associated with returning someone to their state of nationality or departure. Specifically, return may be difficult to effect unless the individual’s nationality and/ or travel route can be identified, and unless there are arrangements for readmission with the state in question.190 In addition, this chapter has shown how strategies of extraterritorial control enable destination states to free themselves from legal guarantees otherwise available to migrants. These strategies generally set out to avoid international law obligations concerning non-refoulement. They also typically seek to avoid domestic legal guarantees, such as rights of appeal and restrictions on detention, which are either freestanding, or which implement the principle of non-refoulement. Some combination of all these elements – avoidance of problems with return, non-refoulement obligations and domestic guarantees – has played a role in almost every initiative taken since the mid-1980s: the expansion of visa requirements, the introduction of carriers’ obligations, the introduction of juxtaposed controls for travel to the United Kingdom, and strategies of interdiction at sea by the United States, Australia, Italy and Spain. If we assume that forms of extraterritorial immigration control are likely to continue, is there a normative basis for the restoration of lost legal guarantees to those who face extraterritorial action? One concrete question concerns the

190

On the international legal framework governing return, see Gregor Noll, “Return of Persons to States of Origin and Third States” in Migration and International Legal Norms, ed. T. Alexander Aleinikoff and Vincent Chetail (The Hague: TMC Asser Press, 2003).

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legal position of persons refused a visa or permission to travel, or who are prevented from embarking. In normative terms, it is clear that any substantive rights of such persons – particularly those deriving from fundamental rights provisions or from national immigration law – ought to remain applicable in extraterritorial decision-making. Otherwise, the state will have escaped its legal obligations to individuals by the device of changing the location of decision-making. In addition, respect for the rule of law in these cases requires that effective legal procedures be available against negative decisions.191 That this is not a utopian suggestion is shown by the provision made for appeals within the European Union’s Visa Code, discussed above. Indeed, the very technological developments which support remote decision-making also strengthen the practical possibility to provide legal advice and legal procedures to those refused immigration permission extraterritorially. A second concrete question concerns the applicability of the principle of nonrefoulement where control takes place extraterritorially. A number of developed states – including the United States, the United Kingdom and Italy – deny that duties of international protection have any extraterritorial reach.192 The legal response to these developments has been to insist that international law guarantees of non-refoulement do apply extraterritorially. The reasoning in Sale has been criticised – including by den Heijer in this volume – on the grounds that Article 33 refers to return/refoulement “in any manner whatsoever”, and that it should be interpreted in light of its humanitarian purpose.193 A parallel argument has been developed with respect to human rights instruments – in particular, Article 3 of the European Convention on Human Rights – that a state’s jurisdiction and responsibility arise from effective control over an individual or place, rather than from territory.194 Writing in this volume, Anja Klug and Tim Howe bring these lines of analysis together, through the application of the expansive test of

191

192

193

194

See generally Jorrit Rijpma and Marise Cremona, “The Extra-Territorialisation of EU Migration Policies and the Rule of Law” EUI Working Papers, Law 2007/01. The conduct of the United States and Italy reflecting this position is discussed in the text, above. In the case of the United Kingdom, the narrow reading of Article 33 in Sale (above) was approved by the House of Lords in R v. Immigration Officer Prague Airport, ex parte European Roma Rights Centre [2004] UKHL 55, in relation to a temporary preclearance operation by UK immigration authorities at Prague airport. See in particular UNHCR Advisory Opinion on the Extraterritorial Application of NonRefoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2007) and Andreas Fischer-Lescao, Tillmann Löhr and Timo Tohidupur, “Border Controls at Sea: Requirements under International Human Rights Law and Refugee Law” International Journal of Refugee Law 21 (2009): 256, 265–271. Fischer-Lescao, Löhr and Tohidupur, 272–277.


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responsibility in international human rights law to the interpretation of Article 33 of the Geneva Convention. It is clear that the rejection of any responsibility by states acting extraterritorially is normatively unsustainable. This is for the obvious reason that that position would give states an incentive to manufacture a vacuum in international protection. In other words, they would be free to create a situation in which an individual in principle qualified for international protection, but no state was responsible for its provision. The opposite proposition – the application of the non-refoulement principle to all extraterritorial immigration action – may however also be too broad. One situation in which this proposition ought to be qualified is where there is a ‘territorial’ state which could itself offer an acceptable level of protection. The logic of non-refoulement does not require a state acting extraterritorially to protect individuals on the territory of another state, where that other state could itself do so. In particular, in such circumstances there may not be a causal link between the actions of the destination state and the possible refoulement.195 It may therefore be best to treat extraterritorial responsibility for non-refoulement as the default position, applicable only where there is no territorial state which can itself offer effective protection. Secondly, the extension of responsibility for non-refouelement to every extraterritorial action poses difficulties in the context of irregular migration by sea. If all extraterritorial action by states gives rise to legal responsibility, states will have an incentive not to engage in safety-oriented surveillance, or in rescue operations – particularly where several states are potentially responsible for surveillance and rescue. Alternatively – to the extent that safety-oriented surveillance and rescue remain effective – migrants will have an incentive to engage in risky journeys, in the hope of benefiting from non-refoulement after rescue. A comprehensive humanitarian solution to the dilemmas posed by irregular migration by sea must include both respect for non-refoulement, and also respect for the safety of human life. Here too, it may be preferable to treat extraterritorial responsibility as the default position, subject to context-specific arrangements, which respect nonrefoulement and provide for the sharing of protection and safety obligations among states.

195

For a discussion of the implications of a causation requirement for extraterritorial decisionmaking, see generally Gregor Noll “Seeking Asylum at Embassies: A Right to Entry under International Law?” International Journal of Refugee Law 17 (2005) 542.

Extraterritorial Immigration Control in the 21st Century: The Individual and the State Transformed Valsamis Mitsilegas 1. Introduction While practices of extraterritorial immigration control have been increasingly employed by States around the world in the past two decades, the 21st century saw a transformation of such controls. A key factor behind this transformation has been the growing securitisation of migration and mobility in the post-9/11 world, intensified in the light of the impact of globalisation on population flows. Focusing on the US, the UK and the European Union, this chapter will aim to map these changes in extraterritorial immigration control exercised in the West, stressing in particular the links and convergence between models of extraterritorial immigration control globally. In this light, the chapter will assess the consequences of these changes for both the exercise of immigration control by the State and for the position of the individuals affected.

2. Extraterritorial Immigration Control and Security The use by States of mechanisms of extraterritorial immigration control such as visas and the imposition of obligations on carriers has been increasingly visible world-wide since the 1990s and its impact on shifting the border, in particular at the level of the European Union, has been well documented.1 However, the turn of the century and the post-9/11 security agenda introduced a number of new features in immigration control, including a renewed focus on extraterritoriality and an increasing move from the control of migration to the surveillance of movement. In this new context of ‘border security’, the preventative aim of

1

See in this context the seminal work of Elspeth Guild and Didier Bigo: in particular Guild’s 2001 inaugural lecture at the University of Nijmegen, Moving the Borders of Europe (downloadable from http//cmr.jur.ru.nl/cmr/docs/oratie.eg.pdf ); and more recently the contributions in Didier Bigo and Elspeth Guild (eds), Controlling Frontiers. Free Movement into and within Europe, (Aldershot and Burlington: Ashgate, 2005).


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extraterritorial immigration control has become even more central, and has been linked with an increased emphasis on identification: by widening (via the collection of a wide range of personal data related to everyday activities such as travel) and deepening (by collecting biometrics) the collection of personal data of those who move, and allowing access to such data to a wide range of authorities (beyond the field of authorities responsible for immigration and border control), the new systems have led to a model of globalised, generalised surveillance of movement. This part will examine these developments in a comparative perspective, looking at border security measures in the US, the UK and the EU. The collection and transfer of passenger data, a key aspect of this strategy, will be analysed further in the next part on extraterritorial immigration control, security and globalisation. The US The manner in which the 9/11 attacks took place signalled an emphasis on border security, and prompted discussions on the issue of entry to the US of those who could execute such attacks. The 9/11 Commission Report devoted a section to ‘terrorist travel’.2 In this context, the Report stressed the shortcomings of the pre-9/11 US system, asserted that “targeting travel is at least as powerful a weapon against terrorists as targeting their money”, and recommended that the US “should combine terrorist travel intelligence, operations, and law enforcement in a strategy to intercept terrorists, find terrorist travel facilitators, and constrain terrorist mobility”.3 This approach was also reflected in the US strategy for ‘homeland security’. The latter, put forward by the Bush Administration in 2002, included a whole chapter on ‘border and transportation security’, and another on information sharing for homeland security. Great emphasis was placed on the widening and deepening of information collection and sharing (including of biometrics) from a variety of sources.4 The Strategy calls for the establishment of a ‘border of the future’ (smart borders)5 and of a ‘system of systems’ which will provide “the right information to the right people at all times”.6

2 3 4 5 6

The 9/11 Commission Report, (New York and London: W.W. Norton and Company), 383–385. Ibid., p. 385. Office for Homeland Security, National Strategy for Homeland Security, July 2002, 22. Ibid. Ibid., p. 56. See in this context the –now aborted- scheme put forward by the Bush Administration for the establishment of a ‘Total Information Awareness’ (TIA) system. For an analysis of TIA see Reg Whitaker, “A Faustian Bargain? America and the Dream of Total Information Awareness”, in The New Politics of Surveillance and Visibility, ed. Kevin. Haggerty and Richard Ericson (Toronto: University of Toronto Press, 2006), 141–170.

Extraterritorial Immigration Control in the 21st Century

41

This strategy was translated into a series of legislative and executive measures aiming on the one hand at monitoring the movement of passengers into and via the United States (by the establishment of pre-screening systems) and on the other at promoting interagency co-operation and the interoperability of databases with regard to ‘homeland’ and ‘border’ security. The latter appears as a term in the title of the 2002 Enhanced Border Security and Visa Entry Reform Act, which placed emphasis on another element of ‘border security’ linked to both aspects described above: the identification of individuals wishing to enter the US, in particular by introducing requirements that travel documents contain machine-readable data, such as fingerprints. Subsequent measures expressly required the taking of biometric identifiers by individuals entering the US, emphasising again the prevention element in border control.7 A key component of the new US system of extraterritorial immigration control aiming at ‘border security’ has been the US VISIT Programme (or in full title the U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program). The Programme has been designed to use biometric and biographic information to control and monitor the pre-entry, entry, status and exit of foreign visitors and is “intended to enhance the security of US citizens and visitors, facilitate legitimate travel and trade, ensure the integrity of the U.S. immigration system, and protect the privacy of visitors to the United States.”8 As the Department of Homeland Security noted, it is “part of a continuum of security measures that begins overseas, when a person applies for a visa to travel to the US, and continues on through entry and exit at US air and seaports and, eventually, at land border crossings”.9 The system initially applied to select nationalities, but, notwithstanding privacy concerns,10 has now been rolled out for all foreign visitors.11 In this context, it has been noted that “that the US VISIT Program

7

8

9

10

11

For a general analysis of ‘border security’ in the US context, see Valsamis Mitsilegas, “Borders, Security and Transatlantic Co-operation in the 21st Century: Identity and Privacy in an Era of Globalised Surveillance”, in Immigration Policy and Security: US, European and Commonwealth Perspectives, ed. Terri Givens, Gary Freeman and David Leal (New York and London: Routledge, 2009), 148–166. GAO, Report to the Chairman and Ranking Member, Committee on Homeland Security, House of Representatives, Homeland Security. Strategic Solution for US-VISIT Program Needs to Be Better Defined, Justified, and Coordinated, GAO-08-361, February 2008, p. 1. Cited in Colin Bennett, “What Happens when you Book an Airline Ticket? The Collection and processing of Passenger Data post-9/11”, in Global Surveillance and Policing, ed. Elia Zureik and Mark Salter (Cullompton and Portland: Willan, 2005), 127. See GAO Report, Homeland Security. Some Progress Made but Many Challenges Remain on US Visitor and Immigrant Status Indicator Technology Program, GAO-05-202. See Mark Salter, “Passports, Mobility and Security: How Smart Can the Border Be?,” International Studies Perspectives 5 (2004): 77.

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now applies to all foreign bodies, not merely those that have been identified as potentially “risky” or even “guilty”…, is all the more significant. In the new border protection practices, each visitor to the US features as a foreign body tagged with an individual calculated level of risk”.12 These concerns are intensified in the light of the development of a new US-VISIT capability known as ‘Unique Identity’, “which is to establish a single identity for all individuals who interact with any immigration and border management organisation by capturing the individual’s biometrics, including 10 fingerprints and a digital image, at the earliest possible interaction.”13 The UK A similar to the US emphasis on ‘border security’ via the maximum identification of individuals before they reach the border can be discerned in United Kingdom policy, whose centrepiece has been the establishment of an ‘e-borders’ programme or, in Home Office jargon, of a “joined-up, modernised and intelligence-led border control and security framework”.14 Subsequent policy documents emphasise the priority given to identifying individuals by the use of biometrics. The title and tone of the Home Office Action Plan on ‘Borders, Immigration and Identity’ are indicative in this context: it is boldly stated that “biometric technology now means that we can link people to a unique identity” and that biometrics are “the most secure way of fixing an individual to a unique identity”.15 This extraordinary use of language is repeated in the Home Office Strategy Paper entitled ‘Securing the UK Border’,16 where ‘identity management’ is flagged up as a key element of the Government’s approach. As the Home Office proclaims, we want…to fix people’s identities at the earliest point practicable, checking them through each stage of their journey, identifying those presenting risk and stopping them coming to the UK. By the time a passenger has been identified at the

12

13 14

15

16

Charlotte Epstein, “Embodying Risk: Using Biometrics to Protect the Borders”, in Risk and the War on Terror, ed. Louise Amoore and Marieke de Goede (London and New York: Routledge, 2008), 185. GAO Executive Summary, see note 8 above, emphasis added. See Home Office, Controlling our Borders: Making Migration Work for Britain. Five Year Strategy for Asylum and Immigration, February 2005. For further analysis, see also Valsamis Mitsilegas, “Human Rights, Terrorism and the Quest for Border Security”, in Individual Guarantees in the European Judicial Area in Criminal Matters, ed. Marco Pedrazzi (Brussels: Bruylant, forthcoming). Home Office, Borders, Immigration and Identity Action Plan, (December 2006), chapter 2 (introduction and point 2.2 respectively, emphasis added). March 2007.


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border posing a threat, it can be too late – they have achieved their goal in reaching our shores. Off-shoring our border control is the keystone of our border defence.17

The key aim of such a system is the accumulation of knowledge regarding individuals who move for preventative purposes: as is explicitly stated in the same document, “our aim is to build up as rich a knowledge of the travelling public as possible”.18 This emphasis on (i) knowledge and identification, (ii) prior to reaching the border, (iii) primarily via biometrics is repeated in a number of subsequent UK policy documents.19 Only in 2007, references to ‘fixing’ people’s identities (or, according to the latest White Paper entitled ‘Security in a Global Hub’, all individuals being ‘locked into a secure biometric identity’…)20 have appeared in at least 3 major policy initiatives on migration, borders and security.21 Biometrics in border controls have also been used to create the concept of a ‘Trusted Traveller’- under this scheme, individuals are pre-screened and can then use fast-track access to the UK via automated gates using iris recognition.22 Border security, comprising all the elements mentioned above, has thus emerged as a top Government priority in the UK, inextricably linked with broader counter-terrorism purposes. This link was made crystal-clear in Gordon Brown’s statement to the Commons on ‘national security’ in July 2007.23 The emphasis has been on three ‘lines of defence’ against terrorism (before the border, at the border and in country).24 The use of biometrics is central in all three stages. On stage one, according to the Prime Minister, the way forward is electronic screening of all passengers as they check in and out of the country at ports and airports, so that terrorist suspects can be identified and stopped before they board planes, trains and boats to the United Kingdom. After a review of counter-terrorism screening…the Home Secretary will enhance the

17 18 19

20 21

22 23 24

Point 1.4. Emphasis added. Point 4.1. Emphasis added. For an overview see V. Mitsilegas, ‘Human Rights, Terrorism and the Quest for Border Security’, op. cit. Cabinet Office, Security in a Global Hub, November 2007, point 3.26. Emphasis added. Securing the UK Border; Security in a Global Hub; and Managing Global Migration (Home Office and FCO, June 2007) in particular at 24. Home Office, UK Border Agency, A Strong New Force at the Border (August 2008), 17. Commons Hansard of 25 July 2007, cols. 841–843. Note the similarities of this approach with the recent Commission definition of the concept of integrated border management in the EU, which involves ‘measures taken at the consulates of Member States in third countries, measures at the border itself, and measures taken within the Schengen area’– European Commission, Communication on Preparing the Next Steps in Border Management in the European Union, COM (2008) 69 final, Brussels, 13 February 2008, para. 1.2.

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existing e-borders programme to incorporate all passenger information to help to track and intercept terrorists and criminals as well as, of course, illegal immigrants.25

As Gina Clayton notes elsewhere in this volume, section 126 of the Nationality Immigration and Asylum Act 2002, granting power to the Home Secretary to require biometric information with applications for entry clearance or for leave to enter or remain in the UK, has now been fully implemented by the roll-out of both digital photographs and fingerprinting as a requirement for all applications for entry clearance at all posts.26 Section 36 of the Immigration Asylum and Nationality Act 2006 aims at facilitating the sharing of personal data under e-Borders between a number of agencies, including the borders agency, Revenue and the police.27 According to the UK Border Agency, e-borders has screened 94 million passenger movements by July 2009, and the number will rise to 120 million passenger movements in and out of the UK (60% of the total) being screened against watch lists by the end of the year.28 The EU The link between immigration control and security was clearly articulated in the 2004 Hague Programme. According to the latter, the management of migration flows, including the fight against illegal immigration should be strengthened by establishing a continuum of security measures that effectively links visa application procedures and entry and exit procedures at external border crossings. Such measures are also of importance for the prevention and control of crime, in particular terrorism. In order to achieve this, a coherent approach and harmonised solutions in the EU on biometric identifiers and data are necessary.29

This is a clear reflection of the concept of ‘border security’ as developed in the US and the UK, with controls on immigration and movement being prioritised and linked with counter-terrorism. In this manner, the wording of the Hague Programme represents the creation of what scholars have already identified in the 1990s as the so-called ‘(in)security continuum’ which consists of linking,

25 26

27

28 29

Col. 842. See the Immigration (Provision of Physical Data) Regulations 2006, SI 2006/1743 and the analysis by Clayton in this volume. See in this context also the Code of Practice on the Management of Information shared by the Border and Immigration Agency, Her Majesty’s Revenue and Customs and the Police, adopted under section 37 of the 2006 Act. Home Office, UK Border Agency, Key Facts and Figures. July 2009, 6. Paragraph 1.7.2. Emphasis added.


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in law and policy discourse, the disparate and very different aims of controlling immigration on the one hand and fighting ‘security threats’ such as crime and terrorism on the other.30 Intervention before entry, prevention and the collection and exchange of personal data (including biometrics) are all key in this context. As with the US, the renewal of this (in)security continuum emerged at EU level following attacks in a European capital, Madrid. In the Declaration on combating terrorism of 25 March 2004 following these attacks, the European Council linked the monitoring of the movement of people with counterterrorism by stressing that “improved border controls and document security play an important role in combating terrorism”. There were two elements in this approach: the inclusion of biometrics in EU visas and passports, which should be prioritised and relevant measures be adopted by the end of 2004; and the enhancement of the interoperability between EU databases and the creation of ‘synergies’ between existing and future information systems (such as SIS II, VIS and Eurodac) in order to exploit their added value within their respective legal and technical frameworks in the prevention and fight against terrorism.31 Political pressure towards the insertion of biometrics into identity and travel documents in EU Member States led to the adoption, in December 2004, of a Regulation introducing biometric identifiers (in the form of facial images and fingerprints) in EU passports.32 The introduction of biometrics in EU passports was justified by the Commission as necessary to meet US requirements on document security and thus prolong the US ‘visa waiver’ programme that a number of EU Member States enjoy and extend it to EU Member States which are not members.33 The legal basis of the Regulation is Article 62(2)(a) EC Treaty on external border controls, although the Regulation was deemed by Member States such as the United Kingdom to be a security measure.34 The Regulation was finally adopted notwithstanding serious legality objections related to the 30

31

32

33

34

See in particular Didier Bigo, Polices en Réseaux. L’Éxperience Européenne (Paris: Presses de Sciences Po, 1996). See Valsamis Mitsilegas, “Contrôle des étrangers, des passagers, des citoyens: Surveillance et antiterrorisme,” Cultures et Conflits 58 (2005): 155–182. Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel docs issued by Member States, [2004] OJ L 385/1, 29 December 2004. See Mitsilegas, op. cit. (Cultures et Conflits), p. 172. On the US requirement for ‘e-passports’, see Ayelet Shachar, “The Shifting Border of Immigration Regulation,” Stanford Journal of Civil Rights and Civil Liberties 3 (2007): 179–180. See letter of 15 July 2004 by the then Home Office Minister, Caroline Flint, to Lord Grenfell, Chairman of the House of Lords EU Select Committee, stating that ‘our view is that the current proposal is first and foremost a security measure.’

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appropriateness of a Title IV legal basis as regards measures affecting EU citizens, and the existence of EC competence to adopt binding legislation on the content of identity documents.35 Notwithstanding these concerns, negotiations on the measure went ahead. A second biometric identifier – fingerprints – was added and the biometrics Regulation was adopted swiftly thereafter in December 2004.36 EU immigration law was thus used to adopt a measure deemed by some as primarily concerned with security, and applicable not to third country nationals, but to EU citizens. Under a questionable legal basis, EU Member States unanimously adopted a measure facilitating extraterritorial immigration control of their citizens. Biometrics also play a central role in EU extraterritorial immigration control, in particular via their use in the EU Visa Information System (VIS).37 The development of the VIS is a clear example of the trend to securitise migration and blur the boundary between immigration and police databases. The Justice and Home Affairs Council adopted detailed conclusions on the development of VIS in February 2004, stating clearly that one of the purposes of the system would be to “contribute towards improving the administration of the common visa policy and towards internal security and combating terrorism.”38 It also called for access to VIS to be granted to border guards and “other national authorities to be authorised by each Member State such as police departments, immigration departments and services responsible for internal security.”39 In June 2004, the Council adopted a Decision forming the legal basis for the establishment of VIS40 and negotiations began to define its purpose and 35 36

37

38

39 40

Mitsilegas, op. cit. (Cultures et Conflits). The need for the swift adoption of the proposal has also been justified on the grounds that the US would abandon its visa-waiver programme with those EU Member States which had not introduced biometrics in their passports by a certain date. Like in the PNR case, the EU has managed to obtain an extension to the US deadline for the insertion of biometrics, but this new US deadline will not be met and it is unlikely to be extended by the US (see letter of 31 March 2005 from the Chairman of the US House Judiciary Committee to the Commission and the Council, reproduced in www.statewatch.org). On the use of biometrics in EU databases, with emphasis on the immigration databases, see Anneliese Baldaccini, “Counter-terrorism and the EU Strategy for Border Security: Framing Suspects with Biometric Documents and Databases,” European Journal of Migration and Law 10 (2008): 31–49; see also Evelien Brouwer, “The Use of Biometrics in EU Databases and Identity Documents”, in Are You Who You Say You Are? The EU and Biometric Borders, ed. Juliet Lodge (Nijmegen: Wolf Legal Publishers, 2007), 45–66. Doc 5831/04 (Presse 37). The Council called for the inclusion in VIS of biometric data on visa applicants. Ibid. Council Decision of 8 June 2004 establishing the Visa Information System (VIS), [2004] OJ L 213/5, 15 June 2004.


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functions and formulate rules on access and exchange of data. The Justice and Home Affairs Council of 24 February 2005 called for access to VIS to be given to national authorities responsible for ‘internal security’, when exercising their powers in investigating, preventing and detecting criminal offences, including terrorist acts or threats and invited the Commission to present a separate, third pillar proposal to this end.41 The two texts were linked and thus negotiated in parallel (co-decision was required formally for the first pillar Regulation, while for the third pillar Decision the European Parliament had a consultation role).42 They were published in the Official Journal with considerable delay, in August 2008.43 Reflecting the logic of the Conclusions of the 2005 JHA Council, the VIS Regulation expressly states that one of the purposes of the Visa Information System is to contribute to the prevention of threats to the internal security of the Member States.44 The Regulation also contains a bridging clause to the third pillar Decision allowing access to VIS by Europol within the limits of its mandate and when necessary for the performance of its tasks, and by the relevant national authorities “if there are reasonable grounds to consider that consultation of VIS data will substantially contribute” to the prevention, detection or investigation of terrorist offences and of other serious criminal offences.45 The terms of access by internal security authorities and Europol to the VIS are set out in detail in the third pillar Decision.46 The VIS will also include biometric data.47 Some detail with regard to the introduction of biometrics to EU visas can be found in a recently adopted Regulation amending the Common Consular Instructions.48 The link between the collection and use of biometrics on the one hand and the identification of the visa holder on the other is made clear already in the Preamble to the Regulation.49 In a clear convergence with the US system, the Regulation calls upon Member States to collect biometric identifiers, comprising the facial image and ten fingerprints, from the applicant.50 Fingerprints

41 42 43

44 45 46 47 48 49

50

Doc. 6228.05 (Presse 28), pp. 15–16. For details see V. Mitsilegas, ‘Human Rights, Terrorism and the Quest for Border Security’, op. cit. Regulation (EC) No 767/2008, OJ L218, 13 August 2008, p. 60; Decision 2008/633/JHA, OJ L218, 13 August 2008, p. 129. The Regulation also enables the recording of biometric data into VIS- see Article 5(1). Article 3(1). In particular Articles 5–7. Regulation, Preamble recital 10, Articles 5 and 9. Regulation (EC) No 390/2009, L131, 28 May 2009, p. 1. ‘The integration of biometric identifiers in the VIS is an important step towards the use of new elements, which establish a more reliable link between the visa holder and the passport in order to avoid the use of false identities’, recital 2. Amended Part III point 1.2(a). See also the exceptions in Part III point 1.2(b).

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must be taken in accordance with ICAO standards and a Commission Decision in the field.51 Another example of the new generalised surveillance based on monitoring movement, applying to both EU and third country nationals, is the creation of databases and the collection of sensitive personal data is the new move by the European Commission to propose the creation of an entry-exit system at the external borders of the European Union, coupled with facilitation of border crossings for bona fide travellers and the creation of an electronic travel authorisation system.52 The entry/exit system would be a new database, applying to third country nationals admitted for a short stay; bona fide travellers would be ‘low risk’ third country nationals, but also EU citizens – both would cross external borders via ‘automated gates’. The Electronic Travel Authorisation System (ETA) would apply to third country nationals not subject to a visa requirement who would be required to make an electronic application in advance of travelling. These proposals are similar to the US model of border security, and are reminiscent of the recommendation by the 9/11 Commission to ‘balance’ the collection of biometrics by US citizens with measures aimed at speeding ‘known travellers’. Both interoperability and the use of biometrics is central to these proposals, in particular to the proposals for the establishment of a system of border crossings via automated gates. The Commission notes that: In the run-up to full introduction of biometric passports, the current legal framework allows for schemes based on voluntary enrolment to be deployed by Member States, under the condition that the criteria for enrolment correspond to those for minimum checks at the borders and that the schemes are open for all persons enjoying the Community right to free movement. Such schemes should be interoperable within the EU, based on common technical standards, which should be defined to support the widespread and coherent use of automated border control systems.53

The added value of a new database on an entry-exit system for third country nationals is not evident, especially in the light of the recent setting up of the Visa Information System. Moreover, and along with the evident proportionality concerns, there are serious legality concerns with regard to the extension of legislation on the management of the EU external border to EU citizens. There is arguably no legal basis in the EU Treaties to apply the external border controls to EU citizens, and legal basis concerns similar to those applying to the EC biometrics

51

52

53

Ibid. See Commission Decision of 22 September 2006, OJ L267, 27 September 2006, p. 41. See also Preamble, recital 4. Commission Communication on Preparing the Next Steps in Border Management in the European Union, COM (2008) 69 final, Brussels, 13 February 2008. Ibid., p. 7. Emphasis added.


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Regulation apply here.54 Notwithstanding these concerns, the momentum for the establishment of an entry-exit system along these lines is currently high. The European Council invited the Commission to present proposals for an entry/exit and registered traveller system by the beginning of 2010,55 and more recently agreed in the European Pact on Immigration and Asylum (endorsed by the European Council in October 2008) to deploy “modern technological means to ensure that systems are interoperable” and stated that from 2012 the focus should be “on establishing electronic recording of entry and exit, together with a fasttrack procedure for European citizens and other travellers”.56 Another reflection of the securitisation of EU immigration control is the operation of the European Borders Agency (FRONTEX). The role of FRONTEX in extraterritorial immigration control, including its relationship with third countries, has been analysed extensively elsewhere in this volume by Anneliese Baldaccini. For the purposes of this chapter, it is relevant to highlight the increased perception of FRONTEX (which was established under a Title IV Regulation as the agency responsible for the ‘management’ of the EU external border) as a security agency. Although FRONTEX is not explicitly a security agency along the lines of the US Homeland Security Department or the UK Border Agency,57 security elements can be discerned in the text of the FRONTEX Regulation,58 and the subsequent co-operation agreements/arrangements between FRONTEX and various EU and third country law enforcement authorities.59 Security and the production and use of intelligence by FRONTEX are also central in recent Commission proposals for the development of EUROSUR,

54

55

56 57 58

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For further details on this point, see Valsamis Mitsilegas, “The Borders Paradox. The Surveillance of Movement in a Union without Internal Frontiers”, in A Right to Inclusion and Exclusion? Normative Faultlines of the EU’s Area of Freedom, Security and Justice, ed. Hans Lindahl (Oxford: Hart, 2009), 33–64. Presidency Conclusions of the Brussels European Council of 19/20 June 2008, Council doc. 11018/08, Brussels, 20 June 2008, paragraph 10. Council doc. 13440/08, Brussels, 24 September 2008, point III(e). For more on these agencies see part 4 below. Council Regulation EC No 2007/2004, OJ L349, 25 November 2004, p. 1. Article 1(2) refers to Frontex contributing to ‘an efficient, high and uniform level of control on persons and surveillance of the external borders of Member States’ (my emphasis); the first indent of the Preamble confirms this view, by stating more broadly that ‘Community policy in the field of the EU external borders aims at an integrated management ensuring a uniform and high level of control and surveillance’. Article 13 of the Frontex Regulation establishes a legal basis for the cooperation of Frontex with Europol and international organisations (which has led to the conclusion of a strategic cooperation agreement between Frontex and Europol and, in 2009, to the signature of a ‘working arrangement’ between Frontex and Interpol), while Article 14 refers to the facilitation of

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a European border surveillance system.60 However, the security dimension of FRONTEX is more clearly evident in the jargon used in its latest Annual Report.61 Two of the four stated aims of FRONTEX have to do with security: awareness, which is inter alia gathering “situational pictures based on intelligence and by analysing the situation to assess changes, risks and threats with possible impact on the security of the EU external borders”; and interoperability “at national, European and international levels”, as FRONTEX “aims to be the central player for promoting harmonisation of doctrines, needs, operational and administrative procedures, and technical solutions supporting effective management of the EU external borders”.62 Behind the management-speak, the emphasis on intelligence and operational action cannot be lost to the reader.

3. Extraterritorial Immigration Control, Security and Globalisation A further impact of security on extraterritorial immigration control has been the emergence of global standards and practices in the field. This globalisation of extraterritorial immigration control has occurred in a three-fold manner: by the imposition of domestic standards around the world via unilateral demands (US demands on biometrics in travel and identity documents for all foreign citizens travelling to the US is a prime example); by the establishment of mechanisms of operational co-operation between authorities and agencies around the world (such as the co-operation between FRONTEX and the US Homeland Security Department); and ultimately by the gradual convergence of extraterritorial immigration control standards in the West (biometric requirements by the US and the EU constitute a vivid example of this trend, as does the philosophy and application of electronic authorisation systems for entry). Convergence is largely premised upon a clear merging of immigration with security considerations in extraterritorial immigration control. A striking example at EU level is the increasing convergence of policy and legislation on border security between the full Schengen members on the one hand, and the United Kingdom (currently not participating formally in Schengen border controls) on the other.63

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operational cooperation with third countries- a prime recent example is the 2009 ‘working arrangement’ signed between Frontex and the US Department of Homeland Security. European Commission, Communication Examining the Creation of a European Border Surveillance System (EUROSUR), COM (2008) 68 final, Brussels, 13 February 2008, p. 6. Frontex General Report 2008, Council doc. 12305/09, Brussels, 24 July 2009, p. 9. Ibid., p. 9. On the convergence between the Schengen and the UK systems of border controls, see Valsamis Mitsilegas, “Border Security and Human Rights: UK and EU Approaches Converging?”, in ILPA European Update (December 2008), 1–9.


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Globalisation can however be seen not only as an outcome, but also as a cause of the development of new extraterritorial immigration controls and the gradual convergence of standards in the field. A well-documented, key feature of recent years has been the facilitation of mobility and the flows of people in a global environment. As Sassen has noted, the border is now “embedded in the product, the person, and the instrument: a mobile agent endogenizes critical features of the border”…“there are multiple locations for the border, whether inside firms or in long transnational chains of locations that can move deep inside national territorial and institutional domains”64 In Europe, this globalisation effect has been coupled with the total opening of the borders to the East (as regards the Eastern European countries which are now EU and full Schengen members). This facilitation of human flows that more open borders may entail has however been accompanied by security demands. These security demands have been translated into the strengthening of the external border and have resulted, as has been demonstrated throughout this volume, in the proliferation of extraterritorial immigration control, aiming to prevent individuals from accessing the actual physical border of States or the European Union. At the same time, the realisation of the impact of globalisation in enhancing mobility has led to an increased emphasis in controlling population flows at the global level. Nothing demonstrates this trend more clearly than the evolution of measures on the collection and transfer of Passenger Name Records (PNR). Security, mobility and globalisation: the case of PNR As seen above, the surveillance of movement and passenger flows has been a key component of US counter-terrorism strategy post-9/11. Globalisation and extraterritoriality have been central in the development of US law and policy in the field. In the Homeland Security strategy document, it was stated expressly that “the increasing mobility and destructive potential of modern terrorism has required the US to rethink and rearrange fundamentally its systems for border and transportation security” and that border security must be conceived as “fully integrated requirements because our domestic transportation systems are interwined inextricably with the global transport infrastructure”.65 This focus on globalisation was reaffirmed by the then US Homeland Security Secretary Tom Ridge, who noted that: “as the world community has become more connected through the globalization of technology, transportation, commerce and communication, the benefits of globalization available to peace loving, freedom loving

64

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Saskia Sassen, Territory, Authority, Rights. From Medieval to Global Assemblages, (Princeton and Oxford: Princeton University Press, 2008), 416. Ibid., p. 21.

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people are available to the terrorists as well.”66 Not only immigration, but also mobility and movement via globalisation have thus been securitised. In this light, the United States passed legislation in November 2001, requiring air carriers operating flights to, from or through the US to provide US Customs with electronic access to data contained in their automatic reservation and departure control systems.67 This data, known as Passenger Name Records (PNR), constitutes a record of each passenger’s travel requirements and contains all the information necessary to enable reservations to be processed and controlled by the booking and participating airlines. Transfer to such information to the US authorities before departure has been a key element of the US border security strategy focusing on identification and prevention. PNR data can include a wide range of details, from the passenger’s name and address to their email address, credit card details and on-flight dietary requirements. The transfer of PNR data was deemed to be key to the operation of the US Automated Targeting System (ATS), which uses a wide range of databases, including law enforcement and FBI databases “to assess and identify …travellers that may pose a greater risk of terrorist or criminal activity and therefore should be subject to further scrutiny or examination”.68 US legislation was applicable to all flights to the US, including flights from the EU. EU airlines would thus have had to comply with the legislation if they did not want to be subject to heavy fines, leading even to the cancellation of landing rights at US airports. EU Member States did eventually agree in 2003 on a Directive requiring the transmission by carriers of passenger data, but this Directive covered the transmission of data for journeys to the EU, and required the transmission of much more limited categories of personal data (API data, namely data which can be found primarily on the passport).69 Notwithstanding the fact that the API Directive was adopted under Title IV and that its stated aim was to combat illegal immigration, there were attempts by the UK Government 66

67

68

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Cited in p.339 of Louise Amoore, “Biometric Borders: Governing Mobilities in the War on Terror,” Political Geography 25 (2006): 336–351. Title 49, US Code, section 44909(c)(3) and title 19, Code of Federal Regulations, section 122.49b. On the US response regarding border security more generally see Ayse Ceyhan, “Sécurité, Frontières et Surveillance aux Etats Unis apres le 11 Septembre 2001,” Cultures et Conflits 53, downloaded from www.conflits.org Department of Homeland Security, Privacy Office, A Report concerning Passenger Name Record Information derived from Flights between the U.S. and the European Union, 18 December 2008, p. 38. It has been noted that the ATS generates a risk assessment score for each traveller: A. Shachar, op. cit. Council Dir 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data [2004] OJ L 261/24, 6 August 2004. For an analysis of the Directive see Mitsilegas, Cultures et Conflits, op. cit.


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during negotiations to frame it also as a national security and counter-terrorism matter (and thus align it with its domestic approach on border security and e-borders).70 However, in spite of the adoption of the API Directive, concerns were voiced in the EU that US PNR legislation was too invasive of privacy and could be in conflict with Community and Member States’ data protection standards.71 The Commission informed the US authorities of these concerns and this led to the entry into force of the US legislation being postponed until 5 March 2003. The Commission began negotiations with the US authorities in order to formulate standards governing the transfer of PNR data to the US. Negotiations were protracted and lasted well beyond 5 March 2003, when US law formally entered into force vis-à-vis EU airlines. They resulted in an agreement between the Commission and the US authorities on 16 December 2003. Following a series of undertakings by the US authorities, the Commission accepted that US data protection standards in the context of PNR transfers were adequate. The Commission said so in a Communication issued that day, justifying its decision by stating that “the option of insisting on the enforcement of the law on the EU side would have been politically justified, but … would have undermined the influence of more moderate and co-operative counsels in Washington and substituted a trial of strength for the genuine leverage we have as co-operative partners”.72 The Commission’s handling of the PNR dossier revealed a two-fold agenda: to establish a first pillar competence for external action in the field; and, linked with this, to emerge as a global actor, acting on behalf of the Community, negotiating with the US and developing global standards and/or co-operation in the field. The saga following these negotiations is known: a first pillar EC-US PNR Agreement allowing the transfer of PNR data to the US was signed, in the face of vocal opposition by the European Parliament, expert data protection bodies and civil society. Following litigation instituted by the European Parliament (mainly on institutional grounds), the Agreement (and its accompanying Decision) were annulled by the ECJ on legality grounds. The transfer of PNR constituted a security (third pillar) matter and not an internal market (first pillar)

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Caroline Flint, then a Home Office Minister, argued that the proposal ‘is all about border control, whether it is illegal immigration or criminals coming in, or people who are a threat to national security’ See her evidence in see House of Lords, EU Committee, Fighting illegal immigration: should carriers carry the burden?, 5th Report, session 2003–04, HL Paper 29, at para. 9. See Mitsilegas, Cultures et Conflits, op. cit. Communication from the Commission to the Council and the Parliament, Transfer of Air Passenger Name Record (PNR) Data: A Global EU Approach, COM (2003) 826 final, 16 December 2003, p. 5.

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matter; annulment resulted in the conclusion of an interim third pillar Agreement, and finally in 2007 of a third pillar EU-US PNR Agreement.73 This Agreement has done little to address concerns with regard to the adequacy of US privacy standards. Like the earlier texts, the agreement included an adequacy assessment – the US was deemed to ensure an adequate level of PNR data protection for PNR data transferred from the European Union – an assessment which is linked with the issue of transmission of ‘EU’ PNR data to third countries: the adequacy assessment means that the EU “will not interfere with relationships between the US and third countries for the exchange of passenger information on data protection grounds”.74 Moreover, in a statement reminiscent to the one in the EU-US Mutual Legal Assistance Agreement, the parties recognise that “US and European privacy law and policy share a common basis and that any differences in the implementation of these principles should not present an obstacle to cooperation between the US and the EU”.75 The preservation of the US standards is also to be ensured by a provision making clear that the Agreement is not intended to derogate from or amend existing US (and EU) law, and expressly stating (as in earlier texts) that the Agreement “does not create or confer any right or benefit on any other person or entity, private or public”.76 The Agreement also seems to be creating, on the basis of reciprocity, a link between the level of data protection in the two parties: as is stated, the DHS “expects that it is not being asked to undertake data protection measures in its PNR system that are more stringent than those applied by European authorities for their domestic PNR systems” and vice-versa.77 Widespread transfer of personal data to the US is authorised. Although the text of the Agreement itself does not include details of the PNR data transfer per se, these are set out in a separate ‘US letter to the EU’, signed by the then Homeland Security Secretary Michael Chertoff, which accompanies the Agreement.78 The

73

74 75 76 77

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For details, see Valsamis Mitsilegas, “The External Dimension of EU Action in Criminal Matters,” European Foreign Affairs Review 12 (2007): 457–497. For the text, see Agreement between the European Union and the United States of America on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the United States Department of Homeland Security (DHS) (2007 PNR Agreement), OJ L 204, 4 August 2007, p. 18. See also Council Decision approving the signing of the Agreement on the basis of Articles 24 and 38 TEU, at 16. Paragraph 6. Preamble, recital 5. See also Mitsilegas, EFAR, op. cit. Penultimate paragraph. Paragraph 5. See also point IX of the ‘US letter to the EU’ accompanying the Agreement-see below. OJ L204, 4 August 2007, p. 21. This is in turn followed by an ‘EU letter to the US’ confirming that, on the basis of the assurances provided in the US letter, the EU deems that the US ensure


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letter enumerates 19 types of PNR data covered by the Agreement (these are more or less similar to the broad categories in the earlier agreements and include data such as payment information, seat information and ‘general remarks’).79 These can be accessed by US government authorities with law enforcement, public security or counterterrorism functions and can also be transferred to government authorities in third countries.80 The Agreement also contains provisions regulating the move, under certain conditions, from a ‘pull’ to a ‘push’ system for PNR data transfer81 and provisions defining its purposes as fighting terrorism and other serious crimes, but leaves the option of the unilateral broadening of the scope by the US open.82 The letter also extends the retention period of PNR data essentially to a minimum of 15 years- seven years in an ‘active analytical database’ and a further eight years in dormant status.83 This provision has met with the critical reaction of the European Parliament, which raised its concern that such databases lead to “a significant risk of massive profiling and data mining”.84 The European Data Protection Supervisor has also raised concerns,85 as has the Article 29 Working Party on Data Protection.86 A first step towards a global model of extraterritorial immigration control based on the surveillance of movement has thus been achieved, by the compliance of the European Union with the demands of foreign law.87 However, global convergence in PNR standards has not been limited to legal texts aiming to accommodate domestic demands. Notwithstanding the sustained concerns raised by the European Parliament and specialist EU data protection bodies with regard to the compatibility of the EU-US PNR Agreements with EU privacy and data

79 80 81 82

83 84

85 86 87

an adequate level of data protection and that, based on this finding, ‘the EU will take all the necessary steps to discourage international organisations or third countries from interfering with any transfers of EU PNR data to the United States’, p. 25. Point III of the letter. Point II. Point VIII. By stating that ‘DHS will advise the EU regarding the passage of any US legislation which materially affects the statements made in this letter’, point I. Point VII. European Parliament Resolution of 12 July 2007 on the PNR agreement with the USA, P6_TA-PROV (2007)0347, point 20. Letter of 27 June 2007 to Wolfgang Schäuble, at www.statewatch.org See comments of 27 September 2007. See also the Agreement signed between the European Union and Australia with regard to the processing and transfer of Union-sources PNR data to the Australian Customs Service (OJ L213, 8 August 2008, p. 47, and the Agreement between the European Community and the Government of Canada on the processing of API and PNR data (OJ L82, 21 March 2006, p. 15).

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protection law, the Commission has recently tabled a proposal for a Framework Decision proposing a similar system of transmission of PNR data by carriers flying into the EU.88 The Commission justifies the proposal as a result of the ‘policy-learning’ from the existing PNR Agreements with the US and Canada, as well as the development of pilot projects in the UK. Both these developments (involving countries, in particular the US and the UK, which as seen above have pushed forward a specific concept of ‘border security’ linked with technology and the fight against terrorism) have demonstrated, according to the Commission, the potential of PNR data for law enforcement purposes.89 Along with the concerns raised in the context of the EU-US PNR saga, one could question the necessity and added value of an essentially similar system at EU level. After all, as mentioned above, there is recent legislation at EU level on the transfer of API data adopted under an immigration legal basis. Mindful of this criticism, the Commission attempts in the Explanatory Memorandum to the PNR proposal to distinguish between the two initiatives. The Commission notes that: For the purposes of the fight against terrorism and organised crime, the information contained in the API data would be sufficient only for identifying known terrorists and criminals by using alert systems. API data are official data, as they stem from passports, and sufficiently accurate as to the identity of a person. On the other hand, PNR data contains more data elements and are available in advance of API data. Such data elements are a very important tool for carrying out risk assessments of the persons, for obtaining intelligence and for making associations between known and unknown people.90

From this passage, it is clear that the Commission has adopted an intelligenceled model of border controls very similar to the ‘border security’ models in the US and the UK. The emphasis is on risk assessment and profiling, on the basis of the collection of a wide range of personal data at the earliest possible stage in time. From the limited categories of passport data to be transmitted prior to departure under the API Directive, we are now moving to the transfer of a wide range of information related to air passengers at a considerably earlier stage. The transfer of PNR data is viewed as necessary not only for border controls/ immigration, but also for broader counter-terrorism and security purposes.91

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Proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) for Law Enforcement Purposes, COM (2007) 654 final, Brussels, 6 November 2007. Ibid., at 2. Ibid., at 3. In this context, see also the Explanatory Memorandum submitted by the Home Office with regard to the Commission PNR proposal, where it is stated that ‘we need to allow the processing and exchange of PNR data for wider border security and crime-fighting purposes’. The UK


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This model of ‘border security’ legislation is confirmed when one looks at the content of the Commission proposal. It is instructive to start with the annex, containing the categories of PNR data to be transferred. These are strikingly similar to the list of PNR data contained in the latest EU-US PNR Agreement and include a wide range of data such as all forms of payment information, seat information and ‘general remarks’. The text of the proposal contains similarly broad provisions. It envisages a retention period of a maximum of no less than 13 yearsfive initially and a further eight when data can be accessed in exceptional circumstances.92 Transfer of PNR data to third countries is allowed, subject to a number of conditions prescribed in the proposal, which also refers to the Framework Decision on data protection.93 Carriers are required to send data to Passenger Information Units (PIUs) to be established under the Framework Decision94 24 hours before departure and immediately after flight closure- but the PIUs may require transmission prior to 24 hours from departure responding to specific threats of terrorism and organised crime.95 Passenger data may be processed by the PIUs and the competent authorities receiving data from PIUs in Member States (these are authorities responsible for the prevention of terrorism and organised crime)96 in order to identify persons who are or may be involved in terrorism and organised crime offences and their associates, to create and update risk indicators for the assessment of such persons, to provide intelligence on travel patterns and other trends relating to terrorist offences and organised crime, and to use data in criminal investigations and prosecutions.97 The emphasis on profiling of suspect populations, regardless of their actual involvement in criminal offences, is evident in this context. This initiative may be seen as a significant political move by EU institutions aiming to ensure real reciprocity with the United States (indeed, US airlines would be subject to these standards and the adoption of EU standards in the field will trigger the application of the various reciprocity clauses in the PNR Agreement). However, what this move also means is that the EU is essentially importing the whole US (and UK) model of intelligence-led, generalised surveillance based on

92 93

94 95 96 97

Government further advocated a wider scope to the proposal than the one envisaged by the Commission- see House of Commons European Scrutiny Committee, Seventh Report, session 2007–08. Article 9. Article 8. Further references to data protection standards in accordance with this Framework Decision can be found in Article 11 of the Commission proposal. Article 3. Article 5(3). Article 4(2). Article 3(5). Emphasis added.

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profiling via the gathering of a wide range of every day information on all passengers for ‘security’ purposes. While negotiations on the scope and content of the instrument are difficult and ongoing, it is noteworthy that one of the issues being discussed is extending the system to intra-Community flights- leading thus to the generalised surveillance of air travel also within the borderless Schengen area.98 The framing of the proposal as a counter-terrorism measure not only results into the weakening of privacy protection inside the EU (with the third pillar privacy and data protection framework being fragmented and limited to say the least) but also sits uneasily with the proclaimed freedom of movement within the Union.99 If adopted, the EU PNR system will signify a striking convergence of extraterritorial immigration control models between the Union and major industrialised Western countries, and contribute significantly to the globalisation of the control and prevention of movement.

4. Extraterritorial Immigration Control and the State: Transforming Responsibility Extraterritorial immigration control signifies an extension of the reach and powers of the State. Unlike the exercise of extraterritorial jurisdiction, where the State reaches beyond the territorial border to enforce its domestic law,100 the main aim of extraterritorial immigration control is for the State to evade responsibility by shielding its domestic legal system from claims by third country nationals wishing to access its territory. We have thus potentially a situation where State power is not accompanied by territorial (or extraterritorial) responsibility. This evasion of responsibility comes with increasing powers of the State: more layers of control, with more actors, at various stages in space and time. Moreover, the focus of securitised extraterritorial immigration control on the so-called ‘identity management’101 means that information which is collected as a means of such control remains with the State for long periods of time, giving the State enhanced powers of monitoring and surveillance of populations. At the same time, delegation of State power and the framing of extraterritorial immigration control in operational terms increasingly limit State accountability.

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See the Conclusions of the Justice and Home Affairs Council of 24 October 2008, Council doc. 14667/08 (Presse 299), p. 18. On this point, and for further details on the proposal, see V. Mitsilegas, The Borders Paradox op. cit. For an overview see Cedric Ryngaert, Jurisdiction in International Law, (Oxford and New York: Oxford University Press 2008). David Lyon, “National ID Cards: Crime-Control, Citizenship and Social Sorting,” Policing 1 (2007): 115, 116.


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A feature of growing salience in extraterritorial immigration control has been the privatisation of control. Issues surrounding the delegation of immigration responsibilities from the State to the private sector (in particular the extent to which the private sector assumes State functions) have been analysed extensively in the context of the debate on carriers’ liability.102 These issues remain relevant in securitised extraterritorial immigration control. The private sector lies at the heart of such control, with carriers now under the duty to routinely transmit to State authorities a wide range of personal data of their passengers. As Clayton notes elsewhere in this volume, private companies are now increasingly involved in the process of issuing visas, with the line between private and State responsibility being at times difficult to draw. In an era of high technology, databases and biometrics, privatisation obtains a further dimension: in the development of new extraterritorial immigration control, private commercial interests are inextricably linked with State interests, with private companies involved in building new databases, automated gates and biometric capabilities.103 In this context, the State may rely on new policies in the field to boost economic activity, while on the other hand commercially driven initiatives may be adopted as Government policy without adequate scrutiny or justification. Another way in which the power of the State is extended in extraterritorial immigration control without this being accompanied by enhanced scrutiny or accountability is the emphasis on the operational and the technical. At the EU level, this emphasis is clearly reflected in a document on EU JHA databases, a number of which form a key aspect of extraterritorial immigration control at EU level, the European Commission emphasised the need for their ‘interoperability’.104 The purpose of the Communication was to highlight how, beyond their present purposes, databases “can more effectively support the policies linked to the free movement of persons and serve the objective of combating terrorism and serious crime”.105 On the basis of this approach, the Commission argued strongly in favour of access by authorities responsible for internal security to immigration

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See inter alia: Gallya Lahav, “Immigration and the State: The Devolution and Privatisation of Immigration Control in the EU,” Journal of Ethnic and Migration Studies 24 (1998): 675–694; and, in the UK context, Frances Nicholson, “Implementation of the Immigration (Carriers’ Liability) Act 1987: Privatising Immigration Functions at the Expense of International Obligations?,” International and Comparative Law Quarterly 46 (1997): 586–634. For the issue of privatisation in the development of the US Homeland Security Strategy see Paul Verkuil, Outsourcing Sovereignty. Why Privatisation of Government Functions threatens Democracy and what we can do about it (Cambridge: Cambridge University Press, 2007). Communication on Improved Effectiveness, Enhanced Interoperability and Synergies among European Databases in the Area of Justice and Home Affairs, COM (2005) 597 final, Brussels, 24 November 2005. Ibid., p. 2.

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databases including the Visa Information System.106 The Communication provided a definition of ‘interoperability’, which is the “ability of IT systems and of the business processes they support to exchange data and to enable the sharing of information and knowledge”.107 According to the Commission, interoperability is a technical rather than a legal/political concept.108 This attempt to treat interoperability, which is a term now used widely by EU institutions,109 as a merely technical concept, while at the same time using the concept to enable maximum access to databases containing a wide range of personal data is a striking attempt to depoliticise the issue and shield developments from the enhanced scrutiny that the adoption of legislation in the field would provide.110 The emphasis on the technical and the operational is also seen in the transformation of the State in extraterritorial immigration control, namely the establishment of specialised border control agencies. In the US, where as seen above border security has been a central element of the post-9/11 national security strategy, specific divisions within the Department of Homeland Security have responsibilities for border security aspects, including extraterritorial immigration control.111 In the UK, the newly established UK Border Agency is the focal point for border controls and the development of the e-borders programme.112 At EU level, FRONTEX has been established as a Community agency with specific responsibilities for border management.113 In all three cases, the establishment of agencies has been highly symbolic politically and justified on the grounds of the

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Ibid., p. 8. The Commission also took the opportunity to float proposals for longer-term developments, including the creation of a European Criminal Automated Fingerprints Identification System, the creation of an entry-exit system and introduction of a border crossing facilitation scheme for frequent border crossers, and European registers for travel documents and identity cards (pp. 8–9). Ibid., p. 3. Ibid. See for instance the Justice and Home Affairs Council Conclusions of 5–6 June 2008 ‘on the management of the external borders of the member states of the European Union’, where it is stated that pilot projects developing future EU border management measures should allow for ‘maximum interoperability’ (paragraph 16). See in this context Valsamis Mitsilegas, “Border Security in the European Union. Towards Centralised Controls and Maximum Surveillance” in Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy, ed. Elspeth Guild, Helen Toner and Annneliese Baldaccini (Oxford: Hart Publishing, 2007), 359–394. On the development of the Homeland Security Department in the context of border security see V. Mitsilegas, Borders, Security and Transatlantic Co-operation in the 21st Century, op. cit. See http://www.ukba.homeoffice.gov.uk/aboutus/ See Council Regulation 2007/2004 establishing a European Agency for the ‘management of operational cooperation at the external borders of the Member States of the European Union’. See also Baldaccini in this volume.


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need to provide better co-ordination to State practices of border control.114 In all three cases, the agencies play a central part in extraterritorial immigration control based on the border security model described earlier in the chapter. Delegation of powers from Governments to specialised agencies has by no means limited State power in the field. Rather, these agencies represent additional spheres of State control, without this always being accompanied by clear mechanisms to control and account for this power. This limited accountability is closely linked to a lack of clarity as to the precise powers of the new agencies and their relationship with Governments. These issues arise very prominently in the case of FRONTEX, which present admittedly the additional challenge of involving delegation at a supranational level. FRONTEX has been established as a management agency, and its annual reports are dominated by management-speak and management-style targets. This is another example of the trend towards the depoliticisation of border controls at EU level and fundamental decisions on EU borders strategy being taken on the basis of the FRONTEX operational plan and the decisions of its management board rather than on the basis of a more open debate.115 Its parent Regulation has granted it a number of vaguely defined tasks, such as ‘co-ordination’ of operational cooperation.116 However, FRONTEX cannot fit easily within the various typologies of first pillar Community agencies,117 which have been established primarily in a market regulation context.118 The emphasis on management in the FRONTEX Regulation cannot mask the fact that FRONTEX is essentially an operational agency, involved in actions with a significant impact on the relationship between the individual and the State.119 114

115

116 117

118

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For the US, see the 9/11 Commission Report, op. cit.; for the UK, see Cabinet Office, Security in a Global Hub, op. cit.; for the EU (FRONTEX), see House of Lords European Union Committee, FRONTEX: the EU External Borders Agency, 9th Report, session 2007–08, HL Paper 60 and Mitsilegas, Border Security in the European Union, op. cit. On FRONTEX and depoliticisation, see Mitsilegas, Border Security in the European Union, op. cit. Article 2(1)(a). For attempts at categorisation, see inter alia Edoardo Chiti, “The Emergence of a Community Administration: The Case of European Agencies,” Common Market Law Review 37 (2000): 309–343; and Alexander Kreher, “Agencies in the European Community- a Step towards Administrative Integration in Europe,” Journal of European Public Policy 4 (1997): 225–245. See also the overview by Elen Vos, “Reforming the European Commission: What Role to Play for EU Agencies?,” Common Market Law Review 37 (2000): 1113–1134. See in particular Giandomenico Majone, “The New European Agencies: Regulation by Information,”Journal of European Public Policy 4 (1997): 262–273. See in this context the chapters by Baldaccini and Guild and Bigo in this volume. As Curtin notes, it can be argued that in the case of FRONTEX the Council did not delegate its own existing executive powers but rather the tasks in question had been exercised by Member States: Deirdre Curtin, Executive Power of the European Union. Law, Practices, and the Living Constitution (Oxford and New York: Oxford University Press, 2009), 164.

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As has been demonstrated by a number of chapters in this volume (Baldaccini, Guild/Bigo, den Heijer, but also García Andrade), notwithstanding the growth in FRONTEX activities in recent years, it has been increasingly difficult to pin down its responsibilities when it comes to its action. This difficulty, which stems largely from the constitutional debate at EU level on whether FRONTEX can assume border controls thus far reserved for Member States, is further accentuated in cases of extraterritorial immigration control, where the boundaries of State responsibility are fluid. FRONTEX may be operational in practice, yet it may also claim that it has no responsibility for border controls, as it has merely a ‘co-ordinating’ role.120 It deals in practice with people who may have claims for international protection, yet it may claim that it does not have responsibility for them as it is not an ‘asylum’ agency. It can conclude ‘working arrangements’ with third countries or bodies but claim that these do not have legal force, as legally binding co-operation agreements are for the EU and/or Member States to conclude. FRONTEX can thus act with a minimum of transparency and responsibility, at the same time when Member States increasingly view FRONTEX as an answer to their expectations with regard to their border control responsibilities.121 What is striking in this context is that the EU seems to respond to the challenges surrounding FRONTEX not by the adoption of legislation clarifying the role and responsibilities of FRONTEX, but rather by further compartmentalisation and the establishment of yet more agencies in the field.122

5. Extraterritorial Immigration Control and the Individual: Transforming Identity and Rights Linked with its impact on the State is the impact of extraterritorial immigration control on the individual. The overwhelming emphasis of the chapters in this

120

121

122

See in this context the striking FRONTEX news release according to which FRONTEX ‘would like to state categorically that the agency has not been involved in diversion activities to Libya’, the latter being based on a bilateral agreement between Italy and Libya- http://www.frontex/ europa.eu/newsroom/news_releases/art70.htm See for instance the July 2009 statement of the then Press Secretary of the Greek Government: ‘We have to strengthen FRONTEX activities’: in http://www.kathimerini.gr/4Dcgi/_w_articles_ kathremote_1_16/07/2009_289089 See for instance the Commission proposal for a Regulation establishing a European Asylum Support Office (COM (2009) 66 final, Brussels, 18 February 2009), but also the more recent proposal for a Regulation establishing an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (COM (2009) 293 final, Brussels, 24 June 2009).


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volume has rightly been on the impact of extraterritorial immigration control on individuals’ access to the territory of States exercising such control. Preventing access to the territory (a key aim of extraterritorial immigration control) has far-reaching consequences for the legal status, and consequently for the security and safety of the individuals concerned. The intensification of extraterritorial immigration control by States – and its related aim of evading responsibility for individuals aiming to reach their border – poses significant rule of law challenges (in terms of access of these individuals to a legal process or remedy), but also challenges related to the core of humanity and human dignity (with the devaluation of human life in instances where no responsibility is assumed for search and rescue at sea being a prime example). A further impact on the individual, which this chapter has attempted to highlight, involves the consequences of the emphasis of the securitised extraterritorial immigration control on identity management. While in the 1990s extraterritorial immigration control focused primarily on identifying third country nationals for the purposes of entry in the territory, the new, securitised control is increasingly premised on the collection of every day information on all passengers, for each attempted journey- leading to what Didier Bigo and Elspeth Guild have eloquently called the ‘pixellisation’ of the border.123 Data is collected from various sources, aiming to create a profile of individuals and to track their movements across the globe – with information collected before movement being retained for long periods of time. The quality of information gathered has changed as well, with the State invading further the private sphere by collecting biometrics. All this leads to what Ericson and Haggerty have named ‘the disappearance of disappearance’, a process whereby “it is increasingly difficult for individuals to maintain their anonymity or to escape the monitoring of social institutions”.124 The transformation of extraterritorial immigration control in this manner has profound implications for privacy, identity and citizenship. The ‘pixellisation’ of the border and the tracking of individuals through the constant collection of information which is then checked against various databases represents a fundamental shift in border controls and the relationship between the individual and the State. As has been noted, we are looking at a reversal of the relationship between information and identity: instead of individuals bringing specific, fixed characteristics which can verify their identity, we are now identified prospectively 123 124

See the chapter by Guild and Bigo in this volume. Kevin Haggerty and Richard Ericson, “The Surveillant Assemblage,” British Journal of Sociology 51 (2000): 619. See also, especially on the shift of monitoring from reactive to proactive, Michael Levi and David Wall, “Technologies, Security and Privacy in the post-9/11 European Information Society,” Journal of Law and Society 31 (2004): 194.

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on the basis of the collection of information which is not necessarily intrinsic to oneself (and can change over time).125 This de-humanisation in extraterritorial immigration control is paradoxically also present in the case of control on the basis of biometrics. According to David Lyon, “abstract data pertaining to or derived from bodies is all that is sought for biometric- or DNA-based surveillance. Consciousness, souls, sociality, or whatever else may be thought to make up human beings are actually absent from the requirements of surveillance as understood here. The body is simply a source of data”.126 The reach of the State to the individual along these lines poses a daunting challenge to the individual, which the existing privacy, and data protection legal framework is arguably inadequate to address. Further challenges are posed by the emphasis on technology and databases, which lead to automaticity in decisions on who can travel or not. This automaticity may deny individuality, and a legal remedy: as has been noted, “the codes that determine in which category individuals are placed are related to bodily and behavioural characteristics. This means that the decisions made about the prospects for individuals in questionable categories are likely to be even further abstracted from the struggles and stories of everyday life of which vulnerable people are likely to be most acutely aware”.127 What is perhaps more alarming in this context is the impact of this system of control upon citizenship and the relationship between the individual and the State. The constant checking of new and existing information against databases for all passengers indicates that there is no finality in the process, and no presumption of rights emanating from citizenship. At any time, anybody can be a ‘trusted’ or a ‘suspect’ passenger. As Louise Amoore has noted, “read in this way the border becomes a condition of being that is always in the act of becoming, it

125

Thierry Leterre, “Le Repérage par le Trace Electronique”, in Du Papier à la Biométrie. Identifier les Individus, ed. Xavier Crettiez and Pierre Piazza (Paris: Les Presses Sciences Po, 2006), 290–291. Leterre talks about a …renversement de logique entre l’information et l’identite. La logique de l’encartement veut que nous soyons des individus porteurs de caracteristiques qui revelent notre identite (couleur des yeux, addresse, etc). Dans le cyberspace, en revanche, “il n’y a” que de l’information qui peut etre attribuee, mais seulement de maniere prospective, a un individu. L’identite n’est pas confirmee par une information, comme c’est le cas par exemple, lors d’un controle d’identite ou les indications sur les papiers peuvent se preter a une verification. Elle est presume a partir d;une information, don’t on suppose qu’elle a bien ete produite par quelqu’un….les individus existent souls la forme de transmitteurs selectifs d’informations plutot que sous celle de cellules organiquement liees et sont defines plus par des relations que par des traits intrinsenques.

126

127

David Lyon, Surveillance Society. Monitoring Everyday Life (Buckingham: Open University Press, 2001), 70. Lyon, “National ID Cards”, op. cit.


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is never entirely crossed, but appears instead as a constant demand for proof of status and legitimacy.”128

6. Conclusion Extraterritorial immigration controls have both proliferated and changed in the past decade. These developments have increased the powers of the State, without necessarily extending its responsibility or accountability. The emphasis on security has further transformed State intervention from traditional immigration control to generalised surveillance aiming at prevention. In this light, extraterritorial immigration controls apply not only to foreigners (who face multiplied hurdles in accessing the West), but also to citizens (who, like foreigners, have their personal data collected and monitored). The legal challenges of extraterritorial immigration control are certainly challenges of protection and anti-discrimination, but also increasingly challenges of privacy, identity and citizenship.

128

Amoore, op. cit., 348.

Part II International Law Aspects

The Concept of State Jurisdiction and the Applicability of the Non-refoulement Principle to Extraterritorial Interception Measures Anja Klug and Tim Howe1 1. Introduction The refugee in international law occupies a legal space characterised, on the one hand, by the principle of State sovereignty and the related principles of territorial supremacy and self-preservation; and on the other hand by competing humanitarian principles deriving from general international law […] and from treaty.2

In exercising their sovereign right to decide whom to permit entry into and stay on their territory, States employ different entry management tools. These tools include interception measures, i.e. mechanisms to directly or indirectly prevent, interrupt or stop individuals who do not possess the required documentation from reaching, entering and/or remaining on their territory.3 Traditionally, State authorities have denied admission to persons once they have arrived at or inside the State’s territory or territorial waters. Increasingly, however, countries of destination for migratory movements, that have sufficient means, are also employing measures outside of their own territory to prevent people from accessing their border areas. Examples of such extraterritorial interception measures include the interdiction of vessels on the high seas or in the territorial waters of third

1

2

3

The views expressed are the personal views of the authors and may not necessarily be shared by the United Nations or by UNHCR. The authors would like to thank Thomas GammeltoftHansen, Claire Inder, Sibylle Kapferer and Sophia Schäfer for their comments on, and reviews of, this chapter. Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law, 3rd edition (Oxford: Oxford University Press, 2007), 1. Definitions of the term ‘interception’ are for example provided in Conclusion No. 97 (LIV) – (2003) Protection Safeguards in Interception Measures of the UNHCR Executive Committee, available at: http://www.unhcr.org/refworld/docid/3f93b2894.html [accessed 21 January 2009] and UNHCR, Global Consultations on International Protection/Regional Meetings: Key Conclusions and Recommendations (Regional Meetings in Ottawa, Ontario (Canada), 14–15 May 2001, and in Macau, 28–29 May 2001), 31 May 2001. EC/GC/01/13, at supra 1. Available at: http://www.unhcr.org/refworld/docid/3b36f2cb4.html [accessed 21 January 2009].


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States, and the deployment of outposted immigration officials to prevent irregular travellers from boarding a flight in a third country. When employing interception measures, States are bound by their obligations under international law, including those arising from international human rights and refugee law. The principle of non-refoulement is of particular importance in this respect. This prohibits States from acting to ‘expel’ or ‘return’ individuals to situations where they may face persecution or where their fundamental human rights may be at risk. The principle of non-refoulement was first developed in the framework of international refugee law. Article 33 (1) of the 1951 Convention relating to the Status of Refugees [hereinafter:“1951 Convention”]4 provides that [n]o Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Similar provisions exist under regional law5. Over time, Article 33 has acquired the status of a non-derogable norm of customary international law.6 Non-refoulement obligations have subsequently been developed under international and regional human rights law. The principle of non-refoulement is inter alia applied as a component of the prohibition on torture or cruel, inhuman or degrading treatment or punishment and the right to life.7 The various expressions of the non-refoulement principle in international human rights law and in refugee

4

5

6

7

The 1951 Convention relating to the Status of Refugees, 189 U.N.T.S. 137, entered into force 22 April 1954 [hereinafter “1951 Refugee Convention”]. See Article 2 (3) of the 1969 OAU Convention Governing Specific Aspects of Refugee Protection in Africa. UNHCR, The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93 of 31 January 1994, para 8. In 2002, the Member States to the 1951 Refugee Convention and it 1967 Protocol also issued a common declaration in which they held that the principle of non-refoulement is “embedded in customary international law”. See UNHCR: Declaration of States Parties to the 1951 Convention and or Its 1967 Protocol relating to the Status of Refugees, 16 January 2002. HCR/MMSP/2001/09a, at 4. Available at: http://www.unhcr.org/refworld/docid/3d60f5557.html [accessed 21 January 2009]. See Art. 6 of the 1966 International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, entered into force 23 March 1976 [hereinafter: “ICCPR”] or Art. 2 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 005, 213 U.N.T.S. 222, entered into force 3 September 1953 [hereinafter: “European Convention”]. The Human Rights Committee, the body which is monitoring the implementation of the ICCPR has developed the concept further to prohibit return to any situations where there is a real risk of “irreparable harm.” General Comment No. 20: Article 7 (Prohibition of torture, or other cruel,

Extraterritorial Interception Measures

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law are partially overlapping, but not identical. There are differences in wording, scope and the level of evidence required in order to establish that the obligation has been violated.8 Many States have mechanisms in place to seek to ensure that interception measures on their territory or at their territorial borders comply with such obligations, even if, in practice, these measures may not always be sufficient to prevent refoulement.9 Interception measures employed outside States’ territories, however, rarely include such mechanisms at all.10 The question is thus whether, and to what extent, States are bound by non-refoulement obligations when carrying out interception measures extraterritorially. The geographical scope of human rights obligations is determined by the concept of jurisdiction in several core human rights treaties.11 These obligations include the non-refoulement provisions contained in or deriving from these treaties. Although the territorial scope of Article 33 of the 1951 Convention is not explicitly defined, the complementarity and mutually reinforcing nature of international human rights law and international refugee law speak strongly in favour of delineating the same territorial scope for all expressions of the non-refoulement principle, whether developed under refugee or human rights

8

9

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11

inhuman or degrading treatment or punishment), 10 March 1992, U.N. Doc. HRI/ GEN/1/ Rev.7, at para. 9. See amongst others overview at Elihu Lauterpacht and Daniel Bethlehem, “Scope and content of the principle of non-refoulement,” in Refugee protection in international law: UNHCR’s global consultations on international protection, ed. Erika Feller, Volker Türk, and Frances Nicholson (Cambridge; New York: Cambridge University Press, 2003), Kees Wouters, International legal standards for the protection from refoulement (Leiden: Intersentia, 2008). For the European Convention on Human Rights more specifically see amongst others Nuala Mole, Asylum and the European Convention on Human Rights (Strasbourg: Council of Europe, Directorate of Human Rights, 2007). Such measures include references in national border codes to international refugee law in general, or the non-refoulement principle more specifically, use of questionnaires to explore whether undocumented persons would face risks upon return or the obligation to refer individuals who want to request asylum to the responsible authorities. Whether or not the measures in place are sufficient will need to be assessed, however, on a country-by-country basis. Andrew Brouwer and Judith Kumin, “Interception and Asylum: When Migration Control and Human Rights Collide,” Refuge 21 (2003): 7. Art. 2 ICCPR obliges States to respect the rights recognised in the Covenant “to all individuals within its territory and subject to its jurisdiction”, Art. 2 Convention against Torture obliges State Parties to prevent acts of torture to “in any territory under its jurisdiction”; Art. 1 of the American Convention on Human Rights protects all persons “subject to their [i.e. the State Parties’] jurisdiction” and Art. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) similarly protects everyone “within their [i.e. the State Parties’] jurisdiction.”

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law.12 UNHCR, the organisation mandated with supervising the application of the Convention, takes the position that Article 33(1) may also be applied extraterritorially.13 Based on the jurisprudence of the International Court of Justice (ICJ) and human rights treaty bodies, a number of recent studies have shown that the concept of jurisdiction provides for an extraterritorial application of human rights law.14 The existing studies do not, however, examine in detail which criteria will trigger the establishment of extraterritorial jurisdiction and the subsequent application of the non-refoulement principle in the context of interception measures. This chapter aims to further the discussion by analyzing the criteria for the establishment of jurisdiction under human rights law. After a brief review of the evolution of the concept of jurisdiction under general international law, the chapter examines the jurisprudence of international and regional bodies that have interpreted the concept in their decisions. Finally, the interpretations of jurisdiction developed by different bodies are applied to specific extraterritorial interception scenarios to examine the degree to which they concur with respect to the applicability of the non-refoulement principle.

2. The evolving concept of State jurisdiction The concept of de jure jurisdiction a. Territorial jurisdiction under international law The classical notion of State jurisdiction is closely intertwined with the principle of State sovereignty. In a domestic context, both concepts describe [t]he competence of states in respect of their territory. […] In brief, ‘sovereignty’ is a shorthand for a legal personality of a certain kind, that of statehood; jurisdiction

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The US Supreme Court expressed a different opinion in its decision Sale, Acting Commissioner, Immigration and Naturalization Service, et al., Petitioners v. Haitian Centers Council, Inc., et al., 509 U.S. 155 (1993). In the decision, which addressed the applicability inter alia of Article 33(1) of the 1951 Convention to the return to Haiti of persons intercepted on the high seas by U.S. coast guard vessels, the Supreme Court determined that Article 33(1) of the 1951 Convention is applicable only to persons within the territory of the United States. See UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 26 January 2007. [Hereinafter: “UNHCR Advisory Opinion”] available at: http://www.unhcr.org/refworld/ docid/45f17a1a4.html [accessed 21 January 2009]. On the relationship between international refugee and human rights law see specifically paragraph 34 with n. 70. See e.g. Andreas Fischer-Lescano and Tillmann Löhr, Menschen- und flüchtlingsrechtliche Anforderungen an Maßnahmen der Grenzkontrolle auf See, (University of Frankfurt 2007),


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refers to particular aspects of the substance, especially rights (or claims), liberties and powers.15

Within its territory, a sovereign State is entitled to exercise domestic jurisdiction limited only by rules of international law.16 The three classical forms of jurisdiction are: prescriptive jurisdiction, adjudicative jurisdiction and enforcement jurisdiction.17 b. Extraterritorial jurisdiction The scope of State jurisdiction is more difficult to define with regard to the extraterritorial exercise of State powers. Here, interests of different sovereign States have to be considered. In 1927, the Permanent International Court of Justice (PICJ) issued a landmark decision in this respect. In its famous Lotus decision18, the PICJ stated that States are allowed to exercise criminal jurisdiction (as a form of prescriptive jurisdiction) extraterritorially whenever their jurisdiction does not come into conflict with international law.19 It restricted, however, the extraterritorial enforcement jurisdiction of States, stating that a State may not exercise its powers in any form in the territory of another State […] except by virtue of a permissive rule derived from international custom or from a convention.20

15

16

17

18

19

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Ruth Weinzierl, The Demands of Human and EU Fundamental Rights for the Protection of the European Union’s External Borders, (Berlin: German Institute for Human Rights, 2007). Ian Brownlie, Principles of Public International Law, 6th ed. (Oxford: Oxford University Press, 2003), 106f. See Encyclopedia of International Public Law: “State sovereignty in the sense of contemporary public international law denotes the basic international legal status of a State that is not subject, within its territorial jurisdiction, to the governmental, executive, legislative, or judicial jurisdiction of a foreign State or to foreign law other than public international law” (emphasis added): Rudolf Bernhardt, Encyclopedia of Public International Law (Amsterdam; Lausanne; New York: NorthHolland 2003), 512. See Encyclopedia of International Public Law: “[A] State exercises its jurisdiction by establishing rules (sometimes called the exercise of legislative jurisdiction or prescriptive competence), by establishing procedures thereof (sometimes called judicial jurisdiction or adjudicative competence), and by forcibly imposing consequences such as loss of liberty or property for breaches or, pending adjudication, alleged breaches of the rules (sometimes called enforcement jurisdiction or competence).” Ibid. Case of the S.S. Lotus, Decision of 7 September, PCIJ Series A, No.10 (1927) [hereinafter: “Lotus decision”]. The Court held that “all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction, within these limits, its titles to exercise jurisdiction rests in its sovereignty.” Ibid. Ibid.

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According to the Lotus case, a State can only exercise extraterritorial jurisdiction based on a special entitlement. Such an entitlement can generally be established by treaty, customary international law or the consent of the State on whose territory jurisdiction is exercised. c. De jure exercise of concurrent or competing prescriptive jurisdictions The complex framework of international law in the 21st century is based upon a system of concurrent jurisdictions,21 i.e. the simultaneous exercise of different forms of prescriptive jurisdiction on the same territory or over the same subject matter. International consular law, for example, allows States to exercise specific jurisdiction abroad without questioning the principal jurisdiction of the territorial State. These are recognised forms of de jure jurisdiction that territorial States have acquiesced to by ad hoc consent, by treaty or by customary international customary law. They are thus concurrent to the jurisdictions of the territorial State. Recent State practice allows States to exercise prescriptive jurisdiction beyond their borders if they advance a “legitimate interest based on personal or territorial connections of the matter to be regulated”.22 States have, for instance, invoked a “legitimate interest” to justify the legality of economic regulations or actions producing effects abroad and claimed prescriptive jurisdiction based on a “legitimate interest” in extradition proceedings on the grounds of the personality principle.23 This is a very broad definition of State jurisdiction leaving wide discretion for the interpretation of “legitimate interest”. According to this approach, a State’s assertion of a competing prescriptive jurisdiction on the territory of another State over one and the same situation or person is not per se illegal.24 As long as it is only

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24

Mann already emphasized in 1964 that “[j]urisdiction is by no means concerned only with the problem of ascertaining the State, which, in a given case, has the sole right of regulation. There are many sets of circumstances which, by their nature, more than one State may be entitled to regulate. To a large extent legislative jurisdiction is concurrent rather than exclusive” (emphasis added). Fritz Alexander Mann, “The Doctrine of Jurisdiction in International Law” in Recueil des Cours ed. Academy of International Law (The Hague:Martinus Nijhoff Publishers, 1964), 10. Cedric Ryngaert, Jurisdiction in International Law, (Oxford; New York: Oxford University Press, 2008), 22. This includes foremost the active personality principle by which a State may “assert jurisdiction over the activities of their permanent residents even when they are abroad”, but arguably also the more controversial passive personality principle by which a State may claim jurisdiction “over crimes committed against its nationals whilst they are abroad.” See Robert Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2007), 42. See Ryngaert, supra n. 22 who further suggests an approach of “reasonability” for competing jurisdictions which considers the legitimate interests in light of well-established principles under international law. Ibid., pp.134ff.


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asserted with respect to the specific subject matter, it does not challenge the territorial State’s entitlement to jurisdiction over its territory. State jurisdiction as precondition for the applicability of State obligations Beyond the notion of State jurisdiction as the basis for the authorised exercise of State power, the concept of jurisdiction has been further developed to encompass States’ obligations under international law. Such obligations can exist towards other States or towards individuals. Over the past few decades, this aspect of jurisdiction has been further developed particularly with respect to extraterritorial state action. For instance, in 1996, the ICJ affirmed that State jurisdiction triggers specific State responsibilities under international environmental law: [t]he existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.25

The obligations of States towards individuals are inter alia defined in international human rights law. The following section will examine how the concept of jurisdiction has evolved within this specific legal context and the extent to which it provides for an extraterritorial applicability of non-refoulement obligations.

3. Jurisprudence of international and regional courts and human rights treaty bodies on the extraterritorial scope of human rights treaties The International Court of Justice (ICJ), and several supervisory bodies of international and regional human rights treaties (hereinafter referred to as human rights bodies) such as the United Nations Human Rights Committee, the United Nations Committee against Torture (CAT Committee), the Inter-American Commission on Human Rights (IACHR) and the European Court of Human Rights (ECtHR),26 have examined the territorial scope of human rights treaties and 25

26

ICJ, Legality of Threat or Use of Nuclear Weapons, ICJ Gen. List No. 95, Advisory Opinion of July 8, 1996, at para. 29. The Human Rights Committee is supervising the implementation of the ICCPR (Part IV, Article 28ff.), supra n. 7; the CAT Committee is charged with supervising the implementation of the Convention against Torture (Article 17ff.). The IACHR’s mandate is based on the Charter of the Organization of American States (OAS) (Chapter XV, Art.106) and the 1969 InterAmerican Convention on Human Rights,” Pact of San José, Costa Rica”, 1144 U.N.T.S 123, entered into force 18 July 1978, but the Commission has also interpreted the 1948 American Declaration of the Rights and Duties of Man, OAS Res.XXX, adopted by the Ninth International Conference of American States (1948), as a “source of obligation for the member States not

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defined the concept of State jurisdiction. None of the cases specifically concerned a non-refoulement obligation. However, the deliberations of these bodies on the extraterritorial scope of human rights were not restricted to any specific treaty provision. They reviewed the applicability of the respective convention(s) generally and are therefore relevant for the applicability of the non-refoulement principle. The following analysis examines the situations in which these bodies have found States to have extraterritorial jurisdiction. It will be demonstrated that approaches differ, even within the jurisprudence of each of the respective bodies. The main criteria employed are factual control (over territory or person), de jure jurisdiction, or ‘a personal link’. Although these criteria are not necessarily mutually exclusive, they are considered separately to explore the degree to which the different bodies agree in their decisions. Territorial control According to all bodies, a high level of de facto territorial control establishes jurisdiction: a. Occupied territories and the criterion of ‘territorial control’ The ICJ has explicitly examined the extraterritorial scope of human rights treaties in two cases. Both concerned occupied territories: in its 2004 Advisory Opinion on the “Legal Consequences of the Construction of a Wall in the occupied Palestinian territory” [hereinafter: “Israeli Wall Opinion”] the Court affirmed that Israel’s military activities in the Palestinian territories as an occupying power triggered Israel’s responsibility not only under international humanitarian law, but also under international human rights law.27 In its 2005 Case Concerning Armed Activities on the Territory of the Congo (“Democratic Republic of Congo v. Uganda”)28 the Court held that Uganda was “the occupying power” in the region of Ituri (a province in the North-East of the DRC) at the time under examination. It affirmed that “Ugandan forces in the DRC were not only stationed in particular locations but [had] also […] substituted their own authority for that of the Congolese Government.”29 As occupying power, Uganda had substantial positive obligations under international law which

27

28

29

party to the American Convention and that its Statute authorises it to examine complaints under the declaration.” Coard et al. v. the United States, Case No. 10.951, Report No. 109/99, 29 September 1999, para. 9. The ECtHR mandate is to supervise the implementation of the European Convention on Human Rights (Section II, Article 19ff.), supra n. 7. Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Gen. List No. 131, 9 July 2004. Case Concerning Armed Activities on the Territory of the Congo (DRC v. Congo), (2005) ICJ Gen. List No. 116, 19 December 2005. Ibid. para. 173ff.


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comprised the duty to secure the respect for the applicable rules of international human rights law and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account.30

Similarly, the Human Rights Committee in its 1998 Concluding Observations on the report on the implementation of the International Covenant on Civil and Political Rights (ICCPR) submitted by Israel31 found Israel responsible for violations of the ICCPR in the Palestinian territories. The Committee particularly pointed to “the long-standing presence of Israel in [the occupied] territories, Israel’s ambiguous attitude towards their future status, as well as the exercise of effective jurisdiction by Israeli security forces therein.”32 At the regional level, the IACHR has found that military occupation establishes extraterritorial jurisdiction as a basis for responsibility under international human rights law. In Coard et al. v. United States,33 the Commission held the USA responsible for human rights violations under the American Declaration on the Rights and Duties of Man34 committed during the military action led by US armed forces in Grenada in October of 1983. However, the Commission did not base its decision on the (well-established) territorial control over Grenada exercised by the USA as a result of their military action. Instead the Commission based its decision on the personal control of the US authorities over the complainant. It held that ‘jurisdiction’ may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state – usually through the acts of the latter’s agents abroad.35

The ECtHR decided in several cases concerning alleged violations of the European Convention on Human Rights (ECHR) by Turkish forces in the territory of Northern Cyprus, occupied by Turkey, that the ECHR was applicable to the actions of the Turkish forces abroad.36 It based this conclusion primarily on

30 31 32

33 34

35 36

Ibid., para. 178. Human Rights Committee, CCPR/C/79/Add.93, 1998. Ibid., at para. 10 (emphasis added). The ICJ in its 2004 Advisory Opinion quoted this argument and supported the Committees view. See ICJ, Israeli Wall Opinion, at para. 110. Coard et al. v. the United States, Case No. 10.951, Report No. 109/99, 29 September 1999. Since the USA has not ratified the American Convention on Human Rights, the Commission could only have regard to obligations under the American Declaration, which it nevertheless interpreted as binding on the USA. See supra n. 26. Ibid., para. 37 (emphasis added). See Loizidou v. Turkey (merits), Application No. 15318/89, Judgment of 18 December 1996 and Cyprus v. Turkey, Application No. 25781/94, Judgement of 10 May 2001. See too the report by the European Commission issued in Chrysostomos, Papachrysostomou and Loizidou v. Turkey, Application Nos. 15299/89, 15300/89, 15318/89, Report of 4 March 1991).

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the “effective [territorial] control” criterion as a constituting element for State jurisdiction. This criterion was examined in detail in the ECtHR’s decision in Loizidou v. Turkey (1996)37: in this decision, the Court examined the case of a Cypriot national who was detained by Turkish soldiers in the territory of Northern Cyprus and allegedly ill-treated. The ECtHR found that Turkey exercised “effective control” over Northern Cyprus and was consequently responsible for violations of the ECHR. It argued that in conformity with the relevant principles of international law governing State responsibility, […] the responsibility of a Contracting Party could also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory.38

In all cases concerning the occupation of Cyprus, the Court relied primarily on the objective element of strong military presence of Turkish forces in Northern Cyprus to establish effective territorial control. Correspondingly, it referred to the “continuing inability [of the Republic of Cyprus] to exercise its Convention obligations in northern Cyprus”. The Court also pointed to the “regrettable vacuum in the system of human rights protection” which would follow from a finding that the applicants were not within the jurisdiction of Turkey.39 In conclusion, these decisions of the ICJ and the human rights bodies show that occupying powers exercise extraterritorial jurisdiction over occupied territories by virtue of their de facto control, irrespective of the legality of the action. This jurisdiction not only triggers responsibility for human rights violations which that State commits, but may also render that State responsible for violations of human rights committed by rebel forces or local administrations which come under its overall control.40 More generally, the decisions demonstrate that full de facto control over a territory establishes jurisdiction and triggers the applicability of human rights law, even beyond the specific situation of ‘occupation’. The ICJ in its Israeli Wall Opinion mentioned the situation of occupied territories only as an example.41 37 38 39 40

41

Loizidou v. Turkey (merits), Application No. 15318/89, Judgment of 18 December 1996. Ibid., at para. 52. Cyprus v. Turkey, at para. 78 (emphasis added). See the ICJ’s Democratic Republic of Congo v. Uganda decision, supra n. 30. Also see Loizidou v. Turkey, at para. 56. Note that this assessment has also been referred to by the ECtHR in later decisions such as Banković and Others v. Belgium and 16 Other Contracting States, Application No.52207/99, Admissibility Decision of 12 December 2001, at para. 70. “[I]nternational human rights instruments are applicable ‘in respect of acts done by a State in the exercise of its jurisdiction outside its own territory, particularly in the occupied territories” (emphasis added]: Ibid., at para 111.


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The ECtHR has also based its decisions on the degree of control and not on the existence of “occupation” as such. The Human Rights Committee and the IACHR employed the criteria of personal control which allows for the establishment of jurisdiction in a wider range of situations which include full territorial control. b. The ECtHR’s concept of ‘effective territorial control’ The ECtHR is the only body that has further elaborated on the concept of ‘territorial control’ and on the situations of territorial control, other than in occupied territories, that it might accept as triggering extraterritorial State jurisdiction. In its case-law, the Court has, however, struggled to pursue a consistent standard. While it has set exceptionally high threshold requirements for effective territorial control in some decisions, the Court has shown more flexibility in others. In the cases on Northern Cyprus, the ECtHR found that “overall effective control” over a territory by strong military presence of a State can be sufficient to establish jurisdiction and trigger the application of the ECHR.42 In Issa and others v. Turkey (2004),43 a case in which the ECtHR had to decide on allegations of ill-treatment and killing of seven Iraqi shepherds in Northern Iraq by Turkish soldiers during a temporary military operation between March and April 1995, the Court did not exclude the possibility that effective control could be established during a temporary operation.44 Reiterating that effective territorial control is characterised by a high level of control over territory the Court held, however, that: notwithstanding the large number of troops involved in the aforementioned military operations, it does not appear that Turkey exercised effective overall control of the entire area of northern Iraq.45

The Court compared the case in issue with the situation in Northern Cyprus where troops had been stationed throughout the whole of the territory.46 Since it found no evidence for such a quantifiable degree of control in Issa, it held that the ECHR was not applicable. The Court then further examined, but

42

43 44 45 46

Emphasis added. The ECtHR held: “[i]t is not necessary to determine whether, as the applicant and the Government of Cyprus have suggested, Turkey actually exercises detailed control over the policies and actions of the authorities of the “TRNC”. It is obvious from the large number of troops engaged in active duties in northern Cyprus […] that her army exercises effective overall control over that part of the island.” Loizidou v. Turkey, para. 56. Issa and others v. Turkey, Application no. 31821/96, Judgment of 16 November 2004. Ibid., para. 79. Ibid., para. 75 (emphasis added). Ibid.

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finally rejected, the claim that Turkey had personal control over the alleged victims.47 In the ECtHR’s Grand Chamber decision in Banković and Others v. Belgium and 16 Other Contracting States (2001)48, a landmark decision containing the most detailed elaboration of the Court’s concept of territorial jurisdiction to date, the Court rejected the applicants’ arguments that air strikes on the territory of the Federal Republic of Yugoslavia (FRY) fulfilled the requirements of effective control and that NATO Member states had exercised extraterritorial jurisdiction.49 The Court noted that, unlike the situation of Turkish forces in Northern Cyprus, NATO troops were not deployed on the territory of the FRY, and that NATO Member States involved did not exercise territorial control comparable to the level of control of Turkey in Northern Cyprus.50 The Court rejected the applicant’s argument that the determination of ‘jurisdiction’ can be done by adapting the “effective control” criteria developed in the above-cited Loizidou judgments (preliminary objections and merits) so that the extent of the positive obligation under Article 1 of the Convention to secure Convention rights would be proportionate to the level of control in fact exercised.51

Conversely, the ECtHR held in Banković that obligations under the Convention cannot be “divided or tailored”.52 According to Banković, effective territorial control requires full physical control over a territory. Control of the air space over a territory is not sufficient.53 There has been some debate amongst academics on how to interpret the reasoning of the Court that

47

48

49 50 51

52 53

Note, however, that the Court’s Issa indicated that even where a State did not establish effective territorial control, it may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating – whether lawfully or unlawfully – in the latter State.” Ibid., para. 71. For further discussion see the chapter on the criterion of personal control below. Banković and Others v. Belgium and 16 Other Contracting States, Application No.52207/99, Admissibility Decision of 12 December 2001. Ibid., particularly paras. 54–82. Banković v. Belgium and 16 Others, para. 70 in combination with paras. 74ff. Ibid., para. 46. See also Cerone who has labelled this interpretation of jurisdiction as “all-ornothing view of application of the Convention.” John Cerone, “Out of Bounds? Considering the Reach of International Human Rights Treaties,” Centre for Human Rights and Global Justice Working Paper no. 5 (2006): 25. Banković v. Belgium and 16 Others, para.76. Ibid., para. 75ff.


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the Convention is a multilateral treaty operating […] in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. […] The FRY clearly does not fall within this legal space [i.e. of the European Convention].54

Later decisions of the Court show, however, that the Court did not envisage general exclusion of the application of the ECHR in territories beyond the territories of the Contracting Parties.55 Finally, in its post-Banković decision, Ilascu and others v. Moldova and Russia (2004)56, the ECtHR addressed the question of territorial control from another angle. This complex case concerned alleged human rights violations in Transdniestra, a territory located in Moldova, which is de facto governed by a self-proclaimed government with strong (historical) ties to Russia. In its decision, the Court found that both Russia and Moldova, exercised jurisdiction. The Court based its decision on two important assumptions with regard to effective territorial control exercised in Transdniestra: the Court found that effective territorial control was exercised by the de facto government of the “Moldovan Republic of Transdniestra” (MRT).57 Additionally, it held that the latter was “under the effective authority, or at the very least under the decisive influence of the Russian Federation” as it “survive[d] by virtue of the military, economic, financial and political support given to it by the Russian Federation.”58 Second, the Court in Ilascu established that the territorial State – even though it temporarily lacked effective control over a part of the said territory – still exercised jurisdiction and that its human rights law was applicable.59 The ECtHR found that Moldova in any case retained “positive obligations” on its territory such as

54

55

56 57 58 59

Ibid., para. 80. See (amongst others) Ralph Wilde, “The “legal space” or “espace juridique” of the European Convention on Human Rights: Is It Relevant to Extraterritorial State Action?,” European Human Rights Law Review 10 (2005): 115ff. and Michael Gondek, “Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalisation,” Netherlands International Law Review 52 (2005): 376. See Öcalan v. Turkey, supra n. 70 (regarding alleged human rights violations in Kenya) and Issa v. Turkey, supra n. 43 (regarding alleged human rights violations in Turkey). Ilascu and others v. Russia and Moldova, Application no. 48787/99, Judgment of 8 July 2004. Ibid. para. 330. Ibid., para. 392. “The Court considers that where a Contracting State is prevented from exercising its authority over the whole of its territory by a constraining de facto situation, such as obtains when a separatist regime is set up, whether or not this is accompanied by military occupation by another State, it does not thereby cease to have jurisdiction within the meaning of Article 1 of the Convention over that part of its territory temporarily subject to a local authority sustained by rebel forces or by another State” Ibid., para. 333.

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to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention.60

Control over persons All human rights bodies that have examined the concept of jurisdiction have had to decide cases of detention and/or abduction by agents on/from foreign territories where there was no effective territorial control of the abducting/detaining State. All decided that State exercise extraterritorial jurisdiction in these cases was based on its full control over the abducted person. There is no decision of the ICJ on this issue to date, but the Court in its Israeli Wall Opinion cited the two corresponding cases of the Human Rights Committee, which can be interpreted as support for this criterion.61 The relevant decisions of the Human Rights Committee from 1981 concern Uruguayan citizens who had been abducted by Uruguayan agents abroad. In the case of Lopez Burgos v. Uruguay (1981)62, the applicant, a recognised political refugee in Argentina, was kidnapped by the Uruguayan secret service in Argentina with the support of Argentine para-military groups. The Uruguayan agents first detained and tortured the applicant in Buenos Aires and then brought him to Uruguay where he was again detained and mistreated. The UN Human Rights Committee found that “these acts perpetrated by Uruguayan agents acting on foreign soil”63 brought Lopez Burgos under the jurisdiction of Uruguay for the purpose of Article 2 (1) of the ICCPR. The Committee reaffirmed that the reference in that article is not to the place where the violation occurred, but rather to the relationship between the individual and the State in relation to a violation of any of the rights set forth in the Covenant, wherever they occurred.64

The Committee reiterated its view in Celiberti de Casariego v. Uruguay (1981),65 a case involving a Uruguayan citizen who was arrested by Uruguayan agents (accompanied by two Brazilian officials) in Brazil. 60 61 62 63 64

65

Ibid., para. 331. ICJ, Israeli Wall Opinion, at para. 109. Lopez Burgos v. Uruguay, U.N. Doc. CCPR/C/13/D/52/1979, 29 July 1981. Ibid., para. 12.1. Ibid., para.12.3 (emphasis added). In an appended individual opinion, Committee member Christian Tomuschat added “Never was it envisaged […] to grant State parties unfettered discretionary power to carry out willful and deliberate attacks against the freedom and personal integrity of their citizens living abroad. Consequently, despite the wording of Art. 2(1), the events which took place outside Uruguay come within the purview of the Covenant”: Ibid., Appendix. Celiberti de Casariego v. Uruguay, U.N. Doc. CCPR/C/13/D/56/1979, 29 July 1981. See in particular para. 10.3.


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The CAT Committee in its recent decision, J.H.A. v. Spain of November 2008, concerning the case of 23 Indian nationals rescued and kept in detention for a month in a hangar in Mauritania (also known as the Marine I case), held that the exercise of de facto or de jure control over persons in detention constitutes jurisdiction. Based on its General Comment No.2,66 the Committee observed that [t]he State party maintained control over the persons on board the Marine I from the time the vessel was rescued and throughout the identification and repatriation process that took place in Nouadibou. In particular, the State party exercised, by virtue of a diplomatic agreement concluded with Mauritania, constant de facto control over the alleged victims during their detention in Nouadibou. Consequently, the Committee considers that the alleged victims are subject to Spanish jurisdiction insofar as the complaint that forms the subject of the present communication is concerned.67

At the regional level, the IACHR in Coard et al. v. United States, the case regarding Grenada’s occupation by the USA referred to above,68 similarly based extraterritorial jurisdiction on the control of its authorised agents exercised over persons abroad. The petition in Coard was issued on behalf of seventeen claimants who reported that they had been detained by United States forces during the first days of the military operation, held incommunicado for many days, and mistreated. The Commission recalled that [t]he fundamental rights of the individual are proclaimed in the Americas on the basis of the principles of equality and non-discrimination ‘without distinction as to race, nationality, creed or sex.’[…] Given that individual rights inhere simply by virtue of a person’s humanity, each American State is obliged to uphold the protected rights of any person subject to its jurisdiction. While this most commonly refers to persons within a state’s territory, it may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state – usually through the acts of the latter’s agents abroad.69

In the European context, the Grand Chamber of the ECtHR in its (post-Banković) case of Öcalan v. Turkey (2003)70 found that Turkey had exercised extraterritorial jurisdiction when detaining and abducting its citizen Abdullah Öcalan, the founding leader of the Kurdistan Workers Party (PKK), from Kenya, in cooperation with the Kenyan authorities. The Court held that it was

66

67 68 69 70

General Comment No.2 (2007) states that “the jurisdiction of a State party refers to any territory in which it exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law. See CAT/C/GC/2/CRP.1/Rev.4, para. 16. See J.H.A. v. Spain, CAT/C/41/D/323/2007 of 21 November 2008, paragraph 8.2. See the discussion on territorial control above. Coard et al. v. the United States, para. 37 (emphasis added). Öcalan v. Turkey, Application no. 46221/99, Judgment of 12 May 2005.

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common ground that, directly after being handed over to the Turkish officials by Kenyan officials, the applicant was effectively under Turkish authority and therefore within its ‘jurisdiction’, even though in this instance Turkey exercised its authority outside its territory.71

In the case of Issa v. Turkey (2005), mentioned above72, which concerned alleged human rights violations by Turkish soldiers in Northern Iraq, the ECtHR also indicated that the exercise over persons can trigger State jurisdiction. In Issa v. Turkey, the ECtHR explicitly referring to the decisions of the Human Rights Committee in Lopez Burgos and Casariego and to the IACHR’s decision in Coard 73 remarked that (in addition to effective territorial control) a State may also be held accountable for violations of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating – whether lawfully or unlawfully – in the latter State.74

Although the ECtHR ultimately did not find extraterritorial jurisdiction in Issa v. Turkey as it found no conclusive evidence that Turkish soldiers had conducted military actions in the specific area in question, it nevertheless affirmed the general validity of personal control as a ground for State jurisdiction.75 None of the decisions of the different bodies indicate that the consent of the third State on whose territory the actions took place was decisive for their determination of extraterritorial State jurisdiction.76 The fact that the State had

71

72 73 74 75

76

Ibid., para. 91. Similar the UK House of Lords in Al-Skeini and Others v. Secretary of State for Defense, [2007] UKHL 26, 13 June 2007, concerning the accountability of British soldiers for human rights violations committed on the territory of Iraq. The House of Lords found that the UK had exercised extraterritorial jurisdiction over one of the applicants who had died in a British military prison on Iraqi territory. The Lords based their decision on the Banković decision of the ECtHR. Ibid., see especially § 108. Supra n. 43. Issa v. Turkey para. 71. Ibid. So also Nuala Mole, “Issa v Turkey: Delineating the Extraterritorial Effect of the European Convention on Human Rights?,” European Human Rights Law Review 10 (2005). In Öcalan, the ECtHR examined the role of the Kenyan State, but only in the context of an alleged violation of Art. 5 ECHR (“right to security and freedom”). The Court noted that “[t]he Kenyan authorities did not perceive the applicant’s arrest by the Turkish officials on board an aircraft at Nairobi Airport as being in any way a violation of Kenyan sovereignty” and concluded that the detention was thus “in accordance with ‘a procedure prescribed by law’ for the purposes of Art. 5 § 1 of the Convention.” Öcalan v. Turkey, para. 93ff. “The consent or acquiescence of Kenya was significant to the question of legality of the arrest but immaterial in the context of the applicability of the ECHR.” Gondek, “Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalisation,” 345.


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physical control in these cases seems to have rendered any considerations of the authorization by the territorial State for the action unnecessary. State jurisdiction in these cases was triggered from the first moment that the relevant control was exercised. The criterion of personal control thus depends on the level of physical control and not on the period of time it is exercised. The ECtHR for example found Öcalan to be under the jurisdiction of Turkey “directly after being handed over”. The special cases of flag state jurisdiction and consular jurisdiction Although there are only a limited number of decisions, mainly by the ECtHR, with regard to flag State jurisdiction and States’ consular jurisdiction, they both constitute widely recognised forms of extraterritorial jurisdiction. The ECtHR in its Banković decision generally affirmed that recognised instances of the extra-territorial exercise of jurisdiction by a State include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of that State.77

The ECtHR in two other decisions explicitly confirmed that flag State jurisdiction can give rise to responsibility under the ECHR. The first decision, Xhavara and others v. Italy and Albania (2001)78 concerned a collision between an Italian coast guard ship and a vessel flying an Albanian flag in the Mediterranean Sea. Attempts by the Italian coast guard ship to stop the boat for migration inspection led to a collision between the boats and the drowning of approximately 58 people. For the assessment of this case, it is important to note that Italy and Albania had signed a bilateral agreement, which allowed Italian guards to intercept vessels flying an Albanian flag. The Court in Xhavara found that Italy, as the flag state of the patrol boat, was responsible for the human rights violations caused by its vessel to persons not on board of its vessel.79 Ultimately, however, the Court dismissed the application in Xhavara as it found that Italy had fulfilled its obligation to conduct an independent investigation by introducing criminal proceedings against the commander of the ship. The ECtHR’s decision in Medvedyev and others v. France (2008)80 concerns a case on the high seas in which a French coastguard ship, as part of an international operation against drug-trafficking, had arrested several men with a

77 78

79 80

Banković v. Belgium and 16 Others, para. 73. Xhavara and fifteen v. Italy and Albania, Application no. 39473/09, Admissibility decision of 11 January 2001, (unreported case). Ibid. Medvedyev and others v. France, Application no. 3394/03, Judgment of 10 July 2008.

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significant quantity of narcotics on a ship flying a Cambodian flag. The ECtHR held that France exercised jurisdiction on the high seas and the case was therefore admissible.81 In the examination of the merits of the case, the Court found that the arrest of the applicants by France had not been in accordance with a procedure prescribed by law and that France had thus violated the applicants’ right to liberty under Art.5, 1 of the ECHR.82 However, the ECtHR decided that the applicants’ subsequent detention for 13 days without judicial oversight had been justified by the “wholly exceptional circumstances of that case” (circonstances tout à fait exceptionelles)83, i.e. France’s factual inability to bring the applicants before a judge on French territory. This shows that the Court assessed France responsibility under the ECHR based on France’s capacity to implement its obligation extraterritorially in the specific case. Consular jurisdiction as a form of States’ extraterritorial jurisdiction for the purpose of human rights protection was explicitly affirmed by the European Commission’s84 decision in W.M. v. Denmark (1992)85 and implicitly acknowledged by the Human Rights Committee’s decision in Mabel Pereira Montero v. Uruguay (1983).86 W.M. v. Denmark concerned a citizen of the German Democratic Republic (GDR) who had requested asylum in the Danish embassy but was handed over to the GDR police by embassy personnel. Although the European Commission rejected the case on the merits, it nevertheless clarified that the ECHR generally applied extraterritorially in this case as authorised agents of a State, including diplomatic or consular agents, bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons or property.87

The European Commission indicated that Denmark’s responsibility was proportional to its jurisdictional competences, which were restricted to its specific

81 82 83 84

85

86 87

Ibid., para. 50. Ibid., para 63. Ibid., para 68. The European Court on Human Rights and the European Commission were part of the twotier judicial system. In 1998 a single tier system was introduced and the European Commission was abolished (see Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, E.T.S. 155, entered into force 1 November 1998). W.M. v. Denmark, European Commission of Human Rights, Application No. 17392/90, Decision of 14 October 1992. Mabel Pereira Montero v. Uruguay, U.N. Doc. CCPR/C/18/D/106/1981, 31 March 1983. W.M. v. Denmark., para. 1.


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consular jurisdiction. The Commission also alluded to the responsibility of the GDR as the State on whose territory the action took place: [i]n these circumstances the Commission finds that the applicant was not deprived of his liberty or security of person within the meaning of Article 5 […] of the Convention by an act of the Danish diplomatic authorities but by an act of the GDR authorities.88

Consular jurisdiction was also implicitly confirmed in the Human Rights Committee’s case of Mabel Pereira Montero v. Uruguay, in which the applicant, a Uruguayan citizen living in Germany, applied to the Committee when Uruguayan authorities in the embassy in Bonn had refused, without further explanation, to renew her passport. The Human Rights Committee found that in the case of a citizen residing abroad, Article 2 (1) of the Covenant [i.e. the ICCPR] cannot be interpreted as limiting the obligations of Uruguay under 12 (2) [‘everyone shall be free to leave any country, including his own’] to citizens within its own territory.89

Establishment of jurisdiction based on a ‘personal link’ (‘cause-and-effect’ approach) In some decisions, human rights bodies have established jurisdiction based on a “personal link” between the State and the victim through the State’s action. This has a substantially lower threshold than the criteria of effective control (over territory or person). In Alejandre et al. v. Cuba (1999)90, the Inter-American Commission found Cuba responsible under the American Declaration on the Rights and Duties of Man91 for the downing of two civilian aircrafts in international airspace and over international waters and the subsequent death of the four occupants. Relying solely on the personal link between the Cuban pilots and the passengers of the aircraft, the Commission found that there was “conclusive evidence that agents of the Cuban State, although outside their territory, placed the civilian pilots […] under their authority.” The Commission argued that 88 89 90 91

Ibid. Mabel Pereira Montero v. Uruguay, para. 5. Alejandre Jr., et al. v. Cuba, Case 11.589, Report No. 86/99, September 29, 1999. Like the USA, Cuba has not ratified the American Convention, but the Commission found that “[t]he competent authority of the Commission arises out of the terms of the Charter of the OAS, its Statute, and its Regulations. In accordance with the Charter, all the Member States agree to respect the fundamental rights of individuals, which, in the case of the States which are not parties to the Convention, are those set out in the American Declaration, which constitutes a source of international obligations.”, Ibid., at para.18. Also compare the Commissions’ reasoning in Coard et al v. the USA, supra n. 33.

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the investigation has no reference to the nationality of the alleged victim or his presence in a given geographical zone, but rather to whether in those specific circumstances the State observed the rights of a person subject to its authority and control.92

In the absence of any territorial or physical personal control exercised by Cuba, it was the sheer act of bombing which established the ‘personal link’ and brought the victims under the authority of Cuba. In this case, the Commission thus advocated a “cause-and-effect” approach to jurisdiction.93 The ECtHR pursued a similar approach in its decision Drozd and Janousek v. France and Spain (1992)94: in this case, a Spanish citizen and a citizen of (then) Czechoslovakia were convicted by a court of Andorra to 14 years imprisonment for committing a bank robbery. The prisoners lodged a complaint to the ECtHR arguing that they had been denied a fair trial in Andorra. Referring to the special status of Andorra under international law and the fact that French and Spanish judges had been seconded to Andorran courts, the applicants held that France and Spain were responsible for the conduct of the Andorran authorities. Although the ECtHR ultimately found that the conduct of the judges in Andorra was not attributable to France or Spain, it stated that [t]he term ‘jurisdiction’ is not limited to the national territory of the […] Parties; their responsibility can be involved because of acts of their authorities producing effects outside their own territories.95

Summary of the jurisprudence examined All bodies have affirmed in their jurisprudence that the notion of State jurisdiction in the context of human rights is based upon a protective rationale. For instance, the ECtHR in Issa v. Turkey and the Human Rights Committee in Lopez Burgos v. Uruguay, using almost identical wording, emphasised that State jurisdiction according to the ECHR and the ICCPR cannot be interpreted so as to allow a State party to perpetrate [human rights] violations […] on the territory of another State, which it could not perpetrate on its own territory.96

92 93

94 95 96

Ibid., para. 23 (emphasis added). So also Christina Cerna, “Extraterritorial Application of the Human Rights Instruments of the Inter-American System” in Extraterritorial Application of Human Rights Treaties, ed. Fons Coomans and Menno T. Kamminga (Antwerp, Oxford: Intersentia, 2004). Drozd and Janousek v. France and Spain, Application no. 12747/87, Judgment of 26 June 1992. Ibid., para. 91 (emphasis added). Issa v. Turkey, para.10. The Human Rights Committee in Lopez Burgos v. Uruguay similarly found that the reference in “Article 2(1) of the Covenant [i.e. the ICCPR] […] does not imply that the State party concerned cannot be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another State.” Ibid., para. 12.3.


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The IACHR in Coard held that under certain circumstances, the exercise of [a State’s] jurisdiction over acts with an extraterritorial locus will not only be consistent with but required by the norms which pertain

and that [g]iven that individual rights inhere simply by virtue of a person’s humanity, each American State is obliged to uphold the protected rights of any person subject to its jurisdiction.”97

Similarly, the ICJ – adopting the language of the 2003 Concluding Observations on Israel by the Human Rights Committee – found in its Israeli Wall Opinion that “the provisions of the Covenant [i.e. the ICCPR] apply to the benefit of the population of the Occupied Territories.”98 State jurisdiction as the basis for the applicability of human rights law has primarily been established on grounds of an analysis of the factual situation in the particular case in issue. All decisions examined the existence of a factual link between the applicant(s) and the State accused of a human rights violation. “Facticity” in this regard, “creates normativity”.99 This is different from the examination of the traditional concept of State jurisdiction as providing entitlements, which is based exclusively on an analysis of the legality of a State’s actions and its respect for other States’ sovereign rights.100 According to the jurisprudence of the ICJ and of all human rights bodies, a factual link can be established through control either over a territory or over specific individuals. In most cases to date, the level of control by the State was very high (e.g. situations of occupation, abduction and detention). In such cases, all bodies agreed that control was sufficient to establish jurisdiction. Opinions differ, however, on whether jurisdiction can also be based on less than ‘full control’ over territory or persons. According to the approach to jurisdiction developed by the Inter-American Commission, which also appears to be supported by the Human Rights Committee, the State’s action seems to establish a sufficient level of control. Conversely, the ECtHR has rejected a number of cases based on the argument that the control of the State was “not

97 98

99

100

Coard et al. v. the United States, para. 37. ICJ, Israeli Wall Opinion, at para 10 (emphasis added). Compare Human Rights Committee, Concluding Observations on Israel, CCPR/C0/78/1SR (2003), at para. 11. Martin Scheinin, “Extraterritorial Effect of the International Covenant on Civil and Political Rights,” in Extraterritorial Application of Human Rights Treaties, ed. Fons Coomans and Menno T. Kamminga (Antwerp, Oxford: Intersentia, 2004), 81. See above on the evolution of the concept of State jurisdiction.

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effective”.101 In other decisions such considerations seem to have been less decisive.102 Extraterritorial de jure jurisdiction of a State has generally been regarded as strong evidence for factual control. In Banković, the ECtHR found that States may exercise extraterritorial jurisdiction for the purpose of human rights law where it “through the consent, invitation or acquiescence of the Government of [a] territory, exercises all or some of the public powers normally to be exercised by that Government.”103 The fairly inclusive interpretation of Italy’s (flag State) jurisdiction that the Court developed in Xhavara may have been in part based on the notional consent by Albania to interception measures on ships flying its flag.104 Similarly, the involvement of territorial States in most of the extraterritoriality cases examined above might have impacted on the positive findings of State jurisdiction by the respective bodies.105 In most decisions, a lack of a de jure entitlement to extraterritorial enforcement jurisdiction did not exclude the applicability of human rights law. This is especially apparent in the cases concerning foreign occupation, but also in cases of extraterritorial detention and abduction. In most cases in the latter category, while the territorial State was involved/or had consented to the operation on its territory, this was not treated as a decisive factor by the supervisory bodies when examining whether a State’s extraterritorial action was consistent with its human rights obligations. Only the CAT Committee explicitly clarified that jurisdiction can be established by both de jure entitlement or by de facto control.106 By contrast, in Banković the ECtHR indicated that the interpretation of jurisdiction additional to the factual link has to take into account as to whether or not the exercise of jurisdiction infringes on the sovereignty of another State.

101

102

103 104

105

106

See in particular the decisions of the ECtHR in Issa v. Turkey (supra n. 43) and Banković and others v. Belgium and 16 others (supra n. 48), discussed above with regard to the criterion of effective territorial control. See for instance the cases of Alejandre Jr., et al. v. Cuba by the IACHR (supra n. 90) and of Drozd and Janousek v. France and Spain (supra n. 94), both discussed above. Banković et al. v. Belgium and 16 Others, para. 71. Flag state jurisdiction at the high seas is a particularly complex situation of extraterritorial (de jure) jurisdiction when it comes to assessing States responsibility. The cases of Xhavara and Medvedyev reaffirm that flag States exercise jurisdiction at the high seas when exercising public powers, but that a case-specific assessment of States’ actual capacity is required to establish responsibility for a concrete human rights violation. See the cases of Öcalan v. Turkey, Lopez Burgos v. Uruguay and Casariego v. Uruguay, discussed above. CAT J.H.A. v Spain, CAT/C/41/D/323/2007 of 21 November 2008, paragraph 8.2.


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The concept of jurisdiction developed by the ECtHR in Banković therefore seems to depart from the (exclusively) factual approach adopted in other decisions.107 To date, there has only been one decision (the Ilascu decision by the ECtHR) in which the relationship between extraterritorial de facto jurisdiction of one State and the de jure jurisdiction of the State on whose territory the action takes place has been examined. According to Ilascu, the former does not replace the latter and both States are bound to respect their obligations under international human rights law.108

4. The applicability of the non-refoulement principle in the context of extraterritorial interception measures In this Part, the criteria for the establishment of jurisdiction outlined in the Part II are applied to various extraterritorial interception scenarios. The analysis begins with interception measures in a State’s territorial seas and then proceeds to examine step-by-step successive operations taking place in zones that are incrementally further away from the intercepting State’s territory. The purpose of this Part is to examine the extent to which the various human rights decision making bodies outlined above are likely to concur on the applicability of the non-refoulement principle when a State acts outside of its territory, based on their current jurisprudence.109 Since the applicability of the non-refoulement principle at the State’s border has been amply discussed and is commonly accepted, this scenario has not been included in the analysis.110 Likewise, zones that have been excised from the State’s territory by national law (airports, specific islands etc) have not been examined, since they still constitute part of the State’s territory under international law.111

107

108

109

110 111

For a more detailed account of the ECtHR’s Banković decision, see the critical assessment above. Supra n. 56, discussed above on the criterion of territorial control. Also see CAT General Comment No. 2, supra n. 66. Note that the cause and effect approach to jurisdiction as upheld most explicitly by the IACHR in Alejandre Jr., et al. v. Cuba, supra n. 90 would consider any State action in any interception measures as sufficient for State jurisdiction to be triggered. This approach, which has not yet been accepted by all bodies, will thus not be further discussed in the following part. For further discussion of this approach see however the critical assessment above. See UNHCR Advisory Opinion, supra 13, para. 7. So also the ECtHR in Amuur v. France, 17/1995/523/609, 25 June 1996, see in particular paras. 45ff.

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Interception operations in the territorial sea of the intercepting State The territorial sea (or: territorial waters) is defined as the belt of coastal waters extending 12 nautical miles from the baseline of a coastal state (Article 3 of the United Nations Convention on the Law of the Sea (UNCLOS)).112 According to Article 12 UNCLOS [t]he sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.[…]. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.

While the territorial sea is not part of a State’s territory in a strict legal sense, it is generally considered part of the “sovereign sphere” of the relevant coastal State within the limitations outlined in UNCLOS and by other rules of international law.113 A number of UNCLOS provisions under the international law of the sea confirm the jurisdiction of the coastal State in its territorial waters: while foreign ships enjoy the right of innocent passage in the territorial waters of another State (Art.17 UNCLOS), the enforcement jurisdiction of the coastal State in its territorial waters is “in principle complete.”114 The coastal State is expressly entitled to adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of [amongst others] the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.115

112

113

114

115

The United Nations Convention on the Law of the Sea, 1833 U.N.T.S. 3; 21 ILM 1261 (1982), entered into force 16 November 1994 [hereinafter “UNCLOS”]. UNCLOS has been ratified by 157 States and can be “regarded as a comprehensive statement of the law of the sea for the 21st Century.” Martin Dixon, Textbook on International Law, 6th ed. (Oxford: Oxford University Press, 2007), 209. “[E]ven if some States decide not to ratify and remain outside the Convention regime (such as the USA), many of the principles codified or developed therein will be binding on them as matter of customary international law.” Ibid. So also Mark Pallis, “Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts between Legal Regimes” International Journal of Refugee Law 14 (2002): 343. See Robin Churchill and Alan Vaughan Lowe, The Law of the Sea, 3rd ed., (Manchester: Manchester University Press; Juris Publishing, 1999). The only exceptions under Article 27 and Article 28 UNCLOS are “(a) jurisdiction over crimes committed before a ship, merely passing through the territorial sea, entered that sea; and (b) jurisdiction in civil matters to arrest a ship in connection with liabilities not incurred in connection with its voyage through the territorial sea.” Ibid. Article 21(1) (h) UNCLOS, emphasis added.


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Foreign ships are bound to comply with these regulations and laws issued by the coastal State (Art.21 (4) UNCLOS). The sovereign supremacy of the coastal State in its territorial sea is thus unchallenged.116 The far reaching de jure jurisdiction of the coastal State into its territorial waters is a very strong indication for corresponding de facto control. By undertaking interception operations in that zone, the State shows that it has the capacity to exercise this jurisdiction de facto. In such situations of almost all-encompassing de jure jurisdiction, and a corresponding high level of de facto control, the non-refoulement principle clearly applies, irrespectively of which approach to jurisdiction is applied.117 Interception operations in the contiguous zone of the intercepting State The contiguous zone extends up to 24 nautical miles from the baseline of a coastal State (Art.33 (2) UNCLOS). Principally, the contiguous zone is an area subject to the principle of freedom of the high seas, including freedom of navigation, overflight, and the right to conduct military exercises. Article 33 UNCLOS, however, explicitly allows the coastal State a level of “control necessary to prevent and punish infringements of its […] immigration […] laws”118 within its contiguous zone. The coastal State is thus explicitly entitled to exercise control over the contiguous zone for the purposes of border control. According to Article 33 (1) UNCLOS the coastal State may exercise the control necessary to […] prevent and punish infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea […] and to punish infringement of the above laws and regulations committed within its territory or territorial sea.

This de jure jurisdiction, albeit limited to a specific function (immigration), provides strong evidence for a corresponding de facto control. Where interception measures bring the intercepted persons under the full control of the intercepting State, for example by boarding their vessel, towing it to another location or by

116

117

118

This is also reflected in Article 25 (3) UNCLOS according to which the “[t]he coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercise. Such suspension shall take effect only after having been duly published.” See also Conclusion No. 97 (LIV) 2003 ‘Protection safeguards in interception measures’ of the UNHCR’s Executive Committee: “The state within whose sovereign territory, or territorial waters, interception takes place has the primary responsibility for addressing any protection needs of intercepted persons.” (paragraph (a)(ii), supra n. 3. Emphasis added.

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bringing the individuals on board the intercepting vessel, the non-refoulement principle applies – regardless of which of the criteria developed by human rights bodies are used for the assessment of jurisdiction. However, depending on the significance attributed to the actual level of factual control in a particular situation, it is not clear whether interception scenarios in which States exercise a low degree of factual “control” over intercepted persons (for example by a simple refusal of passage), would also be considered sufficient for the establishment of jurisdiction by the criteria of control elaborated by some of the human rights bodies. There are only a limited number of decisions that address the specific problem of situations where States have de jure jurisdiction, but only limited physical contact and/or control. Xhavara and others v. Italy and Albania suggests, however, that where a State is entitled to carry out interception measures, any action it carries out for this purpose would trigger the intercepting State’s jurisdiction on the high seas.119 Interception operations in the ‘sovereign sphere’ of a third States with the latter’s permission As outlined above, it is the territorial/coastal State which is entitled to exercise jurisdiction in its ‘sovereign spheres’. This includes its territory as well as its territorial seas, and – because of its entitlement to carry out immigration control – it may also include its contiguous zone. It is well-established, however, that third States may also exercise de jure jurisdiction over these areas “through the consent, invitation or acquiescence of the Government [of the territorial State]”.120 The act of one State in allowing another State to carry out migration control on its territory, is an act of jurisdictional deferral entitling the State carrying out such migration control measures to “exercise all or some of the public powers normally to be exercised by that Government”.121 A grant of permission to exercise jurisdiction by the territorial State is a strong indication that the level of de facto control exercised by the intercepting State’s is sufficient to allow for an application of the non-refoulement principle. Where interception measures also involve a high level of physical control over the intercepted persons, jurisdiction is unproblematic. But, as outlined above, even where de facto control is limited, it is nevertheless likely that all human rights bodies would agree on the applicability of the non-refoulement principle.122

119 120 121 122

See the previous discussion on flag State jurisdiction above. Banković and others v. Belgium and 16 other Contracting States, supra n. 48. Ibid. See argumentation above.


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Interception operations on the high seas The freedom of the high seas is a core principle of the international law of the sea. It includes inter alia the freedom of navigation and the freedom of overflight for all States (Article 89 UNCLOS). The high seas may, however, only be used for peaceful purposes. Furthermore, States have to respect applicable norms of international law as well as the rights of other States. In the absence of any territorial jurisdiction, States’ jurisdictional claims on the high seas are largely governed by the principle of flag State jurisdiction. Article 92 UNCLOS stipulates that Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.123

Article 110 UNCLOS explicitly prohibits States from boarding foreign ships under foreign flag State jurisdiction and from exercising any form of jurisdiction save for exceptional circumstances. However, this prohibition does, not apply when there are “reasonable grounds to assume that […] the ship is without nationality” (Article 110(1) (f ) UNCLOS). Here, there is no provision under the international law of the sea which would prohibit States from exercising enforcement jurisdiction, i.e. boarding other ships. In addition, a growing number of bilateral agreements between States reciprocally establish the right to board and inspect vessels on the high seas. Migrants and refugees who travel clandestinely generally use small boats without any flag. States can therefore establish de jure jurisdiction over such vessels and takes steps to implement this is practice including through interception measures. Interception of vessels sailing under foreign flags is also permissible under the law of the sea as long as the consent of the concerned State has been obtained.124 In itself, de jure jurisdiction over other vessels in interception measures on the high seas, albeit limited, provides evidence for a sufficient level of de facto control to trigger the application of human rights law. As outlined above, physical control over intercepted persons would under any of the criteria trigger State jurisdiction; but even where the level of de facto control is limited, it is likely that all human rights bodies would consider that the intercepting State has established jurisdiction.125

123 124 125

Emphasis added. See Medvedyev and others v. France and Xhavara and others v. Albania and Italy, supra n. 80. See argumentation above.

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Extraterritorial de facto jurisdiction in interception measures without entitlement or authorisation If a State intercepts persons on the territory or in the territorial sea of another State, or on a vessel flying the flag of another State, without authorization, it interferes with the other State’s sovereignty. However, only an approach that basis jurisdiction solely on legal entitlement would consider such scenarios outside the applicability of the non-refoulement principle. To date such an approach has been indicated only in Banković.126 In all other decisions, human rights bodies examined only whether States had de facto control and consistently found for State jurisdiction in situations of sufficiently high levels of practical control. If such de facto control is not exercised to a degree which satisfies the criteria of “effective control” developed by the ECtHR,127 i.e. control over an entire territory or part of the sea, the applicability of the non-refoulement principle will depend on whether a lesser level of control is considered sufficient as the basis for de facto jurisdiction. Conclusion The examination in this section has shown that in many of the common interception scenarios the intercepting State acts on the basis of a de jure entitlement. Such legal right may be provided by UNCLOS, other treaties to which the States involved are party128 or through ad hoc consent of the State which otherwise has territorial jurisdiction. In many interception scenarios, a legal entitlement to the exercise of jurisdiction is combined with a high level of de facto control over a territory, the territorial sea or the intercepted persons. Measures which show a high level of control include the boarding or towing of an intercepted vessel, bringing persons onto the vessel of the intercepting State or detaining intercepted persons. According to the criteria developed by human rights bodies, in such situations the intercepting State clearly exercises jurisdiction triggering the applicability of the non-refoulement principle. With regard to interception measures not carried out on fully controlled territory or without full physical control over the intercepted persons, non-refoulement

126 127 128

See in greater detail the critical assessment of the Banković decision below. See above on the criterion of territorial control. Although this has not been examined here, additional legal entitlements may arise from other treaties including the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, both passed by the UN General Assembly on 15 November 2000.


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obligations are only applicable if a lesser degree of control is considered a sufficient basis for the establishment of jurisdiction. Opinions over the jurisdiction of the intercepting State in such scenarios will primarily differ where the intercepting State has no underlying legal entitlement for its interception actions. As indicated in the ECtHR’s Ilascu decision,129 the establishment of jurisdiction as the basis for the applicability of human rights obligations to the conduct of the State acting extraterritorially does not replace the (de jure) jurisdiction of the territorial State. A separate analysis is therefore necessary to assess the obligations of the territorial State under its de jure jurisdiction.130

5. Critical Assessment The establishment of extraterritorial jurisdiction seems to be non-controversial for many usual interception scenarios. There are, however, certain interception measures where the ECtHR may not concur with the other human rights bodies on the jurisdiction of the intercepting State. Two requirements in particular may make the establishment of jurisdiction difficult: 1. the need for a legal entitlement for the establishment of jurisdiction; and 2. the requirement of a high level of factual control. Both criteria are only applied by the ECtHR and only in some of its decisions; and both seem to unnecessarily limit the applicability of human rights law and the non-refoulement principle. Necessity of an entitlement to establish jurisdiction? Banković is the only decision which could be interpreted as making the exercise of (de facto) State jurisdiction for the purpose of human rights protection conditional upon a legal entitlement to jurisdiction under international law. In Banković, the ECtHR emphasised the “ordinary and essentially territorial notion of jurisdiction” and regarded “other bases of jurisdiction [as] exceptional and requiring special justification in the particular circumstances of each case”.131 The decision has been heavily criticised for its overly narrow approach and the ECtHR

129 130 131

Ibid. Ibid. Also see above. Banković and others v. Belgium and 16 Others, para. 61 (emphasis added). Despite its detailed considerations of the traditional notion of State jurisdiction as a concept of entitlement, it is not clear whether the Court regarded de jure jurisdiction as a conditio sine qua non for the applicability of the ECHR, particularly since it also applied a (factual) test of effective territorial control.

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has taken a less restrictive stance in later decisions.132 A number of arguments can be brought forward against the requirement of a legal entitlement or authorisation for jurisdiction. The Court’s position in Banković, that “from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial”,133 limits jurisdiction to one specific form: the jurisdiction of a State over its territory. The decision does not take into account the development of the concept in international law, i.e. its evolution from the all-encompassing power of the sovereign State over its territory to a variety of co-existing forms of jurisdiction which provide legal entitlements in specific areas only.134 The Court did also not examine whether State jurisdiction might adopt a particular form and/or function in the context of human rights law. The objective of the traditional notion of State jurisdiction as a basis for State entitlements is to delineate the spheres of different sovereign States in a way that it respects the sovereignty of each State. This necessarily requires a de jure assessment. Jurisdiction in the context of human rights law, however, serves a different purpose. Here, it defines the applicability of human rights obligations, and thus opens the possibility to assess State responsibility under human rights law. It does not address the question as to whether a State is entitled to act. This is why all bodies, including the ECtHR, have primarily assessed the factual control that States exercise in the relevant situation at hand. It would be misleading to infer from a factual approach that de jure territorial jurisdiction could be replaced by de facto jurisdiction exercised by another State 132

133

134

For a critical assessment of the Banković decision see e.g. Gondek, “Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalisation.”, Rick Lawson, “ Life after Banković: On the Extraterritorial Application of the European Convention on Human Rights,” in Extraterritorial Application of Human Rights Treaties, ed. Fons Coomans and Menno T. Kamminga (Antwerp, Oxford: Intersentia, 2004), Erik Roxstrom, Mark Gibney, and Terje Einarsen, “NATO Bombing Case (Banković et al. v. Belgium et al.) and the Limits of Western Human Rights Protection,” Boston University International Law Journal 23 (2005). Banković and others v. Belgium and 16 Others, at para. 57. See in general support for this approach Dominic McGoldrick, “Extraterritorial Application of the International Covenant on Civil and Political Rights,” in Extraterritorial Application of Human Rights Treaties, ed. Fons Coomans and Menno T. Kamminga (Antwerp, Oxford: Intersentia, 2004). McGoldrick for instance argues that “any answers to extraterritorial application must be determined and consistent with international law principles.” McGoldrick also underlines, however, that “[o]f course international human rights law can and has contributed to the developments of these principles.” Ibid., p. 44. Compare the discussion on the evolution of the concept and particularly on the phenomenon of concurring and competing jurisdictions in Part I on the evolution of State jurisdiction under international law.


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on the same territory and over the same specific subject matter. States’ extraterritorial jurisdiction, in the sense of actions that give rise to the applicability of human rights obligations, must be regarded as concurrent to de jure territorial jurisdiction. This is well illustrated by the ECtHR’s Ilascu decision.135 The violation of the sovereignty of the State lies in the unauthorised action of the third State on its territory and not in the a posteriori assessment of this action under human rights law. Restricting the possibility of State responsibility for human rights violations to only those areas where a State is legally entitled to act would fail to take into account the protective purpose of the concept in the context of human rights law, which all bodies have emphasised in their decisions. The necessity of a high level of de facto control? The ECtHR has in several decisions developed standards for its concept of “effective control” as prerequisite for the establishment of jurisdiction. This standard seems to be much higher than that adopted by other supervisory bodies: it requires a very high degree of control in order to ground the extraterritorial applicability of human rights obligations. Such a narrow approach to jurisdiction has excluded from human rights scrutiny a number of situations where State’s action directly resulted in rights’ violations.136 Interception measures without any direct physical contact between the State officials and the intercepted persons might, on this basis, be excluded from the scope of the ECHR, irrespective of whether or not they directly resulted in refoulement. This interpretation of State jurisdiction may have been developed to ensure that human rights obligations do not extend beyond the actual capacity of a State to meet them. This is a valid concern, but it could be better addressed in other manners. First, jurisdiction can be limited to a specific subject matter.137 An “all or nothing” approach to jurisdiction138 departs from the general evolution of the concept and is also not shared by other human rights bodies. Secondly, the question of State capacity will in any case need to be examined as part of the analysis of State responsibility.139 Jurisdiction is a necessary 135 136

137

138 139

Ilascu and others v. Moldova and Russia, supra n. 56. See for instance the cases of Banković and others v. Belgium and 16 Others and Issa v. Turkey as discussed above. The Court explicitly rejected such a view in Banković, supra n. 49, but also implicitly in its Northern Cyprus line of cases by stipulating a high threshold of effective territorial control. See Part II, 1 on the criterion of territorial control. Supra n. 49. Such as for example done in the ECtHR’s recent Medvedyev and others v. France decision, supra n. 80.

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prerequisite, but does not make an examination of State responsibility superfluous. Jurisdiction and state responsibility are different concepts, which address separate legal questions.140 Jurisdiction only triggers the applicability of human rights law, whereas State responsibility examines whether the State is liable for the violation of a specific human right.141 The ECtHR has frequently discussed questions of attribution142 and of the nature of a specific act as part of their (preliminary) discussion of State jurisdiction,143 an approach for which the Court has been criticised because it “seem[ed] to blur the issue of jurisdiction with the merits of the case”.144 There is of course a certain overlap between the analysis of State jurisdiction and State responsibility. The specific situation defines the scope of jurisdiction i.e. the range of subject matters it encompasses but it also determines to which extend a State is responsible under human rights law. It is important, however, that State jurisdiction is not equated with a State’s responsibility. The latter requires a more detailed analysis of a State’s capacity and conduct in a particular situation, and in respect of the alleged breach of a specific human right. It should, therefore, be part of the examination of the merits of the case. While the ‘full control’ approach categorically excludes any further examination of human rights violations, the separation of the concept of jurisdiction from questions of State responsibility offers the possibility of a differentiated analysis of extraterritorial State conduct. If jurisdiction can be established through any level of control, the subsequent examination of State responsibility with respect to different human rights may come to varying conclusions. A State may be found responsible for having violated one obligation, but not another. With regard to the responsibility of a State outside its territory, the level of obligations the State had in a particular case will have to be specifically examined. Rendering the extraterritorial applicability of human rights law dependent on a high level of factual control would lead to the unacceptable result that even situations of clear extraterritorial de jure jurisdiction could be excluded from human rights scrutiny. Some of the decisions of the ECtHR seem to indicate that the high-level control criterion has to be restricted to situations where legal entitlement is lacking. If, however, de facto control is considered decisive (as the

140 141

142 143 144

So also explicitly McGoldrick, supra n., p. 47. According to the International Law Commission’s Draft Articles on State Responsibility, State responsibility requires an “internationally wrongful act”, i.e. a “conduct consisting of an act or omission [which]can a) be attributed to the State under international law; and b) [c]onstitutes a breach of an international obligation of the State”. See e.g. Loizidou v. Turkey, at para 56, supra n. 37. See e.g. Illascu and others v. Moldova and Russia, supra, n. 56. So Cerone, supra n. 51, p. 31.


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overwhelming majority of decisions analysed in this paper suggest), it is difficult to understand why the level of necessary control varies depending on whether or not a State has de jure jurisdiction.

6. Concluding remarks Despite the existing differences in the interpretation of the concept of jurisdiction, the jurisdiction of the intercepting State and the applicability of the nonrefoulement principle are not controversial in many interception scenarios. Based on the interpretation of jurisdiction in some of the decisions of the ECtHR, it may, however, be difficult to establish jurisdiction in situations where the intercepting State has neither de jure jurisdiction nor a high level of factual control over the intercepted persons. There are convincing arguments for the broad interpretation of jurisdiction developed especially by the Human Rights Committee and the IACHR, according to which any level of control over the affected person(s) provides sufficient basis to establish the State’s jurisdiction. However, the applicability of the non-refoulement principle does not in itself establish the intercepting States’ responsibility for a violation of this obligation. A subsequent legal and factual analysis is necessary in this respect. Inter alia, it would need to be assessed whether the level of obligations to which the nonrefoulement principle commits States differs in an extraterritorial setting and/or depending on the level of control a State has. Further, it would have to be shown that the State’s action or, possibly, inaction in a specific case caused the direct or indirect return of a person to situations where he or she may face persecution or similar serious risks. That would require a thorough examination of all elements of Article 33 of the 1951 Convention and/or the corresponding provisions under international human rights law.145

145

See above n. 7.

The International Law of the Sea and Migration Control Richard Barnes 1. Introduction The protection of human rights and the regulation of migration activities in ocean spaces remains an issue of considerable political and legal importance.1 A number of specific issues remain problematic.2 First, many obligations that require rendering of assistance are poorly drawn and implemented in practice; second, there is a gap between obligations of rescue and any requirement of coastal States to allow disembarkation; third, there are institutional problems of co-ordinating responses to migration and supporting the States and persons affected by migration. More generally, there is a problem of political intractability and concerns about how more specific and binding rules on migration may reduce the scope of State’s sovereignty. In this paper I ask what problems remain that impede the development of a more satisfactory regulatory regime for dealing with the irregular migration of people by sea. To this end, I pose two questions. Firstly, is there something about the way international law (and law of the sea in particular) has developed and is structured that inhibits the effective regulation of irregular maritime migration? The basic premise here is that the study and practice of law often occurs within compartmentalised fields of study and that this serves to immunise specialist fields of study from normative influences in other specialised fields. Although international law of the sea is very much open to influences

1

2

See the Report of the Secretary on Oceans and Law of the Sea, A/63/63/Add 1, 29 Aug 2008, paras. 85–89. European Commission, Reinforcing the management of the European Union’s Southern Maritime Borders, 30th Nov 2006. COM (2006) 733 final. Apart from the papers in this book, see Barbara Miltner, “Irregular Maritime Migration: Refugee protection issues in rescue and interception,” Fordham International Law Journal 30 (2006): 75; Stephen Legomsky, “The USA and the Caribbean Interdiction Program,” International Journal of Refugee Law 18 (2006): 677; Ruth Weinzierl and Urszula Lizzon, Border Management and Human Rights. A Study of EU Law and the Law of the Sea (Berlin: German Institute for Human Rights, 2007). See Richard A. Barnes, “Refugee Law at Sea,” International and Comparative Law Quarterly 53 (2004): 47.


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from general international law, it is less susceptible to developments in international law’s specialised fields such as international human rights law. This has tended to isolate the substantive content of the law of the sea from potentially important humanitarian considerations. Secondly, are there any particular obstacles in the law of the sea to the development of more effective rules on the regulation of migration at sea? As there appears to have been a paucity of significant legal developments in this area, it is essential to understand how general prescriptive process may limit the development of new norms, or point towards their development in a particular way. Against this background, I then consider how irregular migration is regulated under the law of the sea, first looking at how competence to regulate migration at sea is allocated in various maritime zones. I then consider the effectiveness of various rescue obligations, and examine whether or not they provide a suitable point of reference for dealing with incidents of irregular migration by sea. In doing so I also try to identify whether there are any normative trends in the regulation of migration at sea and comment upon these.

2. Field independence and the cross-fertilisation of international legal norms It seems that the age of the generalist is passing in international law. For example, the teaching and practice of international law is often broken down into specialist sub-fields such as international criminal law, international trade law and international environmental law, and, of present concern, the law of the sea and international human rights law. There may be good reason for having this specialisation. It maintains the integrity of a particular sub-field of study. It allows the law to adapt to the nuances of the area so regulated. It may facilitate the development of coherent rules, at least internal to the sub-field of study. In general there can be no assumption that rules, processes and techniques that are used in one area should be used in other areas. Thus commercial law is often regarded as immune to considerations of equity (and justice) in order to ensure clear and precise rules that facilitate trade and permit commercial men to plan their activities. This position reflects the separation of technical maritime rules and wider human rights considerations. Square pegs do not fit into round holes and there is often no good reason for taking into account norms from distant and unrelated areas of law. However, this does not always justify the complete immunity of rules and values in one area of study to normative influences from other areas. International law remains a discreet legal system in its own right, and there are meaningful connections between its norms. The fragmentation of international law and the potential insulation of

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sub-fields of study from rules governing the field as a whole generate the real possibility of conflicting norms and conflicting regimes.3 A number of commentators have remarked upon this fragmentation of international law, that is to say the increased division and specialisation of international law into various fields.4 This fragmentation is both substantive, as the specialisation of law into expert fields indicates, and procedural, with, for example, the development of discreet prescriptive and adjudicatory fora.5 I do not propose to revisit these debates in full.6 However, there are some important points to be made about this process as it pertains to the regulation of migration at sea. Firstly, there is a tendency for people to be educated in specialist fields. There is thus a risk that they will lack an appreciation of the norms, values and structures that shape other areas of law. Second, there is a risk that common principles and rules which shape international law as a whole may be developed in different and incompatible ways in discreet fora.7

3

4

5

6 7

For an excellent analysis of the issues, see the International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. Report of the Study Group of the International Law Commission. Finalised by Martti Koskenniemi. A/CN.4/L.682 (13 April 2006). This is well illustrated by the Mox Plant case. Here the question of the environmental effects arising from the operation of a nuclear facility in the UK was challenged by Ireland. The dispute was raised in three forums: the ECJ, an Annex VII tribunal established under the UNCLOS and a tribunal under OSPAR. Similarly, the substantive issues could have been determined under three discreet rule systems: EC law, the United National Convention on the Law of the Sea (UNCLOS) and the rules of the OSPAR Convention 1992 (Convention for the Protection of the Marine Environment of the North-East Atlantic, (1993) 32 ILM 1072. Crucially, as the International Tribunal for the Law of the Sea observed, even though these rule systems possessed a similar pedigree and meaning, they might not necessarily be applied in the same way. Request for Provisional Measures Order (Ireland v. the United Kingdom) (3 December 2001) ITLOS Reports, paras. 50–51. C. Wilfred Jenks, “The Conflict of Law-Making Treaties,” British Yearbook of International Law 30 (1953): 403; Andreas Fisher-Lescano and Gunther Teubner, “Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law,” Michigan Journal of International Law 25 (2004): 999. On substantive aspects of fragmentation see Marti Koskenniemi and Päivi Leino, “Fragmentation of International Law. Postmodern Anxieties?,” Leiden Journal of International Law 15 (2002): 553; Joost Pauwelyn, Conflict of Norms in Public International Law. How WTO Law Relates to Other Rules of International Law (Cambridge: Cambridge University Press, 2003). On the impacts of fragmentation on dispute settlement see Alan Boyle, “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction,” International and Comparative Law Quarterly 46 (1997): 37. See the ILC study, above note 3. See for example, the Beef Hormones case, where the Appellate Body held whatever the status of the precautionary principle under international law, it was not binding on the WTO.

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Thirdly, in a pluralist society legal institutions and rules are derived from a variety of values and seek to pursue a variety of values. The potential insulation of law within discreet fields undermines this pluralism. Crucially, this may result in reduced opportunities for the cross fertilisation of ideas. Fourthly, there is scope for matters to fall into the interstices between fields of study. Finally, a fragmentary approach may inhibit the development of appropriate solutions, either through the operation of appropriate and inclusive institutional mechanisms or the selective treatment of the issues. It is suggested that the issue of how best to regulate irregular migration by sea bears some of the scars of this fragmentary approach to law-making. For example, irregular migration is largely ignored or treated indirectly by the United Nations Convention on the Law of the Sea (UNCLOS), a point developed in the next section. Furthermore, there is no dedicated forum for dealing with irregular ocean migration, hence the recent ad hoc response to the problem by various agencies, including the UNHCR and IMO. Finally, as will be detailed in section 4(a), the Refugee Convention fails to address the operation of non-refoulement in circumstances when borders are maritime and not territorial, and so not immediately aligned. This has resulted is an unsatisfactory framework for the regulation of maritime migration activities.

3. Attributes defining the contemporary law of the sea Turning now to the second issue: Are there certain attributes of the law of the sea that obstruct the development of rules for dealing with irregular migration activities at sea? Contemporary law of the sea is largely synonymous with the UNCLOS.8 However, one must not assume that this quasi-constitution for the oceans provides a detailed rule-set for dealing with all ocean affairs. Some matters are dealt with by rules adopted after the entry into force of the UNCLOS, and customary international law continues to evolve quite apart from the strictures of the convention. However, the central position of the UNCLOS in the law of sea means that legal development should be sensitive to the convention. It is suggested that there are six attributes that influence the development of the law of the sea, and hence the regulation of migration activities in ocean spaces. These points need to be considered in more detail.

8

European Communities-Measures Concerning Meat and Meat Products (Hormones) 13 February 1998, WT/DS26/AB/R, WT/DS48/AB/R, paras. 123–125. 1833 UNTS 396; (1982) 21 ILM 1261.


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UNCLOS norms are not self-executing Many of the UNCLOS’s provisions are not self-executing. This means that such provisions must be implemented through domestic legislation before they give rise to legally enforceable rights and duties, at least as far as private persons are concerned. One consequence of this is that international obligations can be avoided or shaded through the process of transposition.9 One immediate consequence of this may be to undermine both the harmony and consistency of the regulation of maritime spaces and activities.10 As far as migration by sea is concerned, whilst the law of the sea may provide a broad framework for regulatory activities, and even be a source of specific rules concerning the rescue and treatment of migrants, in practice we remain heavily dependent upon the transposition of such international duties into domestic law to make them effective.11 In the context of irregular migration, the difficulty is that whilst States may be under certain obligations in respect of search and rescue under international law, the failure by States to give effect to such obligations under domestic law may render them empty of meaning, especially as other States may have little interest in ensuring third State compliance with international law.

9

10

11

See Barnes, above note 2, 54. Also Rolf E. Fife, ‘The duty to render assistance at sea: some reflections after Tampa’ in Nordic Cosmopolitanism: Essays in international law for Martti Koskenniemi, ed. Jarna Petman and Jan Klabbers (Leiden: Martinus Nijhoff, 2003), 469–484. This problem that this may pose for the regulation of maritime issues is illustrated in the Intertanko case. Case C-308/06. For some background to this decision see Richard Barnes and Matthew Happold, “‘Intertanko’ Case referred to the European Court of Justice,” International Journal of Marine and Coastal Law 22 (2007): 331–338. Here the general nature of the convention’s obligations was critical to a challenge to an EC Directive that was claimed to be at odds with the Community’s obligations under international law. The EC is a party to UNCLOS. See Sonia Boelaert-Suominen, “The European Community, the European Court of Justice and the Law of the Sea,” International Journal of Marine and Coastal Law 23 (2008): 642, esp. 663–673. The ECJ found that the UNCLOS’s main objective is ‘to codify, clarify and develop the rules of general international law relating to the peaceful cooperation of the international community when exploring, using and exploiting marine areas’. Crucially, it continued to find that the convention ‘does not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States, irrespective of the attitude of the ship’s flag State’. Intertanko case, paras. 55–65. As such, the UNCLOS could not be used to challenge the validity of a Community measure taken in light of that Convention. Whether or not another judicial forum would have adopted the same approach is a moot point, but so far as EC law is concerned, the ECJ has narrowed the scope for challenging Community law in light of alleged breaches of the Community’s international obligations. See Barnes, above note 2, 50.

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The UNCLOS is primarily concerned with the allocation of authority Much of the history of the law of the sea has been concerned with defining the extent and nature of coastal State and flag State authority over ocean space.12 Unsurprisingly, this is reflected in the UNCLOS, which is primarily concerned with the allocation of competence between coastal States and flag States.13 Arguably the most important provisions of the UNCLOS concern the delimitation of certain maritime zones within which States enjoy certain rights and responsibilities: the territorial sea, contiguous zone, archipelagic waters, continental shelf, exclusive economic zone and high seas. In section 4, the suitability of the general jurisdictional framework is considered in detail. At this stage it is important to observe that the UNCLOS is silent on matters of migration by sea and provides no specific guidance on how to deal with issues such as people smuggling and irregular migration.14 Although States were aware of such concerns at the time when the convention was being negotiated, the reasons for their absence are not clear. They may have been deemed not important enough to merit inclusion in the final text, or were thought best dealt with through the ascription of general regulatory competence to States. Alternatively, they may have been regarded as best left to regulation in different fora. The recent work of the IMO and UNHCR indicates that any such assumptions were misplaced. This means that although the UNCLOS may provide the jurisdictional framework for the regulation of migration matters, this framework is unsympathetic to the particular interests at stake. This does not prevent States from developing new rules to regulate such activities, but it does mean that such rules should be coherent with this general framework.

12

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This tension between exclusive and inclusive authority over ocean space is revealed most explicitly in the work of McDougal and Burke. Myres S. McDougall and William T. Burke, The Public Order of the Oceans (New Haven: Yale University Press, 1962). Rather than enunciating detailed substantive rules regulating specific activities within such zones, UNCLOS lays down some general competences of States therein. There are some exceptions to this, in respect of the regulation of navigational rights, the regulation of living and nonliving resources and the protection of the marine environment. Other instruments have been adopted to deal with such matters outside of the UNCLOS. See for example, the United Nations Convention against Transnational Organised Crime, UN Doc. A/55/383 at 25 (2000). Reproduced in (2001) 40 ILM 335. See particularly, Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Crime. GA Res 55/25, annex III, U.N. GAOR, 55th Sess, Supp No 49, at 65, UN Doc. A/45/49 (Vol. I) (2001). Reproduced in (2001) 40 ILM 384. See further the chapter by Obokata in this volume.


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The law of the sea forms an integrated network of rules and principles The UNCLOS is an integrated framework of rules and this means that at a legal and political level many rules are linked. Accordingly changes to a rule in one area may influence the operation of a rule in other areas. Indeed, as the preamble to the UNCLOS states: “[t]he problems of ocean space are closely interrelated and need to be considered as a whole.” The convention was prompted by a desire to settle all matters related to the use of ocean space, hence its claim to establish a ‘legal order for the seas and oceans.’ For the most part this claim can withstand critical scrutiny. However, if we recall that the principal focus of the UNCLOS is on the allocation of authority, control of living and non-living resources, setting shipping standards and the protection of the marine environment, then this presents a considerable obstacle to the future regulation of irregular migration by sea. The UNCLOS was as much a political as a legal settlement. The comprehensive nature of the issues attended to during the negotiations, and the way with which these were dealt with resulted in the adoption of a package deal, where groups of States gained support for certain measures in return for concessions in other areas.15 Indeed, UNCLOS was successful largely because of the consensus-based negotiating process.16 An important consequence of this is that matters are not easily separated and capable of adjustment in isolation. To the extent that issues concerning the regulation of migration fall out with the general provisions of the UNCLOS, they may prove difficult to regulate without upsetting the balance of interests so embodied in the convention. The desire to protect the integrity of the convention leads us to our next point: that the UNCLOS is difficult to amend. The UNCLOS is difficult to modify or amend The UNCLOS contains a number of provisions specifically designed to preserve its integrity. Article 309 precludes reservations or exceptions, unless expressly permitted by the convention. Article 311 precludes States Parties from concluding incompatible inter se agreements. Any such compatible inter se agreements must be notified to other States Parties. The amendment procedures under Articles 313–4 set such a high threshold for their instigation that they are unlikely

15

16

See Hugo Caminos and Michael R. Molitor, “Progressive Development of International Law and the Package Deal,” American Journal of International Law 79 (1985): 871. Barry Buzan, “Negotiating by Consensus: Developments in Technique at the UN Conference on the Law of the Sea,” American Journal of International Law 75 (1981): 324.

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ever to be used.17 This serves to protect the carefully negotiated balance of interests embodied in the convention. Along with Article 311, these provisions make it very difficult for States to modify or adapt rules of the law of the sea as codified in the UNCLOS. This observation applies most readily to the questions of jurisdiction, which are explicitly dealt with in the convention. For matters omitted by the UNCLOS, the opportunities for new rules may be somewhat less restricted. In the case of irregular migration, it is suggested that new rules concerning the conduct of migration control activities could develop within the framework of existing rules, as long as these do not seek to modify existing rules on jurisdiction.18 The UNCLOS does contain internal mechanisms for change that permit the precise articulation or evolution of its general rules. These mechanisms are particularly important in allowing the development of highly technical rules, or facilitating the adaptation of regulatory standards, in light of changed circumstances. Thus, certain provisions of the UNCLOS allow for the articulation of detailed implementing measures by way of rules of reference.19 Other provisions deal with the development of regional rules.20 However, what may be noted here is that none of these general mechanisms for change deals explicitly with the issue of migration by sea, but are largely limited to matters concerned with shipping standards and pollution control. This does not necessarily prevent their application to irregular migration, although care must be taken not to go beyond the scope of the enabling provisions of the UNCLOS. A number of important agreements, including SOLAS and the International Convention on Search and Rescue, have been developed in precisely this way, and have touched upon the control of maritime migration, although primarily in the context of search and rescue commitments.21 However, these do not fully address the wider question of

17

18

19

20

21

See David Freestone and Alex G. Oude Elferink, “Flexibility and Innovation in the Law of the Sea: Will the LOS Convention amendment procedures ever be used?” in Stability and Change in the Law of the Sea: The Role of the LOS Convention, ed. Alex G. Oude Elferink (Leiden: Martinus Nijhoff, 2005), 169–221. For a review of the relevant jurisdictional and substantive rules, see further sections 4(b)–(g) below. Incorporation by reference is facilitated by: Article 22(3)(a) on sea lanes in the territorial sea; Article 39(2) on shipping standards; Article 41(3) on sea lanes in straits; Article 53(8) on archipelagic sea lane passage; Article 60(3), (5) and (6) on the removal of offshore installations; Article 61(3) on marine living resource conservation; Article 94(5) on shipping standards; Article 119(1) (a) on living resources on the high seas; Articles 197, 201, 202, 211(1),(2), (5), 6(a) and (c), and 226 on pollution standards; Articles 262 and 271 on marine scientific research. The adoption of regional and global agreements in mandated by Articles 69(2) and (3), 98(2), 125(2), 197, 207(4), 208(5), 210(4), 211(3), 212(3), and 243. See further section 5 below.


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control of migration activities. Indeed, beyond those basic humanitarian provisions dealing with rescue, the UNCLOS is remarkably devoid of any provisions dealing with broad human rights matters. This seriously limits the capacity of the UNCLOS to facilitate measures concerning irregular migration by sea. The law of the sea is part of general international law It must be stressed that the law of the sea forms part of general international law. It must also be sensitive to general developments in international law. This means that it is subject to the same constraints that shape the operation of public international law. Although the UNCLOS is more difficult to amend or develop than other international agreements, such opportunities for change remain under general international law. In particular, the law of treaties provides that subsequent agreements, practice and relevant rules of international law between the parties to a treaty are relevant to its interpretation.22 This provides a highly flexible approach for the evolution of treaty obligations.23 However, the use of such interpretative methods must remain faithful to the ordinary meaning and context of the treaty in light of its object and purpose.24 Such matters have been examined in greater detail by Campbell McLachlan and Alan Boyle, so we need not rehearse them further.25 What we may observe is that scope exists for developing the law of the sea through treaties and general international law. This development of the law of the sea has occurred most readily in the fields of fisheries and resource regulation, shipping, and environmental protection. In practical terms, the effectiveness of any such development is contingent upon a general acceptance by the States Parties to the UNCLOS, either through widespread participation in treaty-making processes or acquiescence. That the law of the sea is part of general international law requires it to be coherent with a wider body of international rules and procedures.26 As indicated

22 23

24 25

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Article 31(3) of the Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331. Such an approach has been endorsed by the ICJ. See the Namibia Advisory Opinion [1971] ICJ Rep 16, 31; Aegean Sea Continental Shelf case [1978] ICJ Rep 3, 32–33; Oil Platforms case [2003] ICJ Rep 1, paras. 40–41. Article 31(2) of the Vienna Convention, above note 22. See Campbell McLachlan, “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention,” International and Comparative Law Quarterly 54 (2005): 279; Alan Boyle, “Further Development of the Law of the Sea Convention: Mechanisms for Change,” International and Comparative Law Quarterly 54 (2005): 563. A number of writers require law to have coherence, both as a form of reasoning and in a more narrow legal sense of ensuring that individual rules are not in conflict with each other. See generally, Neil MacCormick, Rhetoric and the Rules of Law (Oxford: Oxford University Press, 2005), chapter 10.

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in section 2, what is crucial here is deciding what constitutes the relevant field of law for the purpose of determining coherence. In the context of irregular maritime migration, the question is the extent to which human rights considerations form a relevant and formal component of traditionally maritime type rules under the law of the sea. Professor Oxman has stressed that the UNCLOS seeks to pursue certain community interests and he associates these with human rights.27 However, we must be careful about reading quite discreet types of obligation into the convention de novo. This point is central to the entire debate about irregular migration and assistance to persons in distress at sea, particularly when dealing with legal questions about what States can and cannot do in areas beyond their exclusive territorial jurisdiction.28 In the Bankovic case, the ECtHR emphasised the exceptional nature of extraterritorial jurisdiction, although it admitted that such jurisdiction may arise when the State exercises effective control over a territory.29 The somewhat restrictive approach advanced by the ECtHR in this decision is reflected in some domestic US jurisprudence.30 In contrast, the Human Rights Committee has advanced a wider scope of application of obligations under the ICCPR.31 It is arguable that the HRC’s approach was endorsed by the ICJ in the Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion.32 The extent of the extraterritorial application of human rights treaties is a debate very much in its infancy. As such some general observations will have to suffice. Firstly, much of the above discussion of the extraterritorial application of human rights has occurred in the context of military conflicts and the conduct of armed forces. It is not yet clear that 27

28 29

30 31

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Bernard H. Oxman, “Human Rights and the United Nations Convention on the Law of the Sea” in Politics, Values and Functions, International Law in the 21st Century, Essays in Honor of Professor Louis Henkin, ed. Jonathan I. Charney, Donald K. Anton and Mary E. O’Connell (The Hague: Nijhoff, 1997), 377–404 at 382. See further section 4 below. Bankovic and others v. Belgium and others (Appl No 52207/99) Admissibility Decision of 12 December 2001, 11 BHRC 435, para. 71. However, in other cases, the ECHR has adopted a broader approach to jurisdiction. See for example, Oclan v. Turkey (2000) 30 EHRR CD 231 (Admissibility); Oclan v. Turkey (2003) 37 EHRR 10 (Merits); Issa and Others v. Turkey (Appl. No. 31821/96) Admissibility Decision 30 May 2000. For a critical account of the Bankovic decision, see Matthew Happold, “Bankovic v Belgium and the Territorial Scope of the European Convention on Human Rights” Human Rights Law Review 3 (2003): 77. US v. Duarte-Acero, 296 F.3d 1277. Human Rights Committee, General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13 (2004), para. 10. See further Segio Euben Lopez Burgos v. Uruguay, Communication No R.12/52, UN Doc Supp No 40 (A/36/40) at 176 (1981); Lilian Celiberti de Casariego v. Uruguay, Communication No 56/1979, UN Doc CCPR/C/OP/1 at 92 (1984). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, (2004) ICJ Rep 136, paras. 109–113.


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peacetime policing activities would be regarded in the same way. Secondly, human rights rules are increasingly of concern as a systemic feature of international law, rather than being a discreet field of endeavour, and there appears to be increasing acceptance that human rights should receive extraterritorial application.33 Thirdly, some law of the sea instruments, namely the Guidelines on the Treatment of Persons Rescued at Sea, open up the possibility of a greater role for human rights and humanitarian considerations in the law of the sea by making them relevant to legal discourse in the law of the sea.34 This approach, which avoids squarely addressing conflicts between norms in discreet legal fields, links to the final observation; the tendency of the law of the sea to seek ‘regulation’ of matters through the use of soft law norms. The increased use of soft law norms A period of sustained standard setting, in which the adoption of the UNCLOS represented a most significant outcome, is now giving way to a period of consolidation. By this we mean that there is greater concern with ensuring acceptance of and compliance with existing rules and standards, rather than generating new rules and standards.35 Consolidation is to be achieved by encouraging States to participate in existing treaty regimes, reinforcing compliance and dispute settlement mechanisms, and meeting any practical obstacles to implementation. The latter aim in particular has been facilitated by the proliferation of a wide range of programmes, guidelines, memoranda of understanding and codes of conduct.36 Such measures provide a flexible toolkit of approaches to assist States in meeting

33

34 35

36

See Fons Coomans and Menno T. Kamminga ed., Extraterritorial application of human rights treaties (Antwerp: Intersentia, 2004); Also Ralph Wilde, “Legal ‘Black Hole’?: Extraterritorial state action and international treaty law on civil and political rights,” Michigan Journal of International Law 26 (2005): 739; Maria-Teresa Gil-Bazo, “The Practice of Mediterranean States in the context of the European Union’s Justice and Home Affairs External Dimension. The Third Safe Country Concept Revisited,” International Journal of Refugee Law 18 (2006): 571. IMO Doc. MSC.167(78). See David Anderson, “Freedom of the High Seas in the Modern Law of the Sea” in The Law of the Sea. Progress and Prospects, ed. David Freestone, Richard Barnes and David Ong (Oxford: Oxford University Press, 2006), 327–346 at 345. See for example, the FAO, Code of Conduct on Responsible Fishing (FAO: Rome, 1995); FAO, International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries. International Plan of Action for the Conservation and Management of Sharks. International Plan of Action for the Management of Fishing Capacity (Rome: FAO, 1999); FAO, International Plan of Action on Illegal Unreported and Unregulated Fishing (Rome: FAO, 2001). In the context of shipping, see the voluntary IMO Member States Audit System, IMO Doc Res A.974(24). The Jakarta Mandate adopted under the framework of the Convention on Biological Diversity has been influential in the context of marine biodiversity. Decision II/10 of the Second Conference of Parties to the CBD.

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their existing commitments. In contrast to detailed, binding rules, they possess the advantage that they can be adapted to suit individual States’ particular geographic, social, economic and political circumstances. The proliferation of such measures, and the seeming absence of any political will to adopt new conventions dealing with maritime migration, suggests a degree of caution must be exercised with respect to calls for new legal instruments. Consistent with this general trend towards the use of non-binding or soft law instruments, a number of key documents concerning migration at sea have been adopted. These are considered in more detail in section 4 below. Summary What lessons are we to take from this brief reflection upon the law of the sea? Firstly, any measures designed to facilitate the regulation of maritime migration must be consistent with the existing law of the sea, and, in particular, wellestablished rules on jurisdictional competence. Secondly, given the absence of provisions dealing explicitly with migration at sea, it may be more advantageous to address the issue of migration by sea outside of the context of the law of the sea. Indeed, to the extent that irregular migration by sea is viewed as primarily a humanitarian/human rights matter, then it may be best dealt with in fora designed to achieve those purposes. This may have the advantage of avoiding some of the law-making limitations inherent in the UNCLOS, such as the lack rules of reference or difficulties in initiating the formal amendment procedures. However, even if irregular migration is addressed in other fora, this still requires some sensitivity as to how jurisdiction is controlled under the UNCLOS. This preserves the primacy of flag State control in maritime spaces beyond the territorial sea. Thirdly, although the prospects of any formal changes to the UNCLOS are unlikely in the short term, this does not mean that existing UNCLOS rules cannot be applied in a manner more sympathetic to human rights concerns. Furthermore, in some cases it will be possible to evolve existing law of the sea rules to accommodate the human rights concerns that arise with irregular migration by sea. Such developments are most likely to take the form of nonbinding measures.

4. International law of the sea and the regulation of migration: extraterritorial asylum claims States’ authority to regulate maritime migration raises two broad concerns. First there is a question about the geographic scope of obligations arising under the Refugee Convention, and secondly, the issue of States’ jurisdiction to regulate


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the migration of people in specific maritime areas. In both instances, the operation of the law needs to be measured against the way in which maritime migration activities actually occur in practice.37 In many cases maritime migration takes place on small boats. Often these are small wooden fishing vessels or pleasure craft with under-powered outboard engines. Such craft are illequipped for long ocean voyages or use at any distance from the shore. This may result in them getting into serious difficulties. They are usually unnamed, unregistered and lacking other documentation or identifying features. Indeed, many such boats lack a crew or master. This makes the application of ordinary maritime rules more difficult in practice, such rules being designed for vessels that willingly comply with the requirements of order at sea by retaining a formal link with one flag State or another. General observations on the scope of the non-refoulement obligation At issue in most instances of migration by sea is the meaning and scope of States’ duty of non-refoulement. More specifically, at what point does the right arise, and does the refusal to admit a person to one’s territory constitute a breach of the right codified in Article 33 of the Refugee Convention. There is no doubt that a person must be outside the country of their nationality in order to invoke international protection as a refugee.38 Similarly, there is little doubt that the duty of non-refoulement arises within States’ territories.39 However, this does not guarantee that States are bound by the duty in international areas.40 Indeed, the extraterritorial application of the obligation of

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The Maritime Safety Committee of the IMO at its 73rd session in 2000 agreed to establish a biannual reporting procedure for the collation and dissemination of data on unsafe practices associated with the trafficking or transport of illegal migrants by sea. See MSC/Circ.896 on Interim measures for combating unsafe practices associated with the trafficking or transport of illegal migrants by sea. Between 1 Jan 1999 and 31 Dec 2007, 1253 incidents of unsafe maritime migration involving 61806 persons were reported. See MSC.3/Circ.14, 11th Jan 2008. Article 1A(2) of the Refugee Convention. Also, para. 88 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, UN Doc HCR/IP/4/Eng/REV 1 (1992). Hereinafter, “UNHCR, Handbook”. This was reaffirmed in R v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants), [2004] UKHL 55. Minister for Immigration and Multicultural Affairs v. Khawar [2002] HCA 14, para. 42; Minister for Immigration and Multicultural Affairs v. Ibrahim [2000] HCA 55. The US Supreme Court rejected the application of the Refugee Convention in Sale v Haitian Centers Council, 509 US 155, 162 (1993); The Prague Airport case (above n 38) might be taken as authority for that position. However, the judgment should be confined to the situation where a claim of asylum is denied by virtue of the applicant having failed to leave the country or origin, even if entering a visa control area that is subject to the jurisdiction of the destination country.

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non-refoulement is the object of considerable debate.41 However, for present purposes, the question of whether the duty of non-refoulement has extraterritorial effect is somewhat moot, because the duty only applies when the expulsion or return of the person is “to the frontiers of territories where his life or freedom would be threatened”.42 In most cases of maritime interdiction or refusal of entry, this does not automatically entail refoulement and so no breach of any duty of non-refoulement occurs. It is generally agreed that any determination of the status of a refugee is declaratory. A person is a refugee by virtue of the fact of being outside the country of their nationality, having fled due to a well-founded fear of persecution. Status as a refugee does not depend upon any constitutive act of the State processing the claim.43 Thus, in principle, a person possesses the refugee status before her appearance at the border. As Gilbert suggests, it is analogous to a doctor’s diagnosis of a medical condition.44 A person’s condition does not depend upon the diagnosis, the diagnosis merely reveals the pre-existing state of affairs. If this is the case, then any failure by a State to accord refugee status, even at a point before entry to its territory may constitute a breach of Article 33. However, it is suggested that this misrepresents the nature of States’ obligations under the Refugee Convention. To continue with the metaphor, even if a patient has a medical condition, they must still undergo a diagnosis before they are entitlement to receive their prescription. Ultimately it is the right, like the diagnosis, that is of practical importance to the individual. What Gilbert seems to be suggesting is that a denial of diagnosis or the chance to have one’s claim to asylum processed amounts to a breach of the 1951 Convention. This poses an important question: Does a refusal to diagnose, or the taking of action which prevents the diagnosis of a claim, amount to a breach of international law? There appears to be growing support for a norm of refugee status determination in the iterations of the UNHCR and in academic literature.45 However, whilst the present author is willing to concede that an obligation of refugee status determination may exist, this only occurs at a border or point when the obligation of non-refoulement (narrowly construed)

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See above, and the chapter by den Heijer in this volume. Article 31(1), Refugee Convention. UNHCR, Handbook, above note 38, para. 28. ‘Editorial’ International Journal of Refugee Law 18 (2006): 487, at 488. See also para. 28 of the UNHCR Handbook, above note 38. Mark Pallis, “Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal Regimes,” International Journal of Refugee Law 14 (2002): 329, at 345; Legomsky above note 1, 686; Erika Feller, “UNHCR and the International Protection of Refugees: Current Problems and Future Prospects,” International Journal of Refugee Law (Supp.) 2 (1990): 335, at 340.


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arises.46 This position is supported by State practice, which locates the existence of an obligation to determine Status at the border, or within territories, and not extraterritorially.47 Whilst this may result in undesirable gaps in refugee protection, this narrow approach is the one that is used in practice.48 Internal waters and ports Internal waters lie within the baseline that is used to delimit the territorial sea from other maritime zones. The normal baseline is drawn along the low-water line along the coast, but also includes features such as reefs, ports and low-tide elevations. States often utilise straight baselines which connect the outmost points of the coastline along deeply indented coasts. This can bring considerable areas of coastal waters within the regime of internal waters. In general, port facilities comprise part of the coast and hence the territory of a State.49 Internal waters and port areas are subject to the full sovereignty of the coastal State, who may regulate all matters pertaining to irregular migration for all vessels in port regardless of their flag status. Although there is no provision within the Refugee Convention that establishes the precise point at which an obligation to consider a request for asylum arises, it might be argued that once a person is within the geographic area of a port he may lodge a claim of asylum meriting due consideration by the port State.50 Of course, in practice such claims must be presented to and processed by public authorities, typically at customs or immigration facilities. For any such right to be meaningful it is contingent on facilitating access to

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Narrowly construed means when the act of return necessarily results in the refugee being returned to the State of nationality, as opposed to mere rejection at a frontier where options to travel elsewhere exist. See Article 3(1) of Council Regulation 343/2003 of 18 February 2003, establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national. Also Rule 343 of the UK Immigration Rules. As Lord Hope indicated in the Prague Airport case, ‘we must take the Rules as we find them’. Above note 38, para. 53. Article 11 of the UNCLOS provides the outermost permanent harbour works which form an integral part of the harbour system are regarded as forming part of the coast. For example Rule 343 of the UK Immigration Rules provides that asylum will be granted to an applicant who is ‘in the United Kingdom or has arrived at a port of entry in the United Kingdom’ (emphasis added). However, s. 11(1) of the Immigration Act 1971 provides that a person is not deemed to have arrived in the UK unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer’. This suggests that mere presence upon a vessel within a port will not constitute the point at which a claim of asylum must be met.

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public authorities capable of receiving a claim of asylum. This may be impeded by either a denial of access of a vessel to port facilities, or a refusal to permit disembarkation of persons from a vessel once they are within a port facility. If a right to claim asylum does crystallise as soon a person enters a port facility or internal waters, then it becomes crucial to understand the rules that govern access to such ports or internal waters. There is no general right of entry for vessels into the ports of third States. There may be a presumption that ports are open to merchant traffic, but this does not amount to a right of entry.51 Unless such a right is provided for in a specific treaty, then entry remains a privilege.52 Even when States do establish rights of entry under bilateral treaties, coastal States will usually retain the right to deny entry when vital interests are threatened.53 Doctrinal opinion is predominantly in favour of States having the power to limit entry to their ports,54 and Churchill and Lowe note that it would be difficult to establish that any such interests invoked by the State were inadequate to justify closure.55 Arguably, this extends to migration control related activities. The only possible exception to this relates to vessels in distress, which is discussed below. Here the distinction between legitimate migration control activities and humanitarian assistance may become difficult to distinguish in practice. Once vessels are within port facilities the issue becomes one of how to deal with or facilitate individual claims to asylum. As a general rule individuals do not enjoy an automatic right to disembark from a vessel once in port. This much

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A. Vaughan Lowe, “The Right of Entry into Maritime Ports in International Law,” San Diego Law Review 14 (1977): 597, at 619. In the Nicaragua case, the ICJ confirmed that internal waters are subject to the sovereignty of the State and that it is ‘by virtue of its sovereignty that the coastal State may regulate access to its ports.’ ICJ Reports (1986) 14, at paras. 212–213. A reciprocal right of entry exists under Article 2 of the Convention and Statute on the International Regime of Maritime Ports 119 BFSP (1924) 568; 58 LNTS 287. Rights of entry may also be established under bilateral treaties. See Aldo Chircop, “Ships in Distress, Environmental Threats to Coastal States and Places of Refuge: New Directions for an Ancien Regime,” Ocean Development and International Law 33 (2002): 207, at 210. However, these agreements are not of a ‘norm creating character’ and do not establish a customary right of entry. See for example, Article 16 of the Maritime Ports Convention, above note 52. Also Article 5(2) of the Convention for the Facilitation of International Maritime Traffic, which provides for denial of entry on the grounds of ‘public morality, order, and security or to prevent the introduction or spread of disease or pests affecting public health, animals, or plants’. (1965) 4 ILM 501. See McDougal and Burke, above note 12, p. 93; Daniel P. O’Connell, International Law of the Sea (Oxford: Clarendon Press, 1982), 848; Louise de La Fayette, “Access to ports in international law,” International Journal of Marine and Coastal Law 11 (1996): 1. Robin R. Churchill and A. Vaughan Lowe, The Law of the Sea 3rd ed (Manchester: Manchester University Press, 1999), 62.


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is implicit in the fact that States frequently provide for such privileges under bilateral agreements.56 Of course, a restricted application of the right to control access to and from vessels would clearly frustrate the operation of Article 31 of the Refugee Convention, which provides that persons must present themselves without delay to authorities and show good cause for their illegal entry or presence. Furthermore such persons should not be penalised simply by virtue of their illegal entry or presence in a State, and it cannot be doubted that persons located within ports are present in a State. As such, it could be argued that States ought to permit the disembarkation of persons from vessels in port facilities. When a refugee is lawfully within the territory of a State, and if presence upon a ship in port is considered to satisfy this requirement of lawful presence, then a refusal to permit disembarkation would effectively deny the operation of Article 31(1). Moreover, if at this point, the port State is in possession of information that establishes a prima facie right to asylum (such as evidence of the individual’s personal and national identity and a statement of facts in support of a claim of admission) then it could be claimed that a refusal to permit disembarkation and access to determination procedures could amount to an expulsion without a decision on the validity of a claim of asylum being made according to due legal process.57 There are also well-established rules relating to asylum claims made onboard vessels. As a general rule merchant vessels in foreign ports cannot be used to provide refuge for persons seeking political asylum.58 This is because such vessels fall under the plenary jurisdiction of the port State. An adjunct of this rule is that when a vessel carrying political refugees arrives in the port of a State that enjoys jurisdiction over its nationals, the local authorities have the power to arrest persons of that nationality on board the vessel. An exception to this rule applies to the situation of refugees aboard warships. Although warships should refrain from admitting persons charged with non-political crimes aboard, once aboard, the coastal State cannot compel or resort to force to obtain such persons. In such 56

57

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See for example, Article V of the Agreement on Maritime Transport (China and United States) 1988, 1555 UNTS 266; Article 12 of the Agreement Between the Government of the Federal Republic of Germany and the Government of the Republic of Chile concerning Maritime Transport 1995, 2053 UNTS 278. Article 7 of the Agreement on Maritime Transport between the Governments of the Member Countries of the Association of Southeast Asian Nations and the Government of the People’s Republic of China 2007. Available online at http://www .aseansec.org/21156.htm (accessed 3 November 2009). Article 32(2). This also seems consistent with Hathaway’s position on irregular entrants seeking to avail themselves of entry to refugee status determination procedures. James C. Hathaway, The Rights of Refugees Under International Law (Cambridge: Cambridge University Press, 2005), 178ff. See C. John Colombos, The International Law of the Sea (London: Longman, Green and Co., 1954), 248–249.

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cases, the coastal State must resort to diplomatic measures to obtain jurisdiction over such persons. Notably this rule applies to non-political crimes, and in cases of persons fleeing political persecution, the captain of a warship may be at liberty to admit such persons to his vessel.59 Colombos give several examples of persons being granted asylum aboard vessels.60 What may be noted is that asylum as applied here tends to be regarded as a privilege, and one that is granted to known individuals, rather than being support for the view that rights of asylum, in the sense we understand them under the Refugee Convention, arise for all persons present aboard warships in the ports of third States. Territorial sea The territorial sea is a band of waters adjacent to the coastline measuring 12 nm from the baseline. Within this zone, the coastal State exercises sovereignty, subject only to the requirements of innocent passage. Coastal States are entitled to regulate migration activities within their territorial sea and this clearly extends to measures intended to prevent the infringement of immigration laws. This is provided for by Article 21(1)(h) of the UNCLOS, which explicitly provides for the power to enact laws relating to passage to prevent the infringement of customs, fiscal, immigration or sanitary laws and regulations of the coastal State. Such laws must be duly published and all vessels must comply with them. Such laws must also be in conformity with other provisions of the convention and other rules of international law.61 Therefore the authority of coastal States to regulate the passage of vessels carrying migrants is limited by customary international law and any other treaty commitments that the coastal States has assumed. There is little doubt that coastal States have jurisdiction to regulate irregular migration activities occurring in the territorial sea, and such jurisdiction is commonly exercised in practice. It is notable that criminal jurisdiction may be exercised against ships passing through the territorial sea only if the consequences of the crime on board the vessel extend to the coastal State, or the crime is of a kind to disturb the peace of the coastal State or good order of the territorial sea, or assistance is requested by the master or agent of the flag State’s, or measures are required to suppress drug trafficking.62 This suggests some limits to the scope of coastal States’ regulatory 59

60 61 62

See Arnold McNair, “Extradition and Extraterritorial Asylum,” British Yearbook of International Law 28 (1951): 172. Also, William E. Hall, A Treatise on International Law 8th ed. (Oxford: Clarendon Press, 1924), 247 and John Westlake, International Law (Cambridge: Cambridge University Press), vol. I, p. 268. Colombos, above note 58, pp. 206–207. Article 21(1) and (3). Article 27(1).


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authority, although much clearly depends upon a coastal State’s determination of whether or not the consequences of the illegality occurring aboard the vessel extend to the coastal State under Article 27(1)(a). At the very least, however, it requires that certain activities, such as illegal migration, must be prospectively criminalised under domestic law before enforcement jurisdiction is exercised against the vessels of third States. There can be no enforcement action where there is no crime. This much is consistent with the principle nullum crimen, nulla poena sine lege. A more difficult question to answer is whether or not the entry of persons onboard ships into the territorial sea amounts to entry within the territory of the State, thereby triggering the application of the rules on asylum. More specifically, do refugees who present themselves at the edge of the territorial sea or cross into such waters satisfy the requirements of Articles 31 to 33 of the Refugee Convention? The Executive Committee of the UNHCR (ExCom) has indicated that the State in whose territorial waters an interception takes place has primary responsibility for addressing the protection needs of intercepted persons.63 This makes some sense given the extent of exclusive coastal State authority in this maritime zone. However, caution must be exercised in reading too much into this. Certainly, in contrast with internal waters or ports, there are a number of reasons for treating entry into the territorial sea as not triggering the full operation of the above provisions. Firstly, in practice it may be difficult to ascertain precisely when entry into territorial waters occurs. Entry into a port or internal waters is much easier to ascertain and thereby provide a more transparent means of identifying the point in time when certain rights and responsibilities crystallise. As noted above, this also provides a practical opportunity for persons to disembark, receive whatever assistance they require and to have their claims of asylum processed accordingly. Secondly, States have a legitimate interest in patrolling and maintaining the integrity their borders to prevent illegal migration. To extend the application of the Refugee Convention to the outer limits of the territorial sea, or indeed any further, may render it practically impossible for coastal States to control illegal migration. Finally, persons aboard vessels in the territorial sea generally remain under the jurisdiction and control of the flag State, at least in so far as their presence on the vessel poses no threat to the peace, good order and security of the coastal State.64 Given the potential issues arising from the exercise of concurrent jurisdiction in the territorial sea for matters occurring on board vessels, it seems preferable to have a single locus of responsibility for dealing with asylum claims. 63

64

ExCom, Conclusion on Protection Safeguards in Interception Measures. No 97 (LIV) 2003, para. (a)(1). See generally, Churchill and Lowe, above note 55, pp. 93–100.

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A key difference between internal waters and the territorial sea is the existence of a right of innocent passage, which permits the vessels of third States to navigate the territorial sea subject to certain limitations. Central to the present discussion is Article 19(2)(g) of the UNCLOS which provides that the passage of a vessel is rendered non-innocent if the vessel engages in “the loading, unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State”. Here an important distinction needs to be drawn between vessels deliberately engaged in irregular migration activities, and vessels that find themselves carrying migrants due to circumstance, for example by responding to a distress call. Although it is clear that ships engaged in illegal migration activities cannot avail themselves of the right of innocent passage, the position of other vessels carrying asylum seekers is less clear. In practice, the position is hampered by the difficulty of identifying the nature of the activity, and the precise scope of innocent passage.65 Whether or not a vessel is in breach of the conditions of innocent passage is, in part, a question of fact. This may be ascertained by boarding and investigation of the ship. Yet it also turns on the correct interpretation of Article 19, and whether or not it is exhaustive of the activities rendering passage non-innocent. If it is not exhaustive then it follows that the coastal State may enjoy a discretion to characterise a broader range of migration matters as prejudicial to their ‘peace, good order or security’ and to take action against suspect vessels. Goodwin-Gill and McAdam take the view that Article 19 is exhaustive of the prejudicial activities rendering passage non-innocent, thereby limiting the authority of coastal States.66 However, this position is far from being settled as a matter of law.67 A number of commentators do not regard the list as exhaustive, although much of their concern relates to the carriage of hazardous materials and substandard ships.68

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The position is complicated by the certain the existence of certain search and rescue obligations and the existence of possible exceptions for vessels in distress. This is considered below in section 5. They merely cite as authority Pallis, above note 45, 356. Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law 3rd ed. (Oxford: Oxford University Press, 2007), 273. Churchill and Lowe, above note 55, pp. 85–86. Weston D. Burnett, “Mediterranean Mare Clausum in the Year 2000?: An International Law Analysis of Peacetime Military Navigation in the Mediterranean,” Naval Law Review 35 (1985): 75, 108; Erik J. Molenaar, Coastal State Jurisdiction over Vessel Source Pollution (London: Kluwer Law International, 1998), 195; Kari Hakapää and Erik J. Molenaar, “Innocent passage – past and present,” Marine Policy 23 (1999): 131, at 132; Colin B. Picker, “Fishing for Answers in Canada’s Inside Passage: Exploring the Use of the Transit Fee as a Countermeasure,” Yale Journal of International Law 21 (1996): 349, at 375; Lindy S. Johnson, Coastal State Regulation of International Shipping (Dobbs Ferry, NY: Ocean Publications Inc., 2004), 64–66.


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The present writer is of the opinion that limitations on sovereignty should not be presumed.69 It is certainly arguable, at the very least, that coastal States may take other steps necessary to protect their security. This is consistent with a contextual reading of Article 19, and, in particular, subsection 19(2)(l), which provides for “any other activity not having a direct bearing on passage”. In the absence of conclusive State practice, there is nothing in the language of Article 19 to suggest that only the listed activities render passage non-innocent. Moreover, an open ended approach to Article 19(2) is congruent with the intention of the drafters of the provision.70 Thus restrictions on the list were explicitly rejected during the drafting process.71 It was also confirmed that Article 19(2) was subject to the ejusdem generis rule of interpretation.72 The contrary view is largely based upon the Uniform Interpretation of Norms of International Law Governing Innocent Passage concluded between the USSR and the US, which states that Article 19(2) is exhaustive.73 Although this constitutes the view of two powerful maritime powers, given that the USA is not a party to the UNCLOS, this cannot be regarded with too much weight in terms of subsequent practice for the purpose of Article 31(3) of the Vienna Convention on the Law of Treaties. Moreover, State practice seems to support the interdiction of vessels in the territorial sea for matters that are not explicitly listed in Article 19(2).74 Accordingly, coastal States

69

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The so-called Lotus presumption, which provides that States are at liberty to act unless there is a rule constraining this. See the Lotus case, (1928) PCIJ Series A, No 10, p. 18. Myron H. Nordquist et al., United Nations Convention on the Law of the Sea: a Commentary (London: Martinus Nijhoff, 1993), vol. 2, p. 177. Cf. Article 27 which clearly limits the enforcement of criminal jurisdiction to a specified list of activities. However, it should be noted criminal jurisdiction and non-innocent passage are not mutually dependent and so any analogy about the extent of each provision should be discounted. A careful examination of the convention’s travaux indicates that although a number of delegations desired objective criteria for innocent passage, and the International Chamber of Shipping expressed concerns about the open-ended nature of Article 19, these views were not carried over into the text of Article 19. Ibid., pp. 173, 174, and 176–177. Ibid., p. 171. Reproduced in 14 Law of the Sea Bulletin 12–13 (1989). Most notable here is the Interdiction Principles for the Proliferation Security Initiative, Sept 4, 2003. Para. 4(d) mandates the interdiction of vessels in the territorial sea reasonably suspected of carrying weapons of mass destruction or components thereof. Text available at http://www.state. gov/t/isn/c27726.htm (accessed 5 November 2009). See further Richard Barnes, “Policing the Oceans: The Proliferation Security Initiative,” Yearbook of New Zealand Jurisprudence 8 (2005): 51. Specifically on the matter of irregular maritime migration, Australia has intercepted vessels suspected of carrying irregular migrants in its territorial sea on a number of occasions. See for example the SIEV (Suspected Illegal Entry Vessel) Incident no. 9 of 31 October 2001. Noted in the Report of the Select Committee for the inquiry into a certain maritime incident, Government Members Report, Appendix 1, pp. 544–546, para. 1.49–1.58. In European waters, interdiction

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enjoy a wide measure of discretion to determine the innocence of passage, and to take action against vessels engaged in irregular migration activities, intentionally or otherwise. This leads us to consider what steps that coastal States may take to prevent passage that is non-innocent. The key provision is Article 25, which permits the coastal State to take ‘necessary steps’. It is suggested that in all cases, the exercise of enforcement jurisdiction must be consistent with requirements of general international law concerning the use of force and police powers.75 Of course, what amounts to a reasonable use of force is often quite subjective.76 Although Article 25 does not explicitly permit removal of ships from the territorial sea, this must be considered as implicit in the convention. First, vessels exercising noninnocent passage become subject to the full jurisdiction of the coastal State.77 Second, innocent passage is akin to a privilege, subject to certain conditions. If the right is lost, then there is no basis in law for the vessel being present in the territorial sea. As such the coastal State must be entitled to remove it. Third, the right of removal exists under customary international law.78 The UNCLOS also makes explicit provision for two further types of protective measure that coastal States may take against vessels regardless of the nature of their passage. First, the coastal State is entitled to take steps to prevent vessels proceeding to internal waters, or port facilities outside internal waters, from breaching any of the conditions for admission to such areas.79 Thus coastal States may prescribe conditions for admission to ports, such as ensuring respect for immigration rules, which vessels entering the territorial sea with a view to using port facilities must respect. Second, the passage of any vessel may still be suspended in accordance with Article 25(3), which provides: The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent

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activities have been taking place under the auspices of Frontex, the EU border control agency. See Thomas Gammeltoft-Hansen, The Refugee, The Sovereign and the Sea: EU Interdiction Policies in the Mediterranean. DIIS Working Paper no 2008/6, p. 16. Also Gil-Bazo, above note 33. See for example, the I’m Alone case, a British flagged vessel suspected of breaching US prohibition laws was pursued and sunk by US authorities. Here the arbitral commission held that the US was entitled to ‘use necessary and reasonable force for the purpose of effecting the objects of boarding, searching, seizing and bringing into port the suspected vessel’. (1935) III RIAA 1609, 1615. See for example the steps taken by Australia to prevent the Tampa’s entry into Australian ports. See Barnes, above note 9, p. 51. Churchill and Lowe, above note 55, pp. 87 and 95–100. See for example the ‘Attican Unity’. Netherlands Supreme Court, 7 Feb, 1986. Reproduced in 101 ILR 436. 1982 Convention, Article 25(2).


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passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published.

The requirement of non-discrimination seems to militate against ad hoc suspensions of passage. Moreover, it is also limited specified areas of the territorial sea, and this seems to imply that suspension cannot apply to the whole of the territorial sea. Finally, suspension can only take effect after being duly published. This reaffirms that ad hoc suspension of particular ships is not permitted. It may be that a consistent and generally applied policy of suspending passage to vessels suspected of engaging in certain activities might satisfy these activities. However, such a policy would be difficult to apply in practice, and would undermine the essential navigational guarantees protected by Part II, section 3 of the UNCLOS. It is suggested that the existence of a right of innocent passage provides good reason for treating entry into the territorial sea as entry for the purpose of triggering the application of the Refugee Convention. If the provisions of the Refugee Convention became operative upon entry into the territorial sea, then a potential conflict arises between Article 31, which prevents the imposition of penalties on refugees on account of their illegal entry, and Article 25(1) of the UNCLOS which permits coastal States to take action necessary to prevent noninnocent passage. Furthermore, it would open the door to a claim that some obligation of refugee status determination arises at this point of entry into the territorial sea, and would require any action to expel the vessel to be subject to due legal process as per Article 32 of the Refugee Convention. It may be argued that such problems already arise in respect of the application of the Refugee Convention to land territory. However, the key distinction is that under the law of the sea, the right of innocent passage permits the entry of non-nationals and foreign flagged vessels as a right, whereas entry into land territory remains subject to the discretion of the State. In effect, the full application of the Refugee Convention to the territorial sea would effectively negate or severely constrain the authority of coastal State to control non-innocent passage. To summarise, the potential interference posed to the right to regulate navigation in the territorial sea goes far beyond limited aims of the Refugee Convention to restrict the undue penalisation of illegal immigrants. Given the already considerable practical difficulties of regulating maritime activities, the application of the full provisions of the Refugee Convention to the territorial sea would provide an unworkable basis for dealing with migration issues, especially in the context of organised people smuggling. International straits At no point so far have I sought to challenge the claim that States are bound by the obligation of non-refoulement in any maritime zone under their authority.

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Rather what has been asserted is that no right to claim asylum arises in States maritime zones and that rejection at the frontier of a maritime zone does not necessarily amount to refoulement. However, there is one qualification to this latter point. Where the maritime boundary for the territorial sea constitutes the only boundary with the other State from which the persons are fleeing, then States are prohibited from either refusing a vessel permission to enter its territorial sea or forcibly returning the vessel into the territorial sea of the State of origin. For example, in the Dover Channel, the UK could not refuse a vessel carrying French asylum seekers fleeing France entry into UK territorial waters. This type of situation arises when the coastlines of opposite States are less than 24nm. It also arises in the case of international straits. In such circumstances, there appears to be little option for the receiving State other than to admit the vessel into its territorial waters, and ultimately into port, or ensure its passage through its territorial waters into the waters of a third State, where this is possible. Contiguous zone The contiguous zone is a band of waters running from the outer limits of the territorial sea to 24 nautical miles.80 According to Article 33(1) of the UNCLOS, within this zone, “the coastal State may exercise the control necessary to (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within it territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea”. GoodwinGill and McAdam indicate that in extreme cases where the incursion of illegal immigrants presents a danger to the preservation of the State there is authority for the coastal State to act to prevent the incursion, but continue to question what action is permissible in less serious cases.81 This is perhaps indicative of the general uncertainty as to the precise scope of Article 33.82 It is suggested that the threshold for control is not limited to extreme cases that threaten the preservation of the State, but extends to any situation where there is a reasonable risk of

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Article 33(2), UNCLOS. Above note 66, p. 276. There is a lack of coherent and uniform practice by States in respect of contiguous zones. Notably, recent practice indicates how States are looking to develop their authority to regulate a wider range of matters in waters beyond the territorial sea. For example, the US has asserted authority over both fishery and narcotics matters in the contiguous zone. See, respectively, Taiyo Maru (1974) 395 F. Supp 413 and US v Gonzalez (1985) 776 F. 2d. 931. Australia has also been proactive here with respect to the institution of the Border Protection Command. See http://www. bpc.gov.au/default.asp (accessed 5 November 2009). This practice is indicative of a trend towards consolidating coastal State control over activities posing a potential threat to domestic order. The crucial determinant of the legitimacy of such measures will be the reaction of flag States to any enforcement measures by coastal States.


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any domestic law being breached. Subsection (a) explicitly covers immigration matters, and this should be sufficient to cover any matter arising with migration of people by boat, whether this is legal or not. Whilst this may not permit the arrest of the vessel because no crime has yet been committed, it would certainly permit the coastal State to board the vessel for inspection purposes.83 It also permits the coastal State to exercise a degree of coercion sufficient to prevent the vessel entering into territorial waters, so long as this is done in a manner consistent with provisions of domestic law.84 Guilfoyle argues that Article 33 is not limited to punishing acts committed in territorial waters, but allows the prosecution of vessels for acts committed in the contiguous zone that produce a breach of laws applicable in the territorial sea.85 This is wholly consistent with the idea of objective territorial jurisdiction, which permits States to apply their law to acts initiated outside their territory but completed within their territory.86 However, it seems that the possibility of enforcement action is somewhat moot given that few coastal States will take this course of action when it is likely to commit them to assuming responsibility for the asylum claims of those aboard any such vessel arrested. Seeking to reinforce the effectiveness of the Refugee Convention, Pallis takes the view that any interdiction and re-direction of vessels may amount to a breach of an obligation to determine the status of any refugees.87 He argues that the ‘control necessary’ referred to in Article 33 should be construed so as to provide asylum seekers with a hearing to determine their status. This point was discussed above, and although such a position might be accepted within ports and internal waters, a more expansive reading of an obligation of RSD is rejected.88 However, even if one does accept the existence of such an obligation, it seems clear that it cannot be effectively carried out at sea. In practice this would require bringing the vessel and people on board into port, and as indicated above there is no obligation for the coastal State to do this under either the law of the sea or refugee law. Exclusive Economic Zone (EEZ) States may claim an EEZ, a zone of waters that extends out to 200 nautical miles from the baseline for the measurement of the territorial sea. The first 12 miles of 83

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See I. A. Shearer, “Problems of jurisdiction and law enforcement against delinquent vessels,” International and Comparative Law Quarterly 35 (1986): 320, at 330. See Douglas H. N. Johnson, “Refugees, Departees and Illegal Migrants,” Sydney Law Review 9 (1980): 11, at 32. Douglas Guilfoyle, “Maritime Interdiction of Weapons of Mass Destruction,” Journal of Conflict and Security Law 12 (2007): 1, at 7. See the Lotus case 1927 PCIJ, Series A, No. 10, p. 4, 19. See Pallis, above note 45, p. 354. See section 4(a) above.

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this zone overlap with the territorial sea, and the next 12 miles with the contiguous zone, and so are governed by the respective provisions of the UNCLOS. Within the EEZ the coastal State merely enjoys sovereign rights for the purpose of exploring and exploiting the natural resources, and prescriptive and enforcement jurisdiction over marine scientific research, offshore installations and environmental protection.89 It does not enjoy plenary jurisdiction, and there is absolutely no reference to any authority to regulate irregular maritime migration. Indeed, Article 58 explicitly reserves to other States the residual rights and freedoms associated with the high seas. This means that matters relating to migration by sea are dealt with by those navigation rules applicable under the regime of the freedom of the high seas.90 In the context of migration, there is one area which should be commented upon as a possible exception to the application of high seas rules to the EEZ. This pertains to offshore installations located in the EEZ, which might be targeted by sea-bound migrants.91 Offshore installations in general are regulated by the civil and criminal law of the coastal State within whose EEZ or continental shelf the installation is located. Indeed, Article 60(2) provides that the “coastal State shall have exclusive jurisdiction over such structures … with regard to customs, fiscal, health and safety and immigration laws and regulations”. As indicated above there is little basis for the view that rights of asylum accrue in areas outside ordinary territorial frontiers. However, there are additional practical reasons for limiting the scope for allowing asylum claims to accrue at off-shore facilities. Firstly, to permit such claims would potentially result in them being actively targeted by migrants. Most such installations are privately run and they lack the facilities to accommodate any unauthorised persons, never mind potential asylum seekers. Even less so do they possess the capacity to process claims on behalf of official State bodies. Secondly, offshore installations are particularly hazardous environments. The potential for accidents to occur, with serious consequences for both the workers on such installations and persons seeking to enter such facilities is reason enough for a clear rule excising such facilities, wherever they are located, from the scope of any rules on asylum. High seas States have increasingly taken advantage of the ambiguity in the law concerning the interdiction of vessels on the high seas to take extraterritorial action to stem

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Article 56, UNCLOS. See the following section. In practice, most such States prohibit the entry of unauthorised vessels within 500 metres of offshore installations for reason of safety. See Article 60(5) of the UNCLOS.


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the flows of migration by sea. The high seas is an area of ocean space beyond the exclusive control of any State.92 Here the general rule is that flag States enjoy exclusive authority to regulate vessels flying their flag.93 This extends to both legislative and enforcement jurisdiction. This indicates a primary responsibility of the flag state to ensure that vessels do not engage in illegal trafficking and smuggling of people or the facilitation of breaches of coastal State immigration laws. Of course the practical control of such activities presents many difficulties given the frequent lack of knowledge, capacity and enforcement capacity of many flag States, even for strong maritime powers, across vast ocean spaces. In order to meet public order needs, there are some important exceptions to exclusive flag State jurisdiction in respect of stateless vessels and vessels engaged in piracy, slavetrading, unauthorised broadcasting and illicit trade in narcotics.94 In such exceptional cases, or where an act of interference is derived from a specific treaty provision,95 then, and only then, may foreign flagged vessels be visited and boarded.96 It is notable that efforts to regulate the smuggling of migrants adhere carefully to the primacy of flag State jurisdiction.97 Although Article 7 of the 2000 Protocol on Smuggling establishes a general, cooperative duty, this is, in general facilitative, and does not displace the more detailed rules pertaining to coastal and flag State jurisdiction. Thus Article 8(2) provides that where a State party has a reasonable suspicion that the vessel of another State party that is exercising freedom of navigation is engaged in the smuggling of migrants, it may notify the flag State, request confirmation of registry and obtain authorisation to take appropriate measures, including boarding, search of the vessel and its seizure. Such measures may be subject to conditions.98 The interdicting vessel

92 93 94 95

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Article 86, UNCLOS. Article 92, UNCLOS. Articles 99–109, UNCLOS. Important example of this have recently arisen under the Proliferation Security Initiative, under which the US has entered into bilateral agreements with a number of States, including Liberia, the Marshall Island, Panama, to allow the boarding of vessels to investigate for shipments of weapons of mass destruction or components thereof. Article 110, UNCLOS. The right to visit and board does not extend to vessels suspected of being engaged in the illicit traffic of narcotics. States are merely required to cooperate in the suppression of such activities. Here consent of the flag State is required to approach and board the ship. A number of bilateral and multilateral treaties provide for cooperative activities, but still retain the requirement of consent to boarding. See for e.g., Article 17 of the Vienna Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, 1992 UKTS 26. See the instruments listed in note 14. Above note 14, Article 8(5), Smuggling Protocol.

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must notify the flag State of all measures taken.99 Crucially, a “State Party shall take no additional measures without the express authorization of the flag State, except those necessary to relieve imminent danger to the lives of persons or those which derive from relevant bilateral or multilateral agreements.”100 Certain safeguards are required by the interdicting ship to ensure the safety and humane treatment of those aboard, to protect the vessel and its cargo, to respect the commercial and legal interests of the vessel,101 and to preserve the application of other relevant rules of international law.102 For the purpose of controlling maritime migration, the position of stateless vessels is particularly important given the distinct possibility that vessels engaged in irregular migration activities will lack a flag.103 Under international law, the general rule is that a vessel flying no flag or flying more than one flag is deemed to be stateless.104 Also, where the nationality of the vessel is uncertain, warships enjoy the right to verify the flag.105 However, the UNCLOS does not detail how this status is to be determined at an operational level. Here we can usefully reflect upon United States domestic practice, which is better developed than in many jurisdictions and appears to be in line with the provisions of the UNCLOS. In US v. Maynard, it was held that the test of statelessness can be satisfied in two ways: first where a vessel makes a claim of nationality which is denied by the flag nation, and, secondly, where the master of the vessel fails, upon request, to make a claim of nationality.106 A claim of nationality will usually be satisfied through the display of a flag, the possession of documents on board the vessel, or through verbal confirmation by the ship’s master. The denial of registry must be made by the flag nation whose nationality is claimed.107 US jurisprudence makes a distinction between the investigation of potentially stateless vessels and the prosecution of such vessels for any breach of domestic US penal law. For the purpose of justifying the initial boarding, coast guards or other public authorities only require a ‘reasonable belief ’ that the vessel is stateless.108 This might be established by the absence of a flag or a clearly identifiable flag, the absence of identify markings on the vessel, or a refusal to respond to radio contact seeking clarification of flag 99 100 101 102 103 104 105 106 107 108

Article 8(3), Smuggling Protocol. Article 8(5), Smuggling Protocol. Article 9, Smuggling Protocol. Article 19, Smuggling Protocol. See Pallis, above note 45, at 350–353; Goodwin-Gill and McAdam above note 66, p. 272. Article 92(2), UNCLOS. Article 110(2), UNCLOS. 888 F.2d 918, 923 (1989). This is well established in US domestic jurisprudence. Ibid., 925. US v. Wright-Baker, 784 F.2d 161, 176 (3rd Cir. 1986); US v. Passos-Paternina 918 F.2d 979 1st Cir. 1990).


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status. Subsequent authority to prosecute the vessel under domestic law requires that the statelessness of the vessel be established beyond reasonable doubt.109 Other than to permit warships to verify the flag of a ship, the UNCLOS does not detail how States are to treat stateless vessels. Article 110 is silent on the consequence of statelessness. Certainly, warships may take further action where the flag is found to be the same as the warships, or the vessel is engaged in one of the above criminal activities. However, contrary to the views of some commentators, the rule is not a permissive one that allows all States to exercise jurisdiction over such vessels.110 Rather, the position is that no State may, as the flag State, complain of any violation of international law by another State against the stateless vessel.111 However, as Churchill and Lowe point out, this discounts the possibility of diplomatic protection being exercised over the persons onboard the vessel, which leads them to suggest that only States with a jurisdictional nexus should be able to extend and enforce its laws against the stateless vessel.112 Diplomatic protection may only be exercised when one State has committed a wrong against the nationals of another State or their property. In the context of irregular migration, such a wrong might include some breach of substantive human rights.113 Yet it is important to note that the exercise of diplomatic protection, unlike direct wrongs to States, is subject to certain procedural requirements, including exhaustion of local remedies and nationality of claims.114 This would require the State exercising 109 110

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US v. Cuevas-Esquivel, 905 F.2d 510. McDougall and Burke, above note 12, pp. 1062–1063. The argument is based on the idea that public order over the oceans requires that all vessels are registered and subject to legal control by a flag State. The absence of flag State control and the preclusion of the right of other States to take action against the vessel would effectively place stateless vessels beyond the law. Of course, if one accepts this approach then it must be implicit that such residual authority is limited to what would be necessary to ensure public order in ocean spaces. It does not allow States to exercise unlimited control over the stateless vessel. See Molvan v. A.G. for Palestine [1948] AC 351, as per L. Simonds at 370. The ratio of this case is clearly limited to seizure of the vessel, and no consideration is given to the possibility of diplomatic protection on behalf of the crew. Above note 64, p. 214. For example, the US has asserted that drug trafficking aboard vessels threatens the security of the US and it has, accordingly asserted jurisdiction over stateless vessels engaged in drug trafficking. See US v. Martinez-Hidalgo 993 F. 2d 1052, where the 3rd circuit affirmed the application of the Maritime Drug Law Enforcement Act 1986 (46 USCA 1903) to stateless vessels. This might include arbitrary arrest or detention, or cruel, inhuman or degrading treatment, or failure to receive due protection of law. Indeed, one might characterise a failure to render assistance when under a legal duty to do so might amount to an omission that results in certain human rights being abrogated. However, the wrong would not pertain to an interference with the freedom of the high seas. Such a right attaches to States, not individuals, and in any event would not be applicable in actions against stateless vessels. See Elettronica Sicula SpA (ELSI), Judgment, (1989) ICJ Rep. 15, para. 52.

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diplomatic protection to seek redress, in the first instance, through the courts of the arresting State, and to satisfy the requirements of the nationality rule. Whilst diplomatic protection provides a useful check on the exercise of nonflag State jurisdiction over any vessel, it must be questioned whether it is really suitable in the context of stateless vessels and irregular migration.115 First, the exercise of diplomatic protection is discretionary.116 In many instances of maritime migration the State of origin may be unwilling to exercise jurisdiction over its nationals. Second, even in the event that the State of origin is willing to exercise diplomatic protection, the remedy sought by the protecting State might include repatriation of its nationals. In the case of genuine asylum seekers, and indeed any irregular migrant, this is highly undesirable. As such, the absence of any State or agency capable of exercising effective and independent protection seems to render diplomatic protection of limited use in protecting irregular maritime migrants. Apart from diplomatic protection, any other jurisdictional nexus should be one that is provided for under international law, such as jurisdiction according to the objective territorial principle. Interestingly, this requirement for a nexus has been strongly rejected under US law.117 Here domestic law establishes a positive basis for action against vessels and by criminalising certain activities thereby facilitates domestic prosecution. However, it should be noted that much US jurisprudence is concerned with the suppression of drug trafficking, and it is not at all clear that attempts to circumvent the requirement for a jurisdictional nexus, for example in the case of irregular migration, would be consistent with the law of the sea.118 Despite some academic support for the treatment of stateless vessels as subject to any jurisdiction as ‘international pariahs’, there is in fact little non-US jurisprudence or general State practice on the matter.119 Indeed, the fact that right

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It is notable that the ILC has been keen to advance the scope for flag State to exercise ‘quasi’diplomatic protection over persons aboard vessels flying their flag. See Article 19 of the Draft Articles on Diplomatic Protection. See Report of the International Law Commission. Fifty-sixth session (3 May–4 June and 5 July–6 August 2004). UN Doc. A/59/10. Of course this is little utility in the case of stateless vessels. See Phoebe Okowa, “Admissibility and the Law on International Responsibility” in International Law, ed. M. Evans (Oxford: Oxford University Press, 2006), 479 at p. 483. See US v. Marino-Garcia, 679 F.2d 1373,1382 (11th Cir, 1982); US v. Pinto-Mejia, 720 F.2d 248, 260–261 (2nd Cir. 1984); US v. Juda, 1995 AMC 1096; US v. Caicedo, 47 F.3d 370 (9th Cir, 1995); US v. Shi, 525 F.3d 709, 722 (9th Cir. 2008). The interdiction of a stateless vessel engaged in people smuggling arose in US v. Yung, 97 F. Supp 2d 24, 26–28 (2000). Arguably action to suppress drug trafficking is a special case, given Article 108 of the UNCLOS. This, and the number of special treaties dealing with this activity, seem to infer a greater willingness to permit states to exercise jurisdiction in this respect. See Marjorie Whiteman, Digest of International Law (1968), vol. 9, p. 21; Herman Meyers, The Nationality of Ships (The Hague: Nijhoff, 1967), 318–320; McDougal and Burke, above


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of visit and matters of enforcement are treated separately in the UNCLOS suggests that a positive right of visit does not imply wider enforcement powers. As indicated above, the situation is different where States have granted permission to other States to interdict their vessels on the high seas. Thus the US and Haiti entered into an agreement permitting the United States to interdict Haitian flagged vessels and repatriate persons fleeing Haiti.120 Under the Agreement, the US was permitted to board vessels and inquire as to the status of the passengers. If, after a preliminary inquiry, it determined that US immigration laws had been violated, the US was allowed to detain the vessel and, subsequently, either release the vessel into the control of Haitian representatives, or, upon prior notification to the Haitian Government, return it and its passengers to Haiti. By way of clarification, the Agreement stated that the US “does not intend to return to Haiti any Haitian migrants whom the United States authorities determine to qualify for refugee status”.121 The right of the US to interdict vessels on the high seas under this agreement was confirmed in the much criticised decision of the US Supreme Court in Sale v. Haitian Centers Council.122 The Court held that neither domestic law nor international law limited the Executive’s power to order the Coast Guard to repatriate illegal migrants intercepted on the high seas.123 In effect, the Court construed the Refugee Convention as possessing mere territorial scope.124 However, regardless of this finding, the Court cited no legal authority for finding the proposition that States may enter into agreements that restrict the movement of persons on the high seas in violation of the freedom of the high seas. There may be doubt as to whether or not coastal States must entertain claims of asylum made extraterritorially.

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note 12, 1084–5; O’Connell, above note 54, p. 755; Rosemary Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (Leiden: Martinus Nijhoff, 2004), 57. Malta has suggested that any State may exert jurisdiction against a stateless vessel, but questioned whether this must be provided for in domestic law. It further noted that this must be subject to the principle of proportionality. See House of Lords European Union Committee, Frontex: the EU external borders agency. Report with evidence (2008), p. 89. Australia has recently reformed the Customs Act 1901 to permit the boarding of stateless vessels under the Customs Amendment (Enhanced Border Controls and Other Measures) Act 2009. Agreement relating to Establishment of a Cooperative Program of Interdiction and Selective Return of Certain Haitian Migrants and Vessels Involved in Illegal Transport of Persons Coming from Haiti 1981, 33 UST 3559. This was terminated in 1994. Also US-Haiti Exchange of notes constituting an agreement concerning interdiction of and return of Haitian migrants. Port au Prince, 23 September 1981. 1537 UNTS 176. Ibid., 3560. Harold Koh, “America’s Offshore Refugees Camps,” University of Richmond Law Review 29 (1994): 139. 113 US 2549; 509 US 155 (1993). Ibid., 2563–2566.

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However, there is little doubt that States are bound by the Article 33 obligations of non-refoulement, and there is evidence to suggest that this obligation is not territorially circumscribed.125

5. International law of the sea and the rescue of persons in distress Before considering the nature and extent of rescue obligations, it is important to briefly emphasise the discreet origin and nature of rules on maritime rescue and maritime interdiction.126 In practice, rescue operations may coincide with, or transform into migration control operations.127 Recalling the difference between rescue and interdiction is important because they operate in different ways, and arguably, the existence of a duty to render assistance may constrain States authority to deal with rescued migrants. Indeed, it seems clear that the right of States to regulate maritime migration cannot obviate fundamental duties to provide assistance to persons in distress at sea. This is a long-established rule of custom.128 It obliges both other vessels and coastal States in the vicinity, and all persons, including irregular maritime migrants, remain protected by virtue of the duty. Rescue obligations are sustained by purely humanitarian considerations.129 This was reaffirmed by Lord Stowell in the case of The Eleanor, who held that any real and irresistible distress, as proved by satisfactory evidence “must be at all times a sufficient passport for human beings”.130 As Cockburn, CJ stated in Scaramanga v Stamp, for 125

126 127

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Brief of the Office of the United Nations High Commissioner for Refugees as Amicus Curiae in Support of Respondents in McNary v. Haitian Centers Council, 509 US 155 (1993) (No 92–344). See also Article 3(1) of the General Assembly’s Declaration on Territorial Asylum. GA Res 2312 (XXII), UN GAOR, 22nd Sess, Supp No 16, at 81, UN Doc A/6716 (1967). See also Miltner, above note 1, 82. Here, maritime interdiction refers to the interception of a vessel, which may in turn result in boarding, inspection, and other actions consistent with international law. Migration control activity refers to a wider range of activities including monitoring of vessels, information sharing and cooperation with other States. For an excellent review of the legal authorities see, Aldo Chircop, “The Customary Law of Refuge for Ships in Distress” in Places of Refuge for Ships, ed. Aldo Chircop and Olof Linden (Leiden: Martinus Nijhoff, 2006), 163–229. This has been readily seized upon by the UNHCR in the context of circumscribing States authority to deal with asylum seekers rescued at sea. See UNHCR ExCom, Problems Related to the Rescue of Asylum-Seekers in Distress at Sea, Conclusion No. 23 (XXXII) (1981), para. 1; UNHCR ExCom, Report of the Working Group on Problems related to the Rescue of AsylumSeekers in Distress at Sea, Conclusion 26 (XXXIII)(1982); UNHCR ExCom, Rescue of AsylumSeekers in Distress at Sea, Conclusion No. 38 (XXXVI) (1985), para. (a). (1809) Edw. 135, 159–160. See also the French Court of Cassation in The Carlo-Alberto [1832] Sirey, part i, 577. In the US, see Schooner Exchange v. McFaddon 11 US 116, 7 Cranch 116 (1812), at 141; The Brig Concord 13 US 387, 9 Cranch 387 (1815). Such concerns were


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“all who have to trust themselves to the sea it is of utmost importance that the promptings of humanity in this respect should not be checked or interfered with by prudential considerations as to injurious consequences which may result to a ship or cargo from the rendering of the needed aid.”131 Of course, these cases merely indicate the importance of humanitarian concerns; they do not delimit the scope and detail of any duty to render assistance. Fleshing out the meaning and content of rescue obligations is a relatively recent development.132 Before considering how specific instruments have articulated more precisely the extent of rescue obligations, it should be stressed that the general duty is not absolute; it is subject to important qualifications. First, once safety of life has been addressed, coastal States may have regard to their own interests in deciding how best to deal with a request for assistance from a vessel in distress.133 Secondly, it is doubtful that the right to assistance extends as far as the right to enter a particular port or sheltered waters. The general rule was formulated in a different era, one when sailing vessels were at the mercy of the elements and putting into port was vital step in preserving the vessel or saving the lives of those aboard. Indeed, it is notable that much early authority was concerned not so much with a right of entry, but with protecting mariners from any adverse penalties arising from breaches of domestic law committed by the act of seeking shelter in port because of factors beyond their control.134 Thus when the vessel enters port under conditions of necessity or force majeure she is not subject to local regulations and cannot be subject to any incapacity, prohibition, penalty or tax at that port. Clearly, where a number of options are available to the persons in distress, then it does not follow that they may demand entry into a particular port, and they may be required to take other action.135 Thirdly, whilst the rule clearly applies to cases of physical distress, it does not necessarily apply to the case of vessels that are seeking entry into ports purely in order to disembark persons rescued at sea.136

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reiterated more recently in the Irish High Court by Barr J, ACT Shipping (Pte) Ltd v. Minister for the Marine and others (The MV Toledo)[1995] 2 ILRM 30, at 48–49. [1880] 5 CPD 295, 304. This might be regarded as an obiter remark given that the case concerned whether or not a deviation to save property was justifiable under a contract of affreightment. Chircop, above note 128, 215. See The MV Toledo above note 130, 48. It is notable that many cases were actually formulated not as a right of rescue but as immunity from prosecution when seeking shelter in coastal waters resulted in a breach of coastal State law. The two leading international authorities are The Creole (1853) Moore, International Arbitration 824 and The Kate E. Hoff case (The Rebecca) (1929) VI RIAA 444. It is notable that the International Law Commission define distress by reference to the lack of choice in options. Yearbook of the International Law Commission (1973), vol. II, p. 133, para. 2. This was discussed above in section 4.

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Whilst some degree of evolution of the rule may be desirable, this issue of irregular maritime migration was not at issue when the original rule was being formulated, and care must be taken not to extend the rule beyond its intended remit. The obligation to provide assistance is customary and the acid test of any development in the scope of such a rule must be rooted in a clear acceptance by States, as shown by their practice. As in the case of the Tampa, it seems to be clear that States have been careful to maintain their discretion to deny access to vessels carrying irregular maritime migrants rescued at sea.137 Fourthly, the burden of proving that a situation of distress exists falls upon the master of the afflicted vessel. This is consistent with the jurisprudence on vessels in distress. Although this burden was developed to deal with fraudulent claims to entry and attempts to circumvent customs requirements,138 given that refuge and shelter are exceptional demands and may place considerable burdens on other parties, it seems reasonable to expect that that the master of a vessel must establish at least a prima facie situation of distress exists. The Law of the Sea Convention As indicated above, the UNCLOS is primarily focused upon allocation of competence, resource regulation, environmental protection, and shipping standards. That said a number of key provisions deal with rescue at sea. Article 98(1) of the UNCLOS provides that: Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew, or the passengers … to render assistance to any person found at sea in danger of being lost … and to proceed to the rescue of persons in distress, if informed of their need for assistance, in so far as such action may be reasonably be expected of him.139

The obligation is without qualification, except to the extent that it would be unreasonable to render assistance. Accordingly, if the vessel is too far away, the vessel is ill-equipped to render assistance or other vessels are more readily available to render assistance, then the master may not be required to render assistance. Where a rescue operation is controlled by a rescue coordination centre (RCC), then such an evaluation should be carried out by the RCC because it is

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The Tampa incident of August 2001 focused on Australia’s refusal to permit the disembarkation of persons rescued at sea by a Norwegian vessel. See further Cecilia Bailliet, “The Tampa case and its Impact on Burden Sharing at Sea,” Human Rights Quarterly 25 (2003): 741; Also Barnes, above note 2. See for example, the comments by Livingstone, J. in The Aeolus, 16 US 392 (1818). This reflects Article 12 of the 1958 Geneva Convention on the High Seas, 450 UNTS 11.


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in better possession of all the relevant facts. When the rescue is prompted by a localised distress call directly from the vessel, then the master would have to make such an evaluation. This obligation is one that will usually be fulfilled by individuals meaning that it must be transposed into domestic law before it can become effective.140 Article 98(2) establishes a general obligation on coastal States to maintain search and rescue services: Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.

Strictly speaking, this only applies to the high seas. However, Article 58(2) renders Articles 88 to 115 of the UNCLOS applicable to the EEZ in so far as they are not incompatible with the other rules on the EEZ, and there seems to be no reason why rescue responsibilities should conflict with the provisions on natural resources. Although the coastal State has the authority to regulate the territorial sea in respect of safety of navigation and the regulation of maritime traffic under Article 21(1)(a), there is no provision equivalent to Article 98(2) requiring the promotion of rescue services. However, to suggest that there is no duty to provide search and rescue service in the territorial sea exists would be out of line with the practice of most States. As a framework convention, the broad principles of the UNCLOS must be fleshed out by more detailed agreements. However, in contrast to matters such as shipping standards and environmental protection, there are no rules of reference dealing with search and rescue.141 This perhaps indicates that those negotiating the convention considered matters of search and rescue to be either adequately dealt with through the articulation of such general obligations, or that search and rescue was adequately dealt with in existing treaty rules and custom. Certainly in the context of how rescue obligations and migration control activities coincide, such assumptions seem poorly founded. Although the absence of specific exhortations to develop rescue obligations that take into account migration issues is to be regretted, there is nothing in the UNCLOS that precludes such steps. As noted above, the UNCLOS is not susceptible to revision and so the inclusion of other provisions dealing with rescue and migration control at sea must be dealt with through other instruments such as the SOLAS and the SARCon.

140 141

See for example, sub-sections 93(1) and (2) of the Merchant Shipping Act 1995. See the provisions listed in fn 19.

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The Safety of Life at Sea Convention 1974 (SOLAS) The SOLAS is the most important international convention concerning the safety of merchant shipping. It covers a wide range of matters ranging from construction standards to operational rules to security measures. It also specifically deals with safety of navigation and rescue obligations. Chapter V, Regulation 10(a) of the SOLAS provides that: The master of a ship at sea which is in a position to be able to provide assistance, on receiving a signal from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service, that the ship is doing so. If the ship receiving the distress alert is unable or, in the special circumstances of the case, considers it unreasonable or unnecessary to proceed to their assistance, the master must enter in the log-book the reason for failing to proceed to the assistance of the persons in distress and, taking into account the recommendations of the Organization, inform the appropriate search and rescue services accordingly

This provision echoes Article 98(1) of the UNCLOS, with an additional requirement requiring the master to record any reason for failing to render assistance. This may provide a check on decision-making. Regulation 15(a) deals with coastal State obligations: Each contracting Government undertakes to ensure that any necessary arrangements are made for coast watching and for the rescue of persons in distress at sea round its coasts. These arrangements should include the establishment, operation and maintenance of such maritime safety facilities as are deemed practicable and necessary having regard to the density of the seagoing traffic and the navigational dangers and should, so far as possible, afford adequate means of locating and rescuing such persons.142

As the SOLAS is subject to the IMO’s tacit amendment procedure this makes it a more suitable vehicle for delivering regulatory changes in respect of vessels in distress. The streamlined amendment procedure allows for a more expeditious development of treaties, rather than requiring recourse to the negotiation, adoption and ratification of new protocols of amendment, which can be a long and arduous process. Under the tacit amendment procedure, changes to instruments are agreed through the various committees of the IMO and then put forward as formal amendments. These amendments enter into force automatically after a specified period of time, unless a certain number of States object to the changes. A number of important amendments to the SOLAS have been adopted using this procedure, including most recently, provisions dealing with the treatment of rescued persons. 142

This is now Regulation V-7(3) under the SOLAS 2000.


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On 20 May 2004, the IMO Maritime and Safety Committee adopted a series of amendments to Chapter V of the SOLAS.143 These amendments seek to tighten up the existing obligations in respect of rescue operations. For example, Regulation 33, dealing with obligations and procedures for vessels in distress contains a new paragraph 1.1, which provides that: Contracting Governments shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ship’s intended voyage, provided that releasing the master of the ship from the obligations under the current regulation does not further endanger the safety of life at sea. The Contracting Government responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and co-operation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the Organization. In these cases the relevant Contracting Governments shall arrange for such disembarkation to be effected as soon as reasonably practicable.

This is an important step forward in meeting both the interests of the shipping community and rescued persons. In particular, clarification of the fact that the coordinating State is under the primary responsibility to ensure the disembarkation of rescued persons is to be welcomed. The obligation is one of result, whereby disembarkation is to occur, but the means to achieving this are left to the relevant States, with the RCC State in effect managing any negotiations concerning disembarkation. The provision is not so tightly drawn as to require the immediate disembarkation of rescued persons at the next port of call or the closest coastal State. Indeed, the provisions are drawn to permit some degree of flexibility in responses that take into account the particular circumstances of each incident. Although a laudable development, there may be two drawbacks to this approach. First, unless the State responsible for the search and rescue operation is willing to permit disembarkation at its ports, then completion of the rescue operation remains contingent upon the goodwill of other States. Second, it is possible that such a flexible approach, which may involve a high degree of cooperation and coordination between several States, could simply complicate and delay the completion of rescue operations, rather than facilitate the expeditious disembarkation of rescued persons. By adopting a flexible approach, rather than establishing clear cut obligations, the door is left open for politicised decision-making. A further addition now requires that masters of ships which have embarked persons in distress at sea “shall treat them with humanity, within the capabilities 143

Resolution MSC 153(78).

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and limitations of the ship”.144 Also, a new Regulation V-34(1) prohibits the owner or operator, or any other person, from preventing or restricting “the master of the ship from taking or executing any decision which, in the master’s professional judgement, is necessary for safety of life at sea and protection of the marine environment”. Whilst this may be difficult to police in practice, it reinforces the capacity of the master to act in the best interests of the persons in distress, rather than the commercial interests of the owners or operators. The changes to SOLAS are very much a response to recent controversies concerning the proper treatment of vessels in distress. They demonstrate how, once political will is sufficiently mobilised, that suitable legal mechanisms for change exist and can be utilised. The International Convention on Search and Rescue In May 2004, the SARCon benefited from amendments that improve the coordination of search and rescue operations, and the treatment of rescued persons.145 The core obligation to render assistance in Paragraph 2.1.1 remains the same: Parties shall, as they are able to do so individually or in co-operation with other States and as appropriate, with the Organization, participate in the development of search and rescue services to ensure that assistance is rendered to any person in distress at sea. On receiving information that any person is, or appears to be, in distress at sea, the responsible authorities of a Party shall take urgent steps to ensure that the necessary assistance is provided.

However, this basic provision has now been extended to include persons who have found refuge on remote coastal locations.146 This is an important addition and it indicates a move away from a purely territorial view of responsibility, towards one based upon collective responsibility and capacity to engage in rescue operations. In order to improve the communication and coordination of search and rescue operations, Regulation 2.1.4 requires Parties, either individually or collectively, to establish rescue coordination centres responsible for search and rescue regions.147 Such SAR zones do not necessarily correspond to States maritime zones. They frequently cover areas of the high seas and may result in States assuming the responsibility for rescue operations in waters at a considerable

144 145 146 147

Regulation 34(6). Resolution MSC 155(78), adopted 20 May 2004. Ibid. Following the adoption of the SARCon, the IMO Maritime Safety Committee divided the world’s oceans into 13 maritime search and rescue regions, within which States were to adopt search and rescue responsibilities. More specific search and rescue zones have been agreed by States.


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distance from their own ports. This may result in practical problems when it comes to disembarking rescued persons. States are obliged to notify the Secretary General of the IMO of such agreements or arrangements, who will in due course transmit such information to other Parties. This means that clear lines of responsibility for particular rescue operations now exist.148 It should be noted that search and rescue assistance shall be extended to any person in distress at sea, regardless of the nationality or status of such a person or the circumstances in which that person is found.149 This means that at the rescue stage, any issues associated with irregular maritime migration must not be taken into account. States are under specific obligations as regards the conduct of any search and rescue operation. Parties are now required to authorize RCCs to “make the necessary arrangements in co-operation with other RCCs to identify the most appropriate place(s) for disembarking persons found in distress at sea.”150 Furthermore a new Paragraph 3.1.9 provides that: Parties shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships intended voyage, provided that releasing the master of the ship from these obligations does not further endanger the safety of life at sea. The Party responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and co-operation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the Organization. In these cases, the relevant Parties shall arrange for such disembarkation to be effected as soon as reasonably practicable.151

This new provision echoes the amendment to the SOLAS noted above and is welcome for the same reasons. However, similar problems may arise with its operation in practice. First, the rescue coordinating centre is responsible for determining when a rescue comes to an end.152 This affords States with a high degree of latitude as to the extent of their rescue obligations, for example by indicating that the attendance of a rescue vessel and embarkation of persons in distress thereon amounts to the end of the emergency.153 In the case of asylum seekers who are likely to be refused admission to the coastal State, this remains problematic. 148

149 150 151 152 153

For a list of States’ Search and Rescue Services, see IMO Doc. SAR/Circ.1/Corr.5 23 April 2007. Ibid., para. 2.1.10. Amendment by virtue of Resolution MSC 155(78). Ibid. Para. 4.8.3. Norway was critical of Australia’s determination to end its rescue responsibilities at such a point in the Tampa incident. See IMO Circular letter No 2363 (February 11, 2002).

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Secondly, although search and rescue obligations may be coordinated by a single State, this does not establish a duty on the coordinating State to disembark rescued person in its ports. This remains to be agreed between the relevant Parties. In practice this can lead to problems when the relevant States cannot agree as to the appropriate place to disembark persons rescued. A case in point concerns the MV Pinar E incident of 16–20 April 2009. Malta as the RCC was responsible for coordinating the rescue of 154 persons from two small boats by the MV Pinar E, a Turkish owned and Panamanian registered vessel. The rescue occurred approximately 41nm from Lampedusa (Italy) and 114nm from Malta. Italian authorities initially requested the vessel proceed to Malta, first because the rescue occurred in Malta’s SAR zone, and second because Lampedusa was not a safe place to disembark the rescued persons. Malta insisted that Italy should receive the vessel as the nearest port State. The Italians subsequently denied the MV Pinar E permission to enter the Italian territorial sea after the Pinar’s master indicated his intention to proceed to the nearest port – Lampedusa. The standoff between Italy and Malta was only resolved when the President of European Commission intervened and Italy permitted the Pinar to proceed to Porto Empedocle in Sicily. IMO Guidelines on the Treatment of Persons Rescued at Sea In response to the Tampa incident,154 the IMO adopted Resolution 920(22) on 29 November 2001, requiring its various committees to review the existing legal framework for any gaps, weaknesses or ambiguities. More specifically, it was aimed at ensuring assistance to persons in distress regardless or nationality or circumstance, ensuring that ships can deliver such persons to a place of safety, and ensuring the treatment of rescued persons (explicitly undocumented migrants and asylum seekers, refugees and stowaways) in accordance with relevant instruments and long-standing maritime traditions. The result of this review process was the adoption by the MSC of Guidelines on the Treatment of Persons Rescued at Sea.155 The preamble to the resolution hosting the guidelines explicitly acknowledges the intention of amendments to the SOLAS and the SARCon to ensure that a place of safety is provided in a reasonable time, and that primary responsibility for providing such a place falls upon the party responsible for the search and rescue region where the survivors were recovered. Whilst these guidelines are not themselves constitutive of any binding obligations, they provide an important means for interpreting the obligations set forth in the UNCLOS, the SOLAS and the SARCon. It is also arguable that they may contribute to the formation of new customary rules on the treatment of persons rescued at sea. A number of provisions of the Guidelines are crucial in this respect. 154 155

See fn 137. Resolution MSC. 167(78). Adopted 20 May 2004.


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The Guidelines set down the general responsibilities of the master of a vessel. Noting the legal responsibilities of the master, the Guidelines stress the importance of the master’s knowing and understanding the extent of any obligations to render assistance to persons in distress.156 Furthermore, they indicate the need to comply with the directions of the relevant RCC and with their duties under SARCon, as set out in the IAMSAR Manual.157 At all times they must keep the RCC informed of local conditions and actions taken.158 Rather than point to new obligations, the Guidelines focus on implementation of existing responsibilities and coordination of responses. A number of important requirements are highlighted for Governments and RCCs. Firstly, Governments are to ensure that RCCs have adequate guidance and support to carry out their duties as set out under international agreements (SOLAS and SARCon).159 They should further ensure that RCCs comply with the relevant standards and procedures set out in the IAMSAR Manual.160 They should further ensure that ships assisting persons in distress are not subject to any undue delays or financial burdens.161 Perhaps the most important exhortation is that RCCs should adopt contingency plans for all types of rescue situation.162 This is crucial because it may help prevent ad hoc responses to vessels such as Australia’s to the Tampa. States should minimise the time survivors remain aboard the rescuing ship and take every step to expedite their disembarkation. It should be noted that this does not necessarily entail disembarkation at the nearest coastal State or ‘search and rescue’ State. The State responsible for the rescue operation is still entitled to make arrangements with other States to receive the survivors. Such resettlement arrangements provide States with the opportunity to share the burden of migration with other States. As indicated above, a point of considerable importance is what constitutes a place of safety, because this is where search and rescue obligations come to an end. The SARCon does not define this. According to Paragraph 6.12 this is considered to be a “place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met”. This need not be the survivors’ intended final destination. However, Paragraph 6.13 continues to provide that “[a]n assisting ship should not be considered a place of safety based solely on the fact that the survivors are no longer in immediate danger once aboard the ship.” Clearly this depends upon the 156 157 158 159 160 161 162

Para. 5.1.1. Para. 5.1.7 and para. 5.1.3 respectively. Para. 5.1.5. Para. 6.1. Para. 6.2. Para. 6.3. Paras. 6.5 and 6.6.

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circumstances of each rescue operation. A small number of survivors might readily be in safe keeping on a large, well-equipped vessel. However, it clearly indicates that cargo vessels, such as the Tampa, cannot be considered as a place of safety, and that in such circumstances the responsible State’s rescue obligations continue. In any event, ships should be regarded as temporary places of refuge and should be relieved of their responsibilities as soon as possible. Summary remarks on the law of the sea The foregoing review indicates that whilst there are general obligations pertaining to search and rescue, a crucial gap remains between rescue and disembarkation. The duty to render assistance is unquestioned and this is readily given effect to in practice.163 However, once the immediate danger to persons rescued at sea has been alleviated, for example by embarking them upon another vessel, the position is much more uncertain in law. The time honoured tradition of disembarking rescued persons at the next port of call remains an important practice, but one that has not been buttressed by a clear duty on any specific coastal State to allow disembarkation. In some instances, the crew and passengers can be readily repatriated or will be allowed to disembark at the nearest or next port of call. However, because rights of asylum (beyond mere non-refoulement) may crystallise upon disembarkation, some coastal States are reluctant to allow irregular maritime migrants to disembark. This leaves a potentially crucial gap in the system of protection of asylum seekers. As noted this gap has been partially addressed by the imposition of an obligation on States to cooperate and coordinate in concluding rescue operations.164 The UNHCR has long advocated the need to improve the protection afforded to asylum seekers at sea and to enhance cooperative mechanisms. To this end it has articulated a number of principles that ought to apply in the maritime context. First, and above all, the UNHCR has stressed the fundamental importance of the rescue obligation, an obligation that arises without question as to the status of the rescued persons.165 Secondly, ExCom has reiterated the desirability that asylum-seekers rescued at sea should be granted asylum, although it is not clear 163

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Although not required by international law many States make it a criminal offence for masters to fail to render assistance to vessels in distress. See for example, s. 93 of the Merchant Shipping Act 1995 (UK). See sections 5(b)–(d) above. Also, in July 20005, an amendment to Standard 7.8 of the Convention on Facilitation of International Maritime Traffic 1965 was adopted, that requires public authorities to facilitate the arrival and departure of ships engaged in the rescue of persons in distress at sea in order to provide a place of safety for such persons. See Resolution FAL.8(32) adopted 7 July 2005, reproduced in IMO Doc. FAL 32/22. ExCom Conclusion No. 26(XXXIII) – 1982, para. (b).


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which State should grant asylum.166 Thirdly, States should take appropriate action to protect asylum seekers from acts of violence and predation.167 Indeed, this may provide reason for affording them greater rights in the context of maritime rescue incidents. Fourthly, flag States should ensure that the obligation to rescue persons in distress is met and any necessary assistance rendered.168 Fifthly, it has advanced calls for cooperation both generally and specifically through the no longer extant Disembarkation Resettlement Offers (DISERO) and Rescue-at-sea Resettlement Offers (RASRO) schemes.169 These principles, at the level of principle, are uncontroversial. However, it is their operational aspect which is problematic. Given the cooperative paradigm which is being advanced it is important to understand the key parameters of this approach. Firstly, the complexity of rescue/ asylum incidents requires the involvement of all affected parties. This includes: the Government responsible for the SAR area where the persons are rescued, other coastal States on the planned route of the rescuing ship, the flag State, the ship owners and their representatives, States of nationality or residence of the persons rescued (unless this poses a risk to the rescued persons), the State from which the persons rescued departed, if known, and the United Nations High Commissioner for Refugees. Whilst this may complicate decision-making, it reflects the preferred approach of IMO.170 It would also be consistent with the principles of burden sharing. Secondly, the locus of decision-making, even for matters of disembarkation and asylum, is increasingly focused upon search and rescue zones, and therefore the RCC State. If this trend continues, then this may require some reconsideration of how responsibility for search and rescue zones is allocated to

166 167

168 169

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See ExCom Conclusion No. 2(1976), para. (f )–(h). See ExCom No. 20(XXXI) – 1980, paras. (a)–(g); ExCom Conclusion 21(XXXII) – 1981, para. (g); ExCom Conclusion No. 25(XXXIII) – 1982, para. (c); ExCom Conclusion No. 29(XXXIV) – 1983, para. (d); ExCom Conclusion No. 33(XXXV) – 1984, para. (e); ExCom Conclusion No. 36(XXXVI) – 1985, para. (f ); ExCom Conclusion No. 41(XXXVII) – 1986, para. (j); ExCom Conclusion No. 46(XXXVIII) – 1987, para. (f ); ExCom Conclusion No. 47(XXXVIII) – 1987, para. (e). ExCom Conclusion No. 23(XXXII) – 1981, para. 1 Most recently see the Report of the Office of the United Nations High Commissioner for Refugees, The treatment of Persons Rescued at Sea: conclusions and recommendations from the recent meetings and expert round tables convened by the Office of the United nations High Commissioner for Refugees, UN Doc. A/AC.259/17 11 April 2008. In respect of DISERO and RASRO see ExCom Conclusion No. 23(XXXII) -1981, para. 2; ExCom Conclusion No. 31(XXXIV) – 1983, paras. (c) and (d); ExCom Conclusion No. 34(XXXV) – 1984, para. (d) and (e); ExCom Conclusion No. 38(XXXVI) – 1985, para. (d). See para. 2.3 of the Principles Relating to the Administrative Procedure for Disembarking Persons Rescued at Sea. IMO Doc. FAL.3/Circ.194, 22 Jan. 2009.

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ensure an equitable and effective sharing of rescue responsibilities. Thirdly, the resolution of the matter should be as expeditious as possible. Finally, there is the question of how decisions are reached. Unfortunately, this is not always clear. This cooperative decision-making process takes place under the responsibility of the RCC State. It is clear that the obligation to facilitate disembarkation is one of result, and it should be prosecuted in good faith.171 However, it is clear that good faith does not provide a source of autonomous obligation, nor can it be used to enlarge obligations.172 Moreover, it does not preclude the RCC State from seeking to control movements of people outside its territory through this process.173 Any decision reached through this process will have to be based upon adequate information. Measures have already been adopted to ensure this.174 The IMO’s Facilitation Committee has indicated this should take into account the master’s preferred arrangements for disembarkation and the immediate basic needs of the rescued persons.175 However, the precise weight to be given to his view is not at all clear. Goodwin-Gill and McAdam go further than this and suggest that the amendments to the SOLAS and the SarCon make it clear that the master has sole discretion to make decisions that are necessary for the safety of life at sea, including the treatment and care of rescued persons and where they are to be landed.176 This seems to read too much into the amendments. Nothing in Regulation 34-1 of Chapter V of the SOLAS relates to the landing of persons. Also, the grant of absolute discretion to the master would run counter to the cooperative paradigm being developed, and it is clear that certain coastal States still reserve the authority to refuse access to ports, regardless of the master’s determination of the circumstance.177 The present writer’s view is that the master’s preferred view only raises a presumption, which can only be challenged on humanitarian or safety grounds. Two final points should be made here. First, although the absence of a specific obligation to allow disembarkation of rescued persons appears to be critical to the system of protection, it is clear that such an obligation is presently unacceptable to many States. In practice, it would only deter coastal States from engaging 171

172

173 174

175 176 177

See further Guy S. Goodwin-Gill, “State Responsibility and the ‘Good Faith’ Obligation in International Law” in Issues of State Responsibility before International Judicial Institutions, ed. Malgosia Fitzmaurice and Danesh Sarooshi (Oxford: Hart Publishing, 2002), 75–104. R. v. Immigration Officer at Prague Airport and another (Respondents), ex parte European Roma Rights centre and others (Appellants) [2004] UKHL 55, paras. 60–63. Ibid., para. 64. See para. 5.1.5 of the IMO Guidelines on the Treatment of Persons Rescued at Sea. Also Standard 2.20 of the Convention on the Facilitation of International Maritime Traffic 1965. Above note 170. Goodwin-Gill and McAdam, above note 66, p. 284. See for example, the MV Pinar E incident discussed above, and the Tampa incident.


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in rescue operations. Indeed, it is notable that ExCom has long since conceded that solutions should “not only be sought in the context of legal norms but also through practical arrangements aimed at removing as far as possible the difficulties which have been encountered”.178 As such there is little point in advocating such a duty. Second, if the focus is on cooperative mechanisms, then it is suggested that this may need to be structured, and possibly institutionalised. In the past schemes, such as DISERO and RASRO have achieved some success by making the possible means and outcomes of shared actions more predictable, although one must question whether they would be appropriate to the more complex asylum and migration issues currently facing States. Unless a structured approach to cooperation and burden sharing exists, then incidents can only be managed on an ad hoc basis. As incidents like the MV Pinar E and Tampa indicate such an approach is more likely to generate a stand-off between States and jeopardise the provision of necessary and appropriate assistance to rescued persons.179

6. Conclusions Although the fragmentation of international law poses certain risks to the development to international law and the systematic development of human rights standards in what might be considered to be technical fields, this is not an inevitable process. Indeed, the fact that the law of the sea requires an integrated approach ab initio and that it is imbued with wider normative considerations, such as equity, due regard and other principles of good order, renders it quite susceptible to wider humanitarian considerations.180 Central to the law of the sea is the UNCLOS, which provides a framework for the regulation of ocean spaces, primarily through the allocation of competences to both coastal and flag States. Respect for its general rules is fundamental to the maintenance of order at sea. However, it must also be appreciated that the UNCLOS only addresses maritime migration, interdiction and rescue at sea obliquely. This is compounded by the lack of rules of reference and the fact that the UNCLOS is not readily susceptible to amendment. As a result it is more sensible for human rights considerations to

178 179

180

ExCom Conclusion No. 26(XXXIII) – 1982, para. (d). Cf, the Clementine Maersk incident, a Danish registered container ship rescued 27 persons in the Mediterranean off the coast of Sicily. Four days later it disembarked them at the UK port of Felixstowe, the vessels next port of call, where they subsequently sought asylum. See UNHCR News, 9 June 2005. Oxman, above note 27, 377. Also the Separate Opinion of Judge Treves in the ‘Juno Trader’ case. ITLOS Reports 2004, at para 3.

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be brought to bear on maritime migration through other instruments and processes. So much is already apparent in the way that various search and rescue obligations have developed in treaty regimes such as SOLAS and SarCon. In the last few years, these instruments have become increasingly sensitive to broader humanitarian considerations. What is clear from these instruments is a general lack of will to fundamentally change the current allocation of competences in respect of maritime activities. The exclusivity of flag State responsibility and coastal State control remain immutable. In order to deal with migration activities at sea what is likely to become more common is the use of ‘shiprider’ agreements or cooperative measures at the regional level which allow States to grant ad hoc or specific consent to non-flag State interdictions in limited circumstances.181 In principle there is nothing wrong with such measures, so long as they are done in accordance with human rights standards. What can be detected is a move towards increased coastal State authority for the monitoring and control of, and response to, maritime rescue operations. As a consequence, coastal States will be under greater pressure to deal directly with any migration issues arising in the context of maritime interdictions and rescue operations, especially as many maritime migrations are inherently risky operations carried out in dangerous conditions. This should be regarded as a positive development, as it clarifies existing responsibilities and provides for clearer lines of control. However, it is worth cautioning against some potentially counterproductive consequences of this trend. Where cause for concern has been voiced is in respect of the development of maritime interdictions alongside pre-border controls in the territories of third States.182 Ultimately this may result in States selectively extra-territorialising certain aspects of their border control. At the very least this may reduce the consistency, transparency and accountability of migration controls. Despite the above exhortations of coastal State responsibility, there are few new substantive norms and certainly none that require coastal States to either process asylum claims at sea or admit potential claimants into the State to have such claims processed. There is also a general unwillingness to develop new substantive norms that curtail the authority of States to control their borders, either on land or at sea. Whilst there have been significant developments in the elaboration of rescue obligations, care must be taken not to collapse the distinction between rescue obligations and migration control, and view the former 181

182

‘Shiprider’ agreements allow for law enforcement officials to embark on ships of a different nationality for the purpose of enhancing that ships law enforcement capacity, for example by authorising enforcement actions by the vessel in the territorial sea of the State to which the ship rider is a national or to authorise the boarding of vessels possessing the same nationality as the shiprider. See Gil-Bazo, above note 74.


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as requiring States that coordinate rescue activities to assume significantly greater responsibility for potential asylum seekers.183 It is essential that political considerations concerning migration do not compromise the neutral operation of any rescue obligations. Perhaps realising the difficulty of challenging the most sensitive issue of sovereignty and border control, States and international organisations have exhibited a clear preference for adopting soft law measures. These include flexible non-binding guidelines, such as the IMO Guidelines on the Treatment of Persons Rescued at Sea and the various UNHCR Executive Communications. Whilst these do not presently restructure States obligations, they clarify existing obligations, promote cooperation between the affected parties and contribute to the development of more binding rules in the future. The matter remains high on the agenda of the IMO. Both COMSAR and the FSI Sub-committee of the MSC have it as a high priority on their agenda for 2009, with the programme of work to be completed by 2010.184 Finally, it is clear that developments in this field have not occurred in the isolation of particular fields of law, but with a considerable degree of cooperation between international organisations and experts from across a number of fields.185 This integrated approach must continue.

183

184 185

ExCom has stressed that when vessels respond to persons in distress at sea, they are not engaged in interception. See ExCom Conclusion No. 97(LIV) – 2003. MSC 84/24, paras. 22.19–22.25. See for example, as the conclusions and recommendations of the Expert Roundtable on Rescueat-Sea in Lisbon, Portugal in March 2002; the Expert Meeting on Interception and Rescue in the Mediterranean in Athens, Greece in September 2005; and the meeting of State Representatives on the same issue in Madrid, Spain in May 2006. The findings are reproduced in UNHCR, Selected Reference Materials. Rescue at Sea, Maritime Interception and Stowaways (Nov. 2006), pp. 154ff.

The Legal Framework Concerning the Smuggling of Migrants at Sea under the UN Protocol on the Smuggling of Migrants by Land, Sea and Air Tom Obokata 1. Introduction This chapter will examine the basic legal framework on immigration control at sea stipulated by the Protocol against Smuggling of Migrants by Land, Sea and Air (Smuggling Protocol), attached to the United Nations Convention against Transnational Organised Crime (Organised Crime Convention).1 The need to deal with the smuggling of migrants was recognised by the international community in the late 1990s. In 1997, in response to the growing problem of illegal migrants arriving by sea, Italy proposed a draft Convention to Combat Illegal Migrant by Sea during the 76th session of the Legal Committee of the International Maritime Organisation.2 This initiative by the IMO ran parallel to the ongoing discussions being held within the United Nations system to combat transnational organised crime. Around the same time, Austria suggested the adoption of a new treaty to deal with migrant smuggling to the UN SecretaryGeneral,3 while Argentina proposed the drafting of a new convention against trafficking of minors before the 7th session of the United Nations Commission on Crime Prevention and Criminal Justice.4 These combined efforts eventually led to the creation of an Ad Hoc Committee by the United Nations General

1

2

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A/RES/55/25 (15 November 2000). The Protocol entered into force on 28 January 2004. As of January 2010, 122 States are Parties to the Protocol. See http://www.unodc.org/unodc/en/ treaties/CTOC/countrylist-migrantsmugglingprotocol.html (6 January 2010). Claire Brolan, “An Analysis of Human Smuggling Trade and the Protocol Against Smuggling of Migrants by Land, Sea and Air (2000) from a Refugee Protection Perspective,” International Journal of Refugee Law 14 (2001): 561, 581–582. David McClean, Transnational Organized Crime: A Commentary on the UN Convention and its Protocols (Oxford: Oxford University Press, 2007), 21. Dimitri Vlassis, “The Global Situation of Transnational Organised Crime, The Decision of the International Community to Develop an International Convention and the Negotiation Process,” in Annual Report for 2000 and Resource Material (Series No.59) (Tokyo: United Nations Asia and Far East Institute for the Prevention of Crime and Treatment of Offenders, 2000), 492.


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Assembly to elaborate upon the international instruments against transnational organised crime and the trafficking/smuggling of migrants.5 Through a series of sessions between January 1999 and July 2000, the Ad Hoc Committee finalised these instruments, which were formally adopted by the UN General Assembly in November 2000. What follows is an examination of the key parts of the Smuggling Protocol which relate to immigration control at sea. The Chapter starts by looking at the definition of smuggling of human beings. It then will highlight general obligations imposed by the Smuggling Protocol as regards the legal framework to deal with smuggling of migrants at sea. The main conclusion reached is that, while the Smuggling Protocol is an important step forward to deal with smuggling, problems including the principle of sovereignty and a lack of due regard for the human rights of smuggled migrants may undermine its effectiveness.

2. The definition of smuggling The terms ‘smuggling’ and ‘trafficking’ of human beings have been used interchangeably without a clear distinction in the past. However, with the adoption of the Organised Crime Convention, the Smuggling Protocol, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol),6 it is now clear that there are a number of differences. Under Article 3 of the Smuggling Protocol, smuggling means: The procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of illegal entry of a person into a State Party of which the person is not a national or permanent resident.

According to Article 3 of the Trafficking Protocol: Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring, or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at the minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or removal of organs.

There are four key differences between smuggling and trafficking. Firstly, trafficking is carried out with the use of coercion and/or deception, whereas smuggling 5 6

A/RES/53/111 (20 January 1999). Supra.

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is not, indicating that the latter is a voluntary act on the part of those smuggled. Secondly, the services of smugglers end when people reach their destination, while trafficking entails the subsequent exploitation of people. Thirdly, international movement is required for smuggling, whereas trafficking can take place both internally and externally. Fourthly, entry into a State can be both legal and illegal in the case of trafficking, while smuggling is characterised by illegal entry. In sum, smuggling is about the facilitation of illegal migration of people. It is important to stress, however, that a clear distinction between these practices cannot be drawn in many cases, as smuggling can be the beginning of a trafficking process, for example.7 A further point to note is that smuggling and related offences are to be regarded as part of organised crime under the Organised Crime Convention.8 This means that smuggling facilitated by friends/relatives, or by agents who are not part of any organised criminal group, are excluded from the current legal framework. A number of policy implications arise from the smuggling/trafficking distinction in relation to immigration control. The use of coercion and subsequent exploitation for trafficking has the effect of portraying those trafficked as victims of human rights violations, and this reinforces the case for their protection. However, the definition of smuggling is likely to be interpreted to suggest that smuggled migrants are willing participants who violate national immigration laws and regulations. Therefore, States may apply enforcement measures such as arrest, detention and return against migrants. As will be shown below, this has been the approach taken by some States Parties to the Smuggling Protocol.

3. The key obligations of States under the Smuggling Protocol General obligations Essentially, the Smuggling Protocol represents a criminal justice response to the smuggling of migrants by sea, in that its main emphasis is upon the prosecution and punishment of smuggling and smugglers. Many provisions in the Protocol

7

8

On this, see Tom Obokata, “Smuggling of Human Beings from a Human Rights Perspective: Obligations of Non-State and State Actors under International Human Rights Law,” International Journal of Refugee Law 17 (2005): 394. Interpretative Notes for the Official Records (Travaux Préparatoires) of the Negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (Interpretative Notes), A/55/383/Add.1 (3 November 2000), para. 92. This and other documents relating to the drafting history of the Smuggling Protocol were published by the Ad Hoc Committee.

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are directed towards this aim. One example is the obligation to criminalise smuggling and related activities, including the production of fake passports and other ID documents and the facilitation of overstaying.9 The Protocol also obliges States to criminalise inchoate offences (e.g. attempt) and secondary participation (accomplice/joint enterprise).10 Further, States must increase the penalties in cases of aggravating circumstances (danger to lives of migrants, or inhuman or degrading treatment against them).11 Prohibition of these offences is a straightforward obligation, and according to a report submitted to the Conference of Parties,12 which monitors the implementation of the Convention and Protocols, most State Parties either already had legislation, or have adopted legislation subsequent to the adoption of the Smuggling Protocol to criminalise the act of smuggling and related offences.13 Aggravating circumstances as stipulated in Article 6(3) are also provided for in domestic legislation of many States.14 While these measures do not directly relate to immigration control, they should be regarded as part of an overall strategy to cut the flow of smuggled migrants, because the prosecution and punishment of smugglers can deter them from facilitating illegal migration. Other general obligations stipulated under the Smuggling Protocol are preventative in nature. Article 10 obliges States to facilitate the exchange of intelligence. The information to be covered includes embarkation points, routes and means of transport used by organised criminal groups, travel documents, means and methods of concealment of migrants, and good practice in relation to law enforcement. What becomes clear from this is the importance of intelligence-led law enforcement, which is vital for prevention of serious crimes such as terrorism and organised crime, is recognised in Smuggling Protocol. Other Articles touch upon the training of law enforcement and immigration officials,15 the prevention of unlawful production of travel/identity documents,16 and awareness raising and

9 10 11 12 13

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15 16

Article 6(1). Article 6(2). Article 6(3). Established by Article 34 of the Organised Crime Convention. Implementation of the Protocol against Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organised Crime: Updated Information Based on Additional Responses Received from States for the First Reporting Cycle (Updated Information 2005), CTOC/COP/2005/4/Rev.1 (8 August 2006), para. 21–23, 29–30. Ibid., para. 38., The report noted that some States have a wider coverage of aggravating circumstances, such as torture, abuse of authority, involvement of organised criminal groups, etc. Article 14. Article 12.


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support to States of origin to eradicate root causes of smuggling such as poverty.17 The eradication of the causes is an important point, as it can reduce the instances of migrants resorting to smugglers in their States of origin. This further reduces the need to implement immigration and border control measures by destination States. There is one provision which is directly relevant to immigration control. Under Article 11 on “Border Measures,” States are under obligation to adopt legislative and other measures to prevent means of transport from being used in the commission of the migrant smuggling.18 As the Protocol applies to the smuggling of migrant by land, sea, and air, “means of transport” includes vessels at sea. One measure to be taken in this regard is the imposition of carrier sanctions, whereby States would penalise those commercial carriers which transport migrants without valid travel documents.19 Carrier sanctions of this type has been implemented mostly in developed countries,20 and it is worth noting that the wording of this Article was borrowed from a proposal by put forward by the European Community at the 9th session of the Ad Hoc Committee’s informal consultation.21 The Smuggling Protocol strengthens this by extending this measure to other regions of the world. There are, however, a few points to note. For one, Article 11 does not oblige carriers to make judgements or to assess the validity of travel documents as that is the responsibility of Member States.22 Article 11 also does not specifically oblige carriers to return migrants who are not in a possession of valid travel documents. There is a separate provision for return by States, which is Article 18. Inclusion of this Article was regarded as necessary in order to deter migrants and organised criminal groups.23 Under this Article, migrants’ States of nationality and permanent residence have an obligation to facilitate and accept return of their nationals and permanent residents.24 As to receiving or destination States, they are obliged

17 18 19 20

21 22 23 24

Article 15. Article 11(2). Articles 11(3) and (4). See for example, Article 26 of the Schengen Implementing Convention 1985, Council Directive (EC) 2001/51 supplementing the provisions of Art. 26 of the Convention implementing the Schengen Agreement, OJL 187/45 (10 July 2001), and Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data, OJ L261/24 (6 August 2004). See also Antonio Cruz, Shifting Responsibility: Carriers’ Liability in the Member States of the European Union and North America(Stoke-on-Trent: Trentham Books Limited, 1995). A/AC.254/5/Add.24 (7 April 2000). Article 13. See also Interpretative Notes, supra, para. 103. A/AC/254/Add.1/Rev.4 (27 December 1999). Articles 18(1) and (2).

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to take all appropriate measures to carry out the return in an orderly manner and with due regard for the safety and dignity of the person.25 A point to note here is the difference of language between the Trafficking and Smuggling Protocols. The former contains a similar provision, Article 8 on repatriation of trafficked victims. Article 8(2) provides that repatriation of trafficking victims shall preferably be “voluntary.” This term, however, is not found in Article 18 of the Smuggling Protocol. This suggests that while States must have due regard for the safety of smuggled migrants, forcible removal can be undertaken against them. However, States parties are under an obligation to respect international human rights and humanitarian law, including the 1951 Refugee Convention.26 Therefore, the return of migrants should not be implemented if it contravenes norms and principles established under international law such as non-refoulement. It is not clear whether Article 18 applies to migrants found at sea, as the travaux préparatoires does not provide any guidance on this point. However, as the provision does not explicitly exclude its extraterritorial application, it may be assumed that it applies to all situations of smuggling. In relation to the treatment of smuggled migrants, there are two key provisions. In accordance with Article 5, States should not initiate criminal prosecution against migrants for the fact of being smuggled. This provision was based upon a proposal put forward by Austria and Italy.27 This is a sound provision as the Protocol obliges States to focus more on the prosecution and punishment of those who facilitate smuggling rather than migrants themselves. Nevertheless, some tension is caused by Article 6(4) which provides that “(n)othing in this Protocol hall prevent a State Party from taking measures against a person whose conduct constitutes an offence under its domestic law.” This means that States are still entitled to bring criminal prosecution against smuggled migrants for breaching various immigration and criminal laws during the course of their journey. McClean observes in this regard that Article 5 does not give migrants broad immunity from criminal prosecution in practice.28 Indeed, the majority of the State Parties in 2005 stated that although smuggled migrants were not penalised for the fact of being smuggled, they nevertheless faced criminal or administrative sanctions for illegal entry or residence.29 Another provision of note on the treatment of smuggled migrants is Article 16, entitled “Protection and Assistance Measures.” This article obliges States to take appropriate measures to protect the rights of migrants who have been 25 26 27 28 29

Article 18(5). Article 19. A/AC.254/4/Add.1 (11 December 1998). McClean, supra, 381. Updated Information 2005, supra, para 43.


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subject to smuggling, particularly the right to life and the prohibition on torture. States also have to take account of the special needs of women and children, who are more vulnerable than adult men.30 Finally, if a migrant is detained, States must grant access to consular assistance under Article 16(5). An analysis of State practice reveals that protection measures have been implemented in some States. For instance, temporary shelters/receptions are available in Indonesia, Norway and Turkey, whereas Latvia goes further, to provide social services and rehabilitation to smuggled migrants.31 In addition, legislation and assistance measures in some States reflect the special needs of women and children. In this regard, New Zealand, Croatia and the United States have separate reception centres for women, and a priority is given to accommodating minors.32 Specific obligations in relation to smuggling of migrants by sea Chapter II of the Smuggling Protocol deals with the smuggling of migrants by sea. To be specific, it provides guidance as to what to do when a State encounters a vessel33 which is transporting smuggled migrants. The Chapter mainly applies to smuggling being carried out on the high seas, because the existing principles relating to the rights of coastal States apply if the act is taking place in the territorial sea. The Interpretative Note in this regard observes that the principle relating to the rights of coastal States is well established in the law of the sea and did not need to be restated in the Protocol.34 There are three provisions in Chapter II. Article 7 provides that “States Parties shall cooperate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea, in accordance with the international law of the sea.” The phrase “international law of sea” includes the UN Convention on the Law of the Sea and other instruments.35 The Smuggling Protocol therefore aims to strengthen the existing legal framework on international co-operation at sea.

30 31

32 33

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Article 16(4). Implementation of the Protocol against Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organised Crime: Information Received from States for the Second Reporting Cycle (Analytical Report 2006), CTOC/COP/2006/7 (23 August 2006), para. 14. Ibid., para. 16. A “vessel” for the purpose of the Smuggling Protocol is defined as “any type of water craft, including non-displacement craft and seaplanes, used or capable of being used as a means of transportation on water, except a warship, naval auxiliary or other vessel owned or operated by a Government and used, for the time being, only on government non-commercial service.” See Article 3(d). Interpretative Note, supra, para. 98. Ibid.

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Article 8 provides for detailed measures to be taken by States when they detect a vessel which might be engaging in the smuggling of migrants. It is important to note from the outset the relevance to the Smuggling Protocol of the general rule on jurisdiction over vessels on the high seas, namely the flag principle, stipulated in the Lotus case,36 the Convention on the High Seas 195837 and the UN Convention on the Law of the Sea 1982.38 This is also affirmed in Article 15(1) (b) of the Organised Crime Convention. Therefore, the Protocol strengthens customary international law and practice on this issue. Under this principle, a flag State has jurisdiction over vessels carrying its flag on the high seas, and therefore bears a primary obligation to take appropriate measures against them if they are smuggling migrants.39 In line with these provisions, some legislative changes have been made among States Parties. In New Zealand, for example, Parliament amended Crimes Act 1961 to give effect to the flag principle over ships registered to New Zealand.40 In Australia, the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking, and Other Measures) Act 2002 41 was passed after it signed the Protocol in 2001. In addition to creating offences of smuggling and related activities, this legislation provides that the flag principle42 applies to people smuggling as a jurisdictional requirement. Further, in Serbia, the new Criminal Code adopted in 200543 extends criminal jurisdiction over vessels.44 These are not instruments of extraterritorial immigration control per se. However, as noted above, they can be regarded as part of overall strategy to prevent smuggling by sea. While the primary obligation is imposed upon flag States, it is impossible for them to monitor the activities of all registered vessels and oftentimes other States encounter foreign vessels suspected of smuggling migrants. Article 8 provides for further guidance for such circumstances. If a State discovers a vessel exercising freedom of navigation on the high seas, Article 8(2) obliges it to notify the flag

36 37 38 39 40

41 42 43 44

PCIJ, Ser. A, no. 10 (1927), p. 25. 450 UNTS 82, Article 6(1). 1833 UNTS 396, Article 92(1). See also Article 15(2) of the Organised Crime Convention. Crimes Amendment Act 2005. The need to amend this legislation was envisaged after the government of New Zealand ratified the Organised Crime Convention and its Protocols. See the New Zealand Ministry of Foreign and Trade Affairs information on the Smuggling Protocol at http://www.mfat.govt.nz/Treaties-and-International-Law/03-Treaty-making-process/NationalInterest-Analyses/0-Smuggling-of-Migrants.php#migrants (accessed 4 November 2009). Act No. 141 (2002). As stipulated in Section 15.2 of the Criminal Code Act 1995. Official Gazette of RS, Nos. 85/2005, 88/2005, 107/2005. Article 6.


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State concerned, and the latter is obliged to confirm the registry of the vessel in question as soon as possible.45 The next step is for the discovering State to seek authorisation from the flag State to board, search and take appropriate measures against the vessel if it has reasonable grounds to suspect that the vessel in question is smuggling migrants.46 If an authorisation is given by the flag State, then the discovering State must inform the former of any measures taken afterwards.47 The flag State can attach conditions in relation to the measures to be taken by the discovering State, and it must act within the condition specified.48 What becomes apparent here is that while other States can take action against vessels carrying smuggled migrants on the high seas, the notion of State sovereignty as represented in the flag principle is the underlining rule behind the Smuggling Protocol. There are some exceptions to the exercise of the flag principle, however. To begin with, the Smuggling Protocol stipulates that when the lives of people on board are in danger, then the discovering State can take immediate steps to deal with such a situation.49 In addition, if the registry of a vessel is not immediately clear (e.g. no flag), then the discovering State may board and search the vessel.50 This provision is similar to Article 110 of the UN Convention on the Law of the Sea 1982, which allows a warship (and therefore a State) to visit and board a vessel if it has reasonable grounds to suspect that the vessel is without nationality. However, the term “may” here is worth noting. At the 9th session of the Ad Hoc Committee, the term “shall” was replaced by “may.”51 This means that the obligation here is not absolute, and therefore many smuggled vessels may go unnoticed. Shaw points out in this regard that although a right to approach a vessel without nationality is established as a matter of customary international law, the same is not true for a right to visit or board it.52 This provision is problematic particularly when the safety and the lives of those on board are in danger, and also conflicts with Article 8(5) just mentioned. This is because it is extremely difficult, if not impossible, to decide whether or not protective measures are necessary unless the discovering State’s officials can board and examine the vessel in question. As States are obliged to respect the principles

45 46 47 48 49 50 51 52

Articles 8(2) and (4). Article 8(2). Article 8(3). Article 8(5). Ibid. Article 8(7). A/AC.254/4/Add.1/Rev.6 (19 July 2000). Malcolm Shaw, International Law (5th ed) (Cambridge: Cambridge University Press, 2003), 547–548.

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and norms of international human rights as noted above, particularly the right to life and the prohibition against torture from which no derogation is permitted as a matter of international law,53 an argument may be made to allow States to board a vessel for early detention or timely provision of protection, if its nationality is unclear. Another exception applies to foreign vessels carrying slaves. If a discovering State (warship) has reasonable grounds to suspect that a foreign vessel is carrying slaves, then it may visit and board the vessel itself.54 Slavery refers to “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”55 The key phrase here is the “right of ownership.” Generally speaking, in order for one to be recognised as a slave, he/she has to be owned by the slave master for exploitation.56 This is a significant exception as a vessel may be smuggling migrants who are to be used as slaves upon arrival.57 The exception is consistent with the prohibition on slavery and the slave trade which are part of customary international law.58 Finally, there is a right of “hot pursuit.” A coastal State may exercise a right of hot pursuit if a foreign vessel carrying smuggled migrants escapes from its internal or territorial water, for instance.59 If a State decides to take any measures against a vessel suspected of engaging in people smuggling, Article 9 further sets out various rules which States must observe. First and foremost, a discovering State must treat people on board humanely.60 It is also obliged to take due account of the security of a vessel,61 the commercial or legal interests of the flag or other States,62 and the environmental suitability of measures taken.63 In addition, in accordance with Article 9(2), if it is later discovered that the vessel in question was not engaging in smuggling, then the discovering State must provide compensation for any loss or damages

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54

55 56

57

58 59 60 61 62 63

See for instance, Article 4 of the International Covenant on Civil and Political Rights, 999 UNTS 171, and Article 15 of the European Convention on Human Rights, ETS No. 5. Articles 13 and 22(1)(b) of the Convention on the High Seas 1958, supra, and Articles 99 and 110(1)(b) of the UN Convention on the Law of the Sea, supra. Article 1 of the Slavery Convention 1926, 60 LNTS 253. Tom Obokata, Trafficking of Human Beings From a Human Rights Perspective: Towards a Holistic Approach (Leiden: Martinus Nijhoff Publishers, 2006), 19–20. Samuel Menefee, “The Smuggling of Refugees by Sea: A Modern Day Maritime Slave Trade,” Regent Journal of International Law 2 (2003–2004): 22. Prosecutor v Kunarac, IT-96-23, Trial Judgment, 22 February 2001, para. 520. Article 111 of the UN Convention on the Law of the Sea, supra. Article 9(1)(a). Article 9(1)(b). Article 9(1)(c). Article 9(1)(d).


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caused.64 Finally, Article 9(3) makes it clear that all States must respect the exercise of jurisdiction by coastal and flag States in carrying out any activities towards vessels. What becomes apparent in looking at these provisions is that the Smuggling Protocol is more concerned with protecting the national interests of States than the welfare of smuggled migrants, unlike the Trafficking Protocol which has a stronger emphasis on trafficked migrants. Most of the measures stipulated in Chapter II of the Smuggling Protocol are primarily directed at vessels smuggling migrants or smugglers themselves, and it provides very little guidance as to what happens to migrants after they are discovered at sea. At the very minimum, it is clear that States must treat those on board, including smuggled migrants, humanely and provide immediate protection and assistance as stipulated by Articles 9 and 16. However, measures such as the provision of temporary or permanent residence permits, employment, education and training, which are found in the Trafficking Protocol,65 are not provided for under the Smuggling Protocol. This can be taken as meaning that Member States do not have any obligation to accept smuggled migrants into their territories. One case which has raised concerns and fierce criticisms over the treatment of smuggled migrants discovered or rescued at sea is the refusal by the Australian government to admit more than 400 asylum seekers on board MS Tampa, a Norwegian freighter which rescued them from a sinking ferry in 2001. The most likely outcome under such circumstance is the return of migrants to their States of origin or their being sent to a third State. An exception lies when the return of migrants constitutes a breach under international human rights or humanitarian law as noted above. In particular, States are under obligation to observe the principle non-refoulement. This principle applies extraterritorially, in that returning migrants to territories where they would face persecution66 or torture,67 whether removal occurs within or outside State territory, will be in breach of a State’s human rights obligations.68 While this principle clearly applies to the flag States if they have “effective control” over their vessels,69 discovering States can also be held liable. In this regard,

64

65 66 67

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This was proposed by China and Belgium during the drafting stage of the Smuggling Protocol. See A/AC.254/5/Add.15 (24 November 1999) and A/AC/254/5/Add.21 (11 February 2000). The text itself was taken out of Article 110(1) of the UN Convention on the Law of the Sea. Articles 6 and 7. Article 33 of the 1951 Refugee Convention. See for example, Article 3 of the European Convention and Human Rights, and Soering v. United Kingdom, Application no. 14038/88, Judgment of 7 July 1989. Guy S. Goodwin-Gill and Jane McAdam, The Refugees in International Law (3rd ed.) (Oxford: Oxford University Press, 2007), 385. Banković v Belgium, BHRC 11 (2001) 435, para. 71.

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Inter-American Commission on Human Rights held that the practice of the United States to interdict and return Haitian refugees on the high seas constitute a breach of their human rights.70 In addition, this obligation seems to extend to those acting on behalf of States.71 This means that vessels which are ordered by States to return migrants can be held liable for breach of their human rights.

4. Key problems with the current legal framework It is fair to say that the Smuggling Protocol is an important step forward for the suppression of smuggling by sea. Before this instrument, the legal framework to address the practice was not sufficient. It should be acknowledged that international instruments including the UN Convention on the Law of the Sea 1982 could have been used to address some aspects of smuggling. Coastal States, for instance, can exercise criminal jurisdiction over foreign vessels smuggling migrants in their territorial waters.72 However, a difficulty arises in relation to the smuggling of migrants on the high seas. The main provisions of these instruments relate to transport of slaves as noted above. This is problematic because a very few, if any, migrants are slaves and these instruments do not apply to migrants who are simply going abroad for better opportunities or those escaping from persecution, for instance. The Smuggling Protocol therefore fills this gap as it applies to all migrants. From the point of view of immigration control, the prevention and suppression can reduce the flow of illegal migration, thereby decreasing the need to implement immigration control measures. Nevertheless, the Smuggling Protocol raises a series of concerns. One of the key problems is the principle of non-intervention (State sovereignty). This principle is without a doubt one of the fundamental principles of international relations, and is regarded as part of customary international law.73 In relation to the smuggling of migrants by sea, the Smuggling Protocol strengthens this principle by affirming, among others, the right of flag States to take action. While other States can take certain measures as noted above, this may not happen as they do not want their vessels to be interfered with by others under similar circumstances. A related point to this is the “soft” nature of key obligations. This is evident in,

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Haitian Center for Human Rights v. United States, Case 10.675, Report No. 51/96, InterAm.C.H.R.,OEA/Ser.L/V/II.95 Doc. 7 rev, para. 156–158, and 171. Goodwin-Gill and McAdam, supra, 386. Article 27(1)(a) of the Law of the Sea Convention is applicable because a crime of smuggling has various consequences to coastal States. Military and Paramilitary Activities in and against Nicaragua: Nicaragua v United States of America (1986) ICJ Reports 14, para. 202.


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among others, Article 8(2) of the Smuggling Protocol. It provides that a discovering State “may” notify and request authorisation to take action from the flag State. In turn, the flag State also “may” give authorisation to the discovering State to board, search, and so on. The use of the term “may” as opposed to “shall” means that it is difficult to establish accountability for non-compliance.74 It is worth noting, however, that when it comes to protection of State sovereignty and non-intervention, the obligations of States are framed in a stronger term. Therefore, the discovering State “shall” notify the measures taken on the flag State immediately, and is not permitted to take measures not expressly authorised by the flag State.75 What is evident, then, is inconsistency in the Smuggling Protocol. The detection of vessels which are smuggling migrants at sea requires active co-operation between flag and non-flag States, and this is recognised in Article 7 of the Smuggling Protocol. However, this is effectively undermined by Article 8 which protects the principle of non-intervention. The concept of “reasonable grounds” stipulated in Article 8 does not help either, as it can be interpreted differently by States. All of these cast some doubt on the effectiveness of the Protocol because the suppression of smuggling of migrants at sea may not be rigorously pursued. An added problem is the fact that it may be extremely difficult to detect a vessel actually smuggling migrants in practice. Smugglers will make effort to conceal migrants and disguise vessels to avoid detention and other law enforcement actions. Another area of concern in the current legal framework is the protection afforded to smuggled migrants. Protection is particularly crucial for smuggled migrants at sea, because they are more vulnerable due to limited access to protection and other forms of assistance, compared to those being smuggled by land, for instance. The earlier drafts of the Smuggling Protocol did not mention anything about the protection of smuggled migrants.76 This was regarded as problematic by many, and in order to address this lack of emphasis on the human rights of smuggled migrants, three international organisations, the Office of the High Commissioner for Human Rights, the Office of the High Commissioner for Refugees and the International Organisation for Migration, intervened.77 At the 11th session of the Ad Hoc Committee, the protection of migrants was brought up as one of the key issues. The final text, based on proposals by

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See also Article 8(7) as noted above. Articles 8(3) and (5). See for example, A/AC.254/4/Add.1/Rev.1 (13 May 1999), A/AC.254/4/Add.1/Rev.3 (22 November 1999), and A/AC/254/4/Add.1/Rev.5 (20 March 2000). See A/AC.254/27 (8 February 2000) and A/AC.254/27/Corr. 1 (22 February 2000).

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Azerbaijan, Belgium, Italy, Mexico and Norway, was adopted, and the protection of the rights of migrants was included in Article 2 as one of the purposes of the Smuggling Protocol.78 Even with this inclusion and Article 16 noted above, protection is not emphasised as strongly as the Trafficking Protocol. For instance, unlike the Trafficking Protocol, the Smuggling Protocol does not use the term “victims” in referring to smuggled migrants. During the drafting stage of the Smuggling Protocol, although this point was debated, it was eventually decided that the term “victim” would be inappropriate for smuggled migrants.79 This strengthens the argument that States focus on the violation of immigration and criminal laws, rather than whether individuals are in need of protection. This can in turn result in separate legislative, policy and law enforcement responses. It is worth noting in this regard that most States which submitted their reports to the Conference of Parties stated that trafficking and smuggling are treated as separate offences.80 To be specific, they regard trafficking as a coerced activity whereas smuggling is carried out voluntarily by migrants.81 All of this means, among others, that States are likely to apply law enforcement measures such as arrest, detention and return against smuggled migrants, and some of the examples illustrated above point to this conclusion. Further, the travaux préparatoires of Article 16 reveals that the provision is a product of compromise. An earlier draft of Article 16(1) included the principles of non-discrimination and non-refoulement, in addition to the right to life and prohibition of torture.82 However, concerns were expressed by many States that it would impose positive obligations on them,83 and therefore the provision was eventually watered down. Similarly, an earlier version of Article 16(2) provided that States had to adopt appropriate protection measures against violence inflicted by public officials as well as private groups and individuals.84 Many States again expressed their concern over the term “public officials”85 and this term was eventually dropped from the actual text. This effectively rules out the accountability of States when their officials violate the human rights of smuggled migrants on board for instance. All of these give a clear indication of the unwillingness of States to afford protection to smuggled migrants. 78

79 80 81 82 83 84 85

UNODC, Travaux Préparatoires of the Negotiation for the Elaboration of the United Nations Convention against Transnational Organized Crime and Its Protocols (2006), p. 461. Ibid. Updated Information 2005, supra, para. 26. Ibid. A/AC.254/4/Add.1/Rev.6, supra. Ibid. Ibid. Ibid.


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In terms of the substance of protection, smuggled migrants do not always receive adequate protection. A concrete example of this problem can be found in the application of the principle of non-refoulement. While this is sound in principle, it does not always work in practice. One case which illustrates this is Sale, Acting Commissioner, INS v Haitian Centers Council.86 In this case, the United States Supreme Court held that neither domestic law nor Article 33 of the 1951 Convention limited the power of the President to order the law enforcement authorities to repatriate undocumented migrants on the high seas. While this case was decided before the adoption and coming into force of the Smuggling Protocol, the United States still engage in the interdiction and return of migrants without due regard to individual situations.87 If the United States decides not to return migrants, they may be detained for a long time. In this regard, the then U.S. Attorney-General Ashcroft made it clear that those who arrived by boat without proper entry documents would be detained automatically.88 Further, not all migrants face persecution or torture in their States of origin, and therefore States can return them even when these migrants have experienced various human rights violations during the course of their journey, including dehydration, malnutrition or sexual and physical violence. Aside from the problems with the current legal framework, there are other issues which hamper the successful implementation of the Smuggling Protocol. For example, many developing States still lack the technical expertise and resources to effectively prevent and suppress smuggling 89 and a number of States requested technical assistance for improvement. Another problem is the monitoring mechanism for the Smuggling Protocol. The Conference of Parties, established by Article 32 of the Organised Crime Convention, provides an annual forum for Member States and relevant inter-governmental organisations to share information and good practices concerning the suppression of smuggling. However, the powers of the Conference of Parties are limited. Although it is mandated to review the implementation of the Convention and Protocols make recommendation,90 it does not have a power to compel States to take specific measures. To illustrate this point, Member States were required by the Conference to respond to a questionnaire on the implementation of the Smuggling Protocol

86 87

88 89 90

509 U.S. 155 (1993). On this, see Stephen H. Legomsky, “The USA and the Caribbean Interdiction Programme,” International Journal of Refugee Law 18 (2004), and Robert B. Watts, “Caribbean Maritime Migration: Challenges for the New Millenium,” Homeland Security Affairs (Supplement No. 2) (2008). Matter of D-J, 23 I. & N. Dec. 572 (A.G. 2003). Updated Information 2005, supra, para. 47. Articles 32(3)(d) and (e) of the Organised Crime Convention.

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in 2004. One year later in July 2005, only 45 % of States Parties responded.91 A second questionnaire was distributed in February 2006, and 35% of States Parties responded by the deadline specified.92 Despite the fact that Conference repeatedly urged Parties to comply with their reporting obligation,93 the situation has not improved, and this shows a lack of enforcement power on the part of the Conference. In view of all of these, it is concluded that although the Smuggling Protocol can serve as an impetus for States to tackle smuggling of migrants by sea and strengthen immigration control measures, it will not work properly unless its subjects, States, take its obligations more seriously, and cooperate with each other.

5. Conclusion From the point of view of the international legal framework, the above analysis shows that the Smuggling Protocol alone is not sufficient to suppress smuggling of migrants by sea. Therefore, it should be supplemented by other branches of international law to promote and implement effective action. It is submitted that one branch of international law which can complement the Smuggling Protocol is international human rights law. This branch of law is important not only for the smuggled migrants, but also for those who commit smuggling and related offences, particularly in terms of the rights of defendants/suspects. Further, as argued elsewhere,94 international human rights law has the potential to deal with the major causes of migration, such as poverty, persecution by States and others which entail human rights dimensions. In other words, together with the Smuggling Protocol and international law of the sea, international human rights law can facilitate a holistic approach to the problems of smuggling of migrants by sea. Once smuggling of migrants is analysed from multiple angles, and not merely from the criminal justice and immigration control viewpoints, States, the international community and other concerned actors can begin to understand the complexity of the phenomenon and start implementing effective measures for prevention and suppression.

91 92 93 94

CTOC/COP/2005/4 (2 September 2005), para. 11. Analytical Report 2006, supra, para. 6. As stipulated in Article 32(5) of the Organised Crime Convention. See Obokata, supra.

Part III European Union Aspects

Europe beyond its Borders: Refugee and Human Rights Protection in Extraterritorial Immigration Control Maarten den Heijer 1. Introduction Migration is about crossing borders. Defying the rhetoric of globalisation as a process nullifying the relevance of borders (“borders don’t matter anymore”), the border remains the crucial geographical threshold for obtaining entry into another State. For vast categories of migrants, globalisation has all but rendered the notion of the border irrelevant. The border is the first and foremost instrument at a State’s disposal in controlling immigration. The power of States to prevent foreigners from crossing their borders is inherent to a State’s territorial sovereignty, and, as such, firmly underpinned by international law.1 Borders, nonetheless, have proven to be notoriously porous. No matter how high the fences are or how technically advanced border surveillance is, undocumented migrants without a legal right of entry somehow manage to get through.2 From an international law perspective, the border is moreover inherently ineffective as an instrument of immigration control, as the power to exclude aliens remains subject to a State’s treaty obligations, implying that refugees and other categories of migrants may rightfully claim protection and a concurring right of entry once they have succeeded in presenting themselves at the border. Acknowledging that merely controlling the border is insufficiently effective to prevent unsolicited migrants from entering, European States have in recent decades been adopting strategies which amount to what may be called a process of ‘shifting and multiplication’ of the European external border. In an effort to increase the effectiveness of border controls and immigration policies in general, controls and surveillance in the immediate vicinity of the geographical external

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2

E.g. ECtHR 28 May 1985, Abdulaziz, Cabales and Balkandali v United Kingdom, Appl. Nos. 9214/80, 9473/81, 9474/81, para. 67. On the effectiveness of fortification of the borders, see e.g. Joseph Nevins, Operation Gatekeeper: The Rise of the “Illegal Alien” and the Making of the U.S.-Mexico Boundary (New York: Routledge, 2002) and Jørgen Carling, “Migration Control and Migrant Fatalities at the Spanish-African Borders,” International Migration Review 41 (2007): 316–343.


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border have been supplemented with measures targeted at migrants who have merely shown an intention to cross that border but may still be far away. These measures take a variety of forms and include such practices as the interception of boat migrants on the open seas; the undertaking of pre-boarding checks at international airports in foreign countries; the requirement to submit, in advance of traveling, data identifying the traveller and specifying the passport and travel details; and the ‘outsourcing’ of control tasks to private parties and third countries through the imposition of carrier sanctions and the conclusion of border control arrangements. This process of relocating border controls and shifting responsibilities for border controls has drastically changed the nature of the border. It has been aptly posited that borders are no longer ‘stable and ‘univocal’, but instead, ‘multiple’, shifting in meaning and function from group to group’.3 The border is no longer limited to a State’s territorial boundary, but is being exported, such that a person may experience a foreign border while still within the territory of his own country.4 The process of externalizing, or multiplying, the border is not unproblematic. As borders are not only tools which may be rightfully used to preclude entry of migrants, they also mark the point beyond which the exercise of State sovereignty is subject to the rule of non-intervention. Moreover, borders will ordinarily demarcate whether a person finds himself in one legal sphere or the other. Accordingly, the conduct of extraterritorial border controls raises the crucial question: to what extent does the law recognise this shift in the meaning and function of the border? From this general question follows a range of questions which are as easy to posit as they are difficult to answer: To what extent may States attempt to regulate the movement of persons beyond their borders? To what extent may migrants subjected to pre-border measures still rely on safeguards applicable to regular border controls? For example, is a migrant intercepted by a Spanish patrol boat off the coast of Senegal entitled to lodge an asylum application with the Spanish authorities? And if, so, is Spain obliged to examine that application? This chapter will delve into those questions by focusing on European border policies and safeguards applying to border controls under European and international law. Due to the comprehensive nature of the issue, this paper is a selective exercise and will focus primarily on the extent to which European countries remain bound by obligations stemming from European and international law

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Alison Kesby, “The Shifting and Multiple Border and International Law”, Oxford Journal of Legal Studies 27 (2007): 101. Ibid.

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regarding the treatment of persons seeking asylum. In assessing the legitimacy of current European practices, the emphasis will further lie on controls asserted over migrants arriving by sea. From this analysis, conclusions may be drawn which are of relevance for wider categories of migrants and other forms of extraterritorial border control. In section 2, an overview is presented of strategies of extraterritorial border control which have been undertaken on both the level of EU Member States and the EU itself. Section 3 explores the extent to which Community law provides for relevant safeguards to migrants subjected to control measures beyond the European border. Section 4 examines the relevance of international refugee law for pre-border measures, focusing on the prohibition of refoulement. Section 5 then offers some remarks on the extent to which European States may be held responsible for the effects of control measures which have been ‘outsourced’ to third countries. This contribution will argue that although the Community legislative framework suffers from notorious gaps as regards the safeguards applicable to asylum seekers and other migrants subjected to extraterritorial border measures, the Refugee Convention and general human rights treaties provide a comprehensive framework for holding states accountable for human rights violations which may ensue from conducting extraterritorial controls.

2. The multiplication of Europe’s external borders European countries are certainly not the first to employ extraterritorial measures of border control. Current European policies are to a considerable extent based on experiences of traditional immigration countries, such as the United States, Canada and Australia. The United States Immigration and Nationality Act of 1952, for example, already authorised the imposition of fines and penalties on private carriers facilitating illegal entry. The interception of migrants arriving by boat – Haitian refugees crossing the Florida Strait – started as early as 1981, when President Reagan concluded an agreement with the Haitian government allowing the US Coast Guard to board Haitian vessels on the high seas and redirect them to Haiti.5 Australia’s MV Tampa-affair – the international incident around a Norwegian container ship with a cargo of 433 asylum seekers which was refused access to Australia’s territorial waters, boarded by 45 Australian Special Air Service troops and eventually diverted to Papua New Guinea – gave

5

For a historical overview, see Stephen Legomsky, “The USA and the Caribbean Interdiction Program,” International Journal of Refugee Law 18 (2006): 679–683.

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rise to the establishment of Australia’s Pacific Solution, through which boat migrants on their way to Australia were intercepted and diverted to an off shore processing center at the small island state of Nauru. The American and Australian policies have attracted a great deal of criticism, especially for insufficiently paying regard to human rights and refugee considerations.6 In the European context, developments at two levels may be discerned. At the level of the Member States, domestic immigration and border control policies are increasingly externalised. These policies include interception strategies akin to the Haitian interdiction program, aimed at preventing migrants arriving by boat from crossing the sea border illegally. Southern Member States have not only stepped up sea border controls and surveillance, but also expanded the areas in which controls are undertaken, including towards the high seas and the territorial waters of non-European countries.7 Similar strategies are discernable regarding the air border. Already in the late 1980s, countries as Germany, the United Kingdom, Belgium and the Netherlands introduced legislation providing for fines on air carriers for transporting undocumented migrants, in effect obliging airline companies to thoroughly check the identities of travelers.8 Complementing obligations imposed on air carriers, several Member States have in later years stationed immigration officers at diplomatic missions and international airports and seaports in countries known for ‘producing’ many asylum seekers.9 On the level of the European Union, the growing awareness of the existence of a common interest in controlling the Union’s external border has given rise to substantial Community activity in the sphere of external border controls. Although Member States remain responsible for controlling their own border, Community efforts to control the external border have gone beyond the mere

6

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8

9

Ibid. Also see Penelope Mathew, “Australian Refugee Protection in the Wake of the Tampa,” American Journal of International Law 96 (2002): 661–676; Ernst Willheim, “MV Tampa: The Australian Response,” International Journal of Refugee Law 15 (2003): 159–190. For an overview of forms of cooperation between European and African States, see e.g. “AfricaEurope: Illegal Immigration”, Africa Research Bulletin: Political, Social and Cultural Series 43 (2006): 16766A–16768B and Sara Hamood, “EU-Libya Cooperation on Migration: A Raw Deal for Refugees and Migrants?,”Journal of Refugee Studies 21 (2008): 19–42. For an overview, see Frances Nicholson, “Implementation of the Immigration (Carriers’ Liability) Act 1987: Privatising Immigration Functions at the Expense of International Obligations,’International and Comparative Law Quarterly 46 (1997): 586–634 (focusing mainly on the UK); and Virginie Guiraudon, “Before the EU Border: Remote Control of the ‘Huddled Masses,’ ” in In Search of Europe’s Borders, ed. Kees Groenendijk, Elespeth Guild and Paul Minderhoud (The Hague: Kluwer Law International, 2003). Sophie Scholten and Paul Minderhoud, “Regulating Immigration Control: Carrier Sanctions in the Netherlands,” European Journal of Migration Law 10 (2008): 137–140.


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laying down of common standards and the facilitation of cooperation. Unmistakably, the European Union is developing its own, supranational, strategy of combating illegal immigration. Featuring prominently in this strategy is the concept of ‘integrated border management’, described as the entire package of instruments applying to persons traveling to the EU, involving measures taken at the consulates of Member States in third countries, measures in countries of transit, measures taken within the Schengen area, and measures at the border itself.10 Amongst others, the EU’s strategy foresees in closer border management cooperation with third countries, the pooling of immigration liaison officers, the conclusion of agreements with third countries for securing repatriation and readmission, and the dispatching of EU special border advisors to third countries.11 Concrete steps have been taken in the form of the establishment of the Frontex agency – which is particularly active in coordinating pre-border controls at sea;12 the creation of a Community obligation on Member States to install carrier sanctions;13 and the creation of a network of immigration liaison officers operating in third countries.14 Further legislative proposals are under consideration, including a proposal to oblige third-country nationals not subject to a visa requirement to make an electronic application supplying, in advance of travelling, data identifying the traveller and specifying the passport and travel details.15 This data could be used for verifying that a person fulfils the entry conditions before travelling to the EU.

3. Community law and extraterritorial border control One question raised by the proliferation of extraterritorial border controls employed by European States is to what extent they remain covered by existing Community safeguards applicable to migrants presenting themselves at the ‘regular’ border. Under Article 62 en 63 EC Treaty, a comprehensive regime on 10 11

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COM (2008) 69 final, para. 1.2. “Programme of measures to combat illegal immigration across the maritime borders of the European Union”, Council doc. 13791/03 FRONT 146 COMIX 631, 21 October 2003, paras. 67, 76 and 88. For an overview, see Commission staff working paper, “Report from the Commission on the evaluation and future development of the Frontex Agency. Statistical data”, COM(2008) 67 final. Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985. Regulation EC No. 377/2004. This system is called ESTA (Electronic System of Travel Authorisation); COM(2008) 69 final, para. 4.

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border control has developed, with specific rules guaranteeing the protection of asylum seekers presenting themselves at the border. This section will explore whether these safeguards also apply to extraterritorial border controls, starting with the common rules on asylum. The territorial scope of the Common European Asylum System The EC asylum acquis provides a number of clear guarantees to asylum seekers present in the territories of the Member States, including for asylum seekers who lodge their application at the border or in the international zones of one of the Member States.16 On the specific issue of border control and asylum, the Asylum Procedures directive holds that examinations of applications lodged at the border are subject to the same principles and guarantees as are applicable to claims lodged by asylum seekers within a Member State’s territory, with the exception that “another authority” than the “determining authority” may process the application.17 This will ordinarily mean that border guards instead of the immigration service are allowed to examine the application, subject to the requirement that these border guards have appropriate knowledge or receive the necessary training in order to properly process asylum claims.18 Although the directive also allows Member States to maintain a ‘special entry procedure’ allowing for derogation from some safeguards,19 asylum seekers subject to border controls are under all circumstances entitled to have their claims processed by a competent authority and with a minimum set of procedural guarantees. Do these safeguards also hold value for persons who lodge their claim outside the territories of the Union? At first glance, the answer is negative: both Article 63 EC Treaty and the instruments adopted under that provision contain clear territorial limitations. The Dublin mechanism for establishing the Member State responsible for examining the application applies only to applications which have been lodged in one of the Member States, which includes claims lodged at the border.20 The Reception Conditions Directive only applies to reception standards provided within a Member State and only to asylum seekers who have lodged their request at the border or in the territory of a Member State.21 The Asylum Procedures Directive has a similar restriction: it applies only to standards on procedures in

16

17 18 19 20 21

See in particular Article 3(1) Dublin Regulation (EC 343/2003) and Article 3(1) Asylum Procedures Directive (2005/85/EC). See Articles 4(2)(d) and 35(1) Directive 2005/85/EC. Ibid. Article 35 (2-4) Directive 2005/85/EC. Articles 1 and 3(1) Regulation EC 343/2003. Articles 1 and 3 Directive 2003/9/EC.


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Member States and only to those applications “made in the territory, including at the border or in the transit zones of the Member States”.22 It is remarkable that with regard to qualification as refugees and subsidiary protection beneficiaries, and the content of protection granted, neither the Treaty nor the Qualification Directive contain a territorial restriction.23 It is not entirely clear what should be inferred from this absence. The original Commission proposal on which the Qualification Directive is based did contain a provision on territorial scope similar to the one inserted in the Dublin regulation and the Reception Conditions directive, but this provision was deleted, apparently because a number of Member States wanted the scope of the directive to be consistent with that of the Procedures directive and considered the issue of territorial scope a matter to be decided by the latter directive.24 This could imply that we should not assume that the Qualification Directive has a territorial scope different from the other directives. It has moreover been argued that it is (1) hardly likely that the Community legislator intended to oblige Member States to grant refugee status to persons who apply for asylum outside their territorial boundaries and that (2) the absence of a territorial restriction on the scope of the Qualification Directive would be at odds with the consistency advanced by the Common European Asylum System.25 These arguments are open to counter-arguments, however. Firstly, the drafting history of the directive does not provide conclusive evidence as to the exact motive for deletion of the original territorial delimitation.26 Secondly, it is hard to see how the assumption that the various pieces of legislation must form a coherent system can serve as argument of decisive nature, since the asylum acquis already suffers from a number of substantial inconsistencies – the issue of subsidiary protection being the most notorious. Thirdly, giving extraterritorial effect

22

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Articles 1 and 3(1) Directive 2005/85/EC. Also see Article 3(1) Directive 2005/85/EC, in which applications made at diplomatic representations are expressly excluded from the scope of the directive. The addition of ‘transit zones’ is in conformity with Amuur judgment, where the ECtHR stated that the European Convention on Human Rights and Fundamental Freedoms (ECHR) fully applies in transit zones and that the latter should be considered as an integral part of a state’s territory: ECtHR 10 June 1996, Amuur v. France, Application No. 19776/92. See Article 63(1)(b) and (2)(a) EC Treaty and Article 1 (on ‘subject matter and scope’) of Directive 2004/83/EC. COM(2001) 510 final, Article 3; for the Council discussions, see Council doc. 7882/02, 24 April 2002, p. 5. Hemme Battjes, European Asylum Law and International Law (Leiden/Boston: Martinus Nijhoff, 2006), 209-210. Four delegations had suggested deleting the provision on territorial scope (see n 28). In September 2002, the provision was deleted without further reasons stated, see Council doc. 12199/02, 25 September 2002, p. 6.

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to the Qualification Directive does not mean that Member States would be obliged to grant refugee or subsidiary protection status when confronted with persons who apply for asylum outside their territories. Unlike the Dublin Regulation and the Procedures Directive, the Qualification Directive does not contain an obligation to accept and examine asylum applications.27 This means that an interpretation is also possible that, although asylum seekers outside the territories of Member States cannot infer from the Qualification Directive a right to have their application processed, should a Member State decide to process applications extraterritorially, it is bound to adhere to the standards in the Qualification Directive. But even if a broad territorial scope of the Qualification Directive were accepted, it is hard to see how the Directive could bring asylum seekers under the umbrella of Community asylum legislation if Member States are merely engaged in border controls without providing for extraterritorial status determination. In response to the Commission’s Green Paper on the future of the Common European Asylum System, the UNHCR concluded that interception and migration control measures could therefore impede access to the Common European Asylum System and called upon the EU to make an explicit commitment to protection-sensitive border management.28 Amongst others, UNHCR has suggested the adoption of a new EU legal instrument which clearly outlines Member States’ protection responsibilities when their vessels intercept or rescue persons at sea. Another suggestion has been to amend section V of the Procedures Directive (on border procedures) to the effect that the safeguards of the asylum acquis are similarly applicable to extra-territorial border procedures.29 Such an amendment would be in line with Article 6(5) of the Directive which obliges Member States to ensure that authorities likely to be addressed by asylum applicants are able to advise that person and/or forward the application to the competent authority. The territorial scope of the borders acquis The legal basis for adopting EC rules on external border controls is provided by Article 62(2)(a) EC Treaty, which speaks of measures on the crossing of external 27

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The most express obligation to examine asylum applications is provided by Article 3 (1) Regulation EC 343/2003 (Dublin Regulation); the asylum procedures directive makes clear that its provisions must be applied to all applications lodged in the territories, at the border or in the transit zones of Member States, see Article 3 (1) Directive 2005/85/EC. UNHCR, “Response to the European Commission’s Green Paper on the Future Common European Asylum System”, Brussels/Geneva, September 2007, p. 46. Standing committee of experts on international immigration, refugee and criminal law, “Note on the Green Paper on the future Common European Asylum System as presented by the Commission of the European Communities”, Utrecht, 27 September 2007, par. 5.3.


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borders establishing “standards and procedures to be followed in carrying out checks on persons at such borders”. The standards and procedures are primarily laid down in the Schengen Borders Code, which entered into force on 13 October 2006 and simplified and updated a complex set of rules on border movement which had developed under the Schengen Convention.30 The Borders Code provides a number of important safeguards for persons refused entry at the EU’s external border. Refusals of entry must be substantiated and in writing and must be made by a competent authority. Persons refused must have the right to appeal and must be informed about the avenues to pursue such an appeal.31 With regard to asylum, the Borders Code contains a number of provisions explicitly guaranteeing that border controls may not jeopardise the right of asylum as laid down in EC asylum legislation, or the right to international protection stemming from Member States’ international obligations.32 In practical terms, this means, firstly, that if asylum seekers do not meet the cumulative list of conditions for entry as provided by the Borders Code, border guards may nevertheless not refuse entry if those persons apply for asylum.33 Secondly, all border control activities must comply with international obligations entered into by Contracting States, which obviously includes obligations stemming from the Refugee Convention and other human rights treaties. Do the safeguards of the Borders Code also apply to extraterritorial controls? Both Article 62 EC Treaty and the Borders Code speak of controls carried out at the external border.34 Some authors have argued that the Code only covers checks carried out in the immediate vicinity of the border and that extraterritorial controls fall outside the scope of the Borders Code.35 A number of definitions laid

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Regulation EC No. 562/2006. See Article 13 (2-3) and Part A of Annex V Regulation EC No. 562/2006. Article 3(b) holds that the Borders Code applies without prejudice to “the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.” Article 13 (1) holds that refusal of entry “shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection.” Article 5(4)(c) moreover allows for derogation of the entry conditions on humanitarian grounds or because of international obligations. But see Steve Peers, Revising EU Border Control Rules: A Missed Opportunity? (London: Statewatch, 6 June 2005, available at http://www.statewatch.org/news/2005/jun/eu-bordercode-analysis.pdf, accessed 4 November 2009), who expresses reservations as to whether the Borders Code must be interpreted as meaning that asylum seekers may not be refused entry and considers it preferable to set out this obligation more clearly. See Article 62 (2)(a) EC Treaty and Article 2(9) Regulation EC No. 562/2006. Jorrit Rijpma and Marise Cremona, The Extra-Territorialisation of EU Migration Policies and the Rule of Law, (Florence: EUI Working Papers LAW No. 2007/01), 23. Referring to various oral and written evidence, the House of Lords concluded that the Schengen Borders Code “applies

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down in Article 2 of the Borders Code seem to support that assumption. Article 2(2) defines external borders as “the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders”. Border checks, moreover, are defined as “checks carried out at border crossing points”, and border guards are defined as public officials who are assigned “to a border crossing point or along the border, or in the immediate vicinity of that border”.36 Further, Article 3 of the Code limits its scope to persons crossing the internal or external borders. It is notable, on the other hand, that the Borders Code covers a wide variety of border control strategies, including checks and surveillances which do not take place in the immediate vicinity of the geographical border. With regard to rail traffic for example, Annex VI of the Borders Code mentions checks carried out during transit on board the train, checks carried out in stations in another country; or checks in stations where persons disembark within the territory of a Member State.37 Interestingly, London Waterloo Station is listed as an authorised French border crossing point, and Gare de Bruxelles-Midi is regarded as part of the Belgian land border.38 With regard to air traffic, the Code provides similar flexibility – such as the possibility to carry out checks on an aircraft or at the gate;39 or at airports which do not hold the status of international airports.40 Regarding sea border controls, the Borders Code appears to go even further in laying down a general competence to conduct checks on the high seas or in ports of third countries. Paragraph 3.1.1. of Annex VI of the Borders Code (on general checking procedures on maritime traffic) stipulates that: Checks on ships shall be carried out at the port of arrival or departure, on board ship or in an area set aside for the purpose, located in the immediate vicinity of the vessel. However, in accordance with the agreements reached on the matter, checks may also be carried out during crossings or, upon the ship’s arrival or departure, in the territory of a third country.41

There is, unmistakably, a certain discrepancy between the definitional provisions of the Borders Code – which may be taken to reflect a narrow geographical understanding of the external border – and the scope of activities covered by the

36 37 38 39 40 41

within the territorial waters of Member States but not extra-territorially, and hence not on the high seas – still less in the territorial waters of third states”; House of Lords Select Committee on European Union, FRONTEX: the EU External Borders Agency, 5 March 2008, para. 143. Articles 2 (10) and 2 (13) Regulation EC No. 562/2006. Annex VI, Paragraph 1.2. Regulation EC No. 562/2006. COM(2004) 391 final, Annex I (‘Authorised border crossing points’). Annex VI, Paragraph 2.1.3. Regulation EC No. 562/2006. See Annex VI, Paragraphs 2.1.4. and 2.2.1 Regulation EC No. 562/2006. Annex VI, Paragraph 3.1.1. Regulation EC No. 562/2006.


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Code – which are much broader and extend to measures of extraterritorial control. This latter finding does not come completely as a surprise. The power to conduct extraterritorial checks and surveillance resonates with the concept of integrated border management and corresponds with current strategies of preborder control employed by individual Member States. And because one of the primary aims of the Borders Code is to provide a ‘common corpus’ of legislation applicable to external border controls,42 it makes sense that the Code recognises and arranges for the undertaking of extraterritorial controls. This discrepancy does raise problems of interpretation. To mention one example: while border checks may apparently be carried out on ships in third countries or during crossings (Article 3.1.1. Annex VI); ‘border guards’ can according to Article 2 (13) of the Borders Code only be people who are assigned “to a border crossing point or along the border or the immediate vicinity of that border”. Does that mean that a port in a third country can also be defined as a ‘border crossing point’? Or does it mean that border checks may also be carried out by other persons than border guards? If it is accepted that extraterritorial checks can properly be brought under the scope of the Code, does that also mean that negative decisions resulting from these checks amount to a ‘refusal of entry to the territories of the Member States’ in the sense of Article 13 (1) of the Code – thereby triggering a range of safeguards? One obvious way to ensure that extraterritorial controls are not employed as a means to circumvent the border regime laid down in the Schengen Borders Code is not to rely too heavily on a narrow geographical notion of border controls. This would imply that it must not automatically be excluded that extraterritorial measures can indeed be brought under the scope of the Code and that safeguards applicable to regular controls can, in principle, also apply to extraterritorial controls. An argument in favor of such an approach is not only that the Code itself recognises the existence of forms of pre-border control, but also that the Schengen Borders Code not only connects border controls to a geographical notion of the external border but moreover provides a functional description of the core concepts relating to border controls. Article 9 (2) defines ‘border control’ as an activity carried out in accordance with and for the purposes of the Regulation, in response exclusively to an intention to cross or the act of crossing the border, consisting of border checks and border surveillance.43 Border checks are those activities which ensure that only those persons fulfilling the entry conditions cross the border.44 Border surveillance

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See in particular recital 4 Regulation EC 562/2006. Article 2(9), emphasis added. See Articles 2(10) and 7.

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is defined as serving the purpose of preventing persons from circumventing border checks.45 And border guards are defined as public officials carrying out border control tasks. Accordingly, these functional definitions could be used to establish whether particular activities taking place beyond the border can be labeled as border checks or border surveillance and whether ‘quasi’-border guards should be defined as border guards proper. Subsequently, these definitional exercises could be instrumental in establishing the extent of safeguards to be adhered to in subjecting migrants to border measures. Putting emphasis on a functional rather than geographical definition of border controls to delimit the scope of the Code brings a number of advantages. It does away with a territorial bias which is incongruent with current practices of border controls; it provides a workable alternative for not overstretching the scope of the Code; and it succeeds in the creation of a common corpus applicable to all border controls – thus preventing the emergence of a lacuna in Community law. It replaces the question ‘where do border guards operate?’ with the question whether activities can be labeled as border control activities as defined in the Borders Code. Since border controls are defined as exclusively relating to actual or intended crossings of the external border, policies relating to persons who are not yet on the move – such as procedures on the issue of visa – could be construed as not falling under the scope of the Code.46 Although this approach would probably not guarantee that all pre-border measures which are currently undertaken can be brought under the scope of the Code, it would go some way in preventing the occurrence of a protection gap with regard to pre-border activities under Community law.

4. International refugee law and extraterritorial border control A second level of constraints for European countries involved in forms of preborder control is the level of international law. Regarding the treatment beyond the border of persons seeking asylum, the first key question concerns the extraterritorial applicability of refugee and human rights law and in particular the territorial scope of the prohibition of refoulement, laid down in, inter alia, Article

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Articles 2(11) and 12. The ECJ adopted a similar ‘functional’ approach to the term external borders in case C-170/96, where it stated that former Article 100c EC Treaty, providing for rules on the possession of visa when crossing the external borders, only applies to measures “in so far as they relate to the entry and movement within the internal market”, and accordingly not to airport transit visa since the latter do not authorise the holder to move within the territory of a Member State. ECJ 5 February 1998, Commission v Council, C-170/96, paras. 21–26.


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33 (1) Refugee Convention and Article 3 ECHR. Since the question of territorial scope of human rights treaties in general is addressed more extensively elsewhere in this book,47 this section focuses primarily on the extraterritorial potential of the Refugee Convention. Because it has become such a topical issue, this section will also address the question of how to make operational the obligation of non-refoulement in extraterritorial situations, in particular in the context of border controls at sea. Extraterritorial application of the Refugee Convention It is undisputed that the prohibition of refoulement laid down in Article 33(1) of the Refugee Convention can only be invoked by persons who are outside their country of origin, since the term ‘refugee’ only applies to persons who are outside the country of their nationality.48 It is also clear that the prohibition of refoulement in the Refugee Convention applies to all refugees present on a Contracting State’s territory. Between those territorial extremes, applicability of the Convention remains obscure. Although the UNHCR position is that the prohibition of refoulement applies wherever a State operates – including at the frontier, on the high seas or on the territory of another State49 – in two pertinent judgments delivered on the issue, the US Supreme Court and the House of Lords have denied the extraterritorial applicability of the prohibition of refoulement.50 In Sale v. Haitian Centers Council, the US Supreme Court concluded that the text of Article 33 makes clear that it does not govern State Parties’ conduct outside their national borders, an interpretation which in the Court’s view is confirmed by the negotiating history of the Convention.51 Accordingly, the US interception of vessels transporting Haitians outside US territorial waters, and 47 48

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See the contribution by Anja Klug and Tim Howe to this volume. Article 1 (A)(2) Convention Relating to the Status of Refugees, 1989 UNTS 137 (28 July 1951). According to the UNHCR Handbook: “It is a general requirement for refugee status that an applicant who has a nationality be outside the country of his nationality. There are no exceptions to this rule. International protection cannot come into play as long as a person is within the territorial jurisdiction of his home country.”, UN Doc. HCR/IP/4/Eng/REV.1, UNHCR Geneva, reedited January 1992, para. 88. UNHCR, “Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of refugees and its 1967 Protocol”, Geneva, 26 January 2007, para. 43; UNHCR, EXCOM, “Interception of Asylum-Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach”, UN Doc. EC/50/SC/CRP.17, 9 June 2000, para. 23. US Supreme Court, Sale v. Haitian Centers Council, 509 US 155, 162 (1993); House of Lords, Regina v. Immigration Officer at Prague Airport and another ex parte European Roma Rights Centre and others, [2004] UKHL 55. Sale, p. 184.

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their return to Haiti without prior screening for refugees, was held not to be covered by the Refugee Convention. The judgment was roundly criticised as a “case not lost in the legal but the political arena”,52 as an “eccentric, highly implausible interpretation of a treaty”53 and was considered by the UNCHR “a setback to modern international refugee law’ and “a very unfortunate example”.54 The InterAmerican Human Rights Commission did not follow the Supreme Court’s decision and concluded that Article 33 Refugee Convention has no territorial limitations and that the US interdiction of Haitians violated the Refugee Convention.55 In 2004, in a case dealing with British immigration officers temporarily stationed at Prague Airport who refused six Czech nationals of Roma origin leave to enter the United Kingdom, the House of Lords concurred with the Supreme Court’s reasoning and concluded that the Convention lacks any provision requiring a State to abstain from controlling the movements of people outside its borders.56 In denying extraterritorial applicability of Article 33, the US Supreme Court and the House Lords relied essentially on two arguments: a textual interpretation and the Convention’s negotiating history. Leaving other arguments aside,57 it is submitted hereunder that both decisions rely on a doubtful interpretation of the meaning of the term ‘refouler’ and a rather ambiguous reading of the travaux préparatoires. In ascertaining the territorial scope of State obligations under Article 33(1), both Courts addressed at length the appropriate meaning of the words ‘expel or return (“refouler”)’. While the word ‘expel’ is generally understood as denoting 52

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Harold Koh, “Reflections on Refoulement and Haitian Centers Council”, Harvard Internatinal Law Journal 35 (1994): 20. Louis Henkin, “Notes from the President”, ASIL Newsletter, September-October 1993, p. 1. As US member of the Ad Hoc Committee on Statelessness and Related Problems, Louis Henkin had taken part in the drafting of the 1951 Convention. UNHCR EXCOM, “UN High Commissioner for Refugees Responds to US Supreme Court Decision in Sale v Haitian Centers Council” (released 22 June 1993), excerpts published in ILM 32(1993): 1215. For further commentary see e.g. Legomsky (n 5), 686–691. Inter-American Commission for Human Rights, 13 March 1997, The Haitian Centre for Human Rights et al. v. United States, Case 10.675, Report No. 51/96. Roma Rights (n 50); see in particular paras. 17–31, 64–71. The Supreme Court further used a contextual argument by noting that paragraph 2 of Article 33 Refugee Convention speaks of a refugee who is a danger to the security “of the country in which he is”, from which it would logically follow that Article 33 paragraph 1 was meant to apply only to refugees present in a Contracting State’s territory; (n 50), 180. For an extensive appraisal of the Sale decision, see further e.g. Legomsky (n 5), pp. 687–691; Guy Goodwin-Gill, “The Haitian Refoulement Case: A Comment”, International Journal of Refugee Law 5 (1994):103– 110; also see the dissent of Justice Blackmun in Sale (n 50), 190–199.


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the deportation of aliens who have already been admitted to a country and clearly does not cover the act of interdiction,58 discord arises with regard to the verb ‘return’. In line with Article 31(4) of the Vienna Convention on the Law of Treaties – holding that a special meaning shall be given to a term if it is established that the parties so intended – the Supreme Court referred to the parenthetical reference in Article 33(1) to the French verb “refouler” and concluded that “return” has a legal meaning narrower than its common meaning. It indeed appears from the drafting history that the word ‘refouler’ was inserted in brackets in the English text to make clear that the word ‘return’ has no different meaning than the French term ‘refouler’.59 Since the French word ‘refouler’ is commonly translated as to ‘repulse’, ‘repel’ or ‘drive back’, the US Supreme Court understood the word return to mean a “defensive act of resistance or exclusion at a border, rather than an act of transporting someone to a particular destination”.60 An interpretation which includes exclusion at the border appears valid. With regard to the ordinary meaning of the term ‘refouler’, Grahl-Madsen has explained: The word “refoulement” is used in Belgium and France to describe a more informal way of removing a person from the territory and also to describe non-admittance at the frontier. It may be applied to persons seeking admission, persons illegally present in a country, and persons admitted temporarily or conditionally, in the latter case, however, only if the conditions of their stay have been violated.61

The statement that refoulement includes exclusion at the frontier is supported by the 1933 Refugee Convention, where the word refoulement in the official French text was translated as “non-admittance at the frontier”.62 It was further expressly

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It seems that we can still subscribe the view of Grahl-Madsen, that “the term ‘expulsion’ refers to a formal measure which is used against aliens who have so far been lawfully staying in the country”: Atle Grahl-Madsen, Commentary of the Refugee Convention 1951 (1963, re-published by UNHCR, Geneva, 1997), p. 136. Also see Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford: Oxford University Press, 2007), 206. In one of the last sessions of the conference of plenipotentiaries, the United Kingdom delegate had remarked that the Style Committee had considered that the word return was the nearest equivalent in English to the French word ‘refoulement’, from which the delegate deduced that the word ‘return’ had no wider meaning than the French term ‘refouler’. Upon this remark, the president had proposed to insert the French word ‘refouler’ in brackets in the English text, as had also been done in the (unofficial) English translation of the 1933 Convention relating to the International Status of Refugees. Statements of Mr. Hoare from the United Kingdom and Mr. Larsen (President), UN Doc. A/CONF.2/SR.35, pp. 21–22. Sale (n 50), 181–182. Grahl-Madsen (n 73), p. 136. Convention relating to the International Status of Refugees, signed 28 October 1933, League of Nations Treaty Series 159/3663, Article 3. The French version speaks of ‘ne pas éloigner de son

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stated during the drafting of the 1951 Convention that the practice of ‘refouler’ – unknown to English-speaking countries – consisted of non-admittance orders enacted by police measures.63 As regards the question whether it also applies to measures beyond the border, the problem in the Supreme Court’s reasoning is that it defines the ordinary meaning of the term ‘refouler’ not merely by referring to its literary connotation, but by additionally noting that ‘refoulement’ is not known to apply to practices beyond the border. This is however simply reflective of the empirical reality that no country had ever attempted to deter refugees outside its borders from which it not automatically follows that the term ‘refouler’ cannot be used to describe such practices.64 Indeed, it does not appear from the French dictionary that ‘refouler’ has any geographical connotation.65 This point was also addressed by the dissent in Sale: I am at a loss to find the narrow notion of “exclusion at a border” in broad terms like “repulse,” “repel,” and “drive back.” Gage was repulsed (initially) at Bunker Hill. Lee was repelled at Gettysburg. Rommel was driven back across North Africa. The majority’s puzzling progression (“refouler” means repel or drive back; therefore “return” means only exclude at a border; therefore the treaty does not apply) hardly justifies a departure from the path of ordinary meaning. The text of Article 33.1 is clear, and whether the operative term is “return” or “refouler,” it prohibits the Government’s actions.66

In defending a narrow interpretation of the words ‘return’ and ‘refouler’, the House of Lords and Supreme Court further referred to early commentaries to the Convention and statements made during the Convention’s drafting history.

territoire par application de mesures de police, telles que l’expulsion ou le refoulement, les refugiés ayant été autorisés à y sojourner régulièrement (…)’. Lord Bingham of Cornhill, referring to the commentary of Grahl-Madsen, concludes that the word ‘refouler’ in the 1933 Convention was not used to mean “refuse entry”: Roma Rights (n 73), para. 13. This appears to be a misreading: the 1933 Convention expressly restricts applicability of the prohibition of refoulement to refugees who have been authorised to reside regularly, implying that refoulement is not necessarily restricted to those already admitted entry. 63 Statements of Mr. Giraud (Secretariat) and Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.21 (2 February 1950), paras. 14–15; Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/ SR.20 (1 February 1950), para. 47. 64 James Hathaway, The Rights of Refugees under International Law, (Cambridge: Cambridge University Press, 2005), 337. 65 The Cambridge Klett Compact Dictionary (2003) gives the following translation: 1. (repousser: attaque, envahisseur) to push back; (foule) to drive back; (intrus) to turn back; (demande) to reject 2. (réprimer) to hold back; ~ sa colère to keep one’s anger in check; (pulsion) to repress; (souvenir) to suppress; (larmes) to choke back. 66 Sale (n 50), 193.


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In practice, these references come down to a single argument, since the commentaries referred to were themselves based on the drafting history.67 The Supreme Court referred to contributions made by the Swiss and Dutch delegates, which had both expressed the view that the provision on non-refoulement should apply only to those who are already admitted into a country (‘expel’) and those who are already within a country but not yet resident there (‘return’).68 The Dutch delegate had stated that he had gathered that the general consensus of opinion was in favor of this interpretation.69 If we take the statements of the Dutch delegate to be correct, this would mean that the Supreme Court’s observation that ‘return’ must be understood as applying inter alia to exclusion at the border is also to be rejected. The Swiss and Dutch statements have not been without ramifications. Not only were they relied upon by the Supreme Court to deny extraterritorial effect to Article 33; the commentaries of Robinson and Grahl-Madsen, long taken as authorative – and on which both the Supreme Court and the House of Lords relied upon in their textual interpretation of the word ‘return’ – denied extraterritorial applicability of the Convention by referring precisely to these statements.70

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See references in Sale (n 50), 183, footnote 40; and Prague airport (n 50), paras. 17, 70 to Nehemiah Robinson, Convention Relating to the Status of Refugees, Its History, Contents and Interpretation (New York: Institute of Jewish Affairs, 1953), 162-163; Atle Grahl-Madsen, The Status of Refugees in International Law (Leiden: Sijthoff, 1972), 94; Paul Weis, The Refugee Convention 1951: The Travaux Préparatoires Analysed with a Commentary, (Cambridge: Cambridge University Press, 1995), 123–124. Sale (n 50), 185–186. For the statements of the Swiss and Dutch delegates, see UN Docs. A/CONF.2/SR.16, p. 6 (11 July 1951) and A/CONF.2/SR.35 (25 July 1951), pp. 21–22. Robinson (n 82), and Grahl-Madsen (n 73). It is worth noting how Grahl-Madsen grapples with the peculiar results of his own narrow territorial approach: “And if the frontier control post is at some distance (a yard, a hundred meters) from the actual frontier, so that anyone approaching the frontier control point is actually in the country, he may be refused permission to proceed farther inland, but he must be allowed to stay in the bit of the territory which is situated between the actual frontier line and the control post, because any other course of action would mean a violation of Article 33 (1).” In an effort to explain why these results – which Grahl-Madsen admits may seem strange from a logical point of view – are nonetheless not devoid of merit, Grahl-Madsen continues by giving an even more bewildering statement: “It must be remembered that the Refugee Convention to a certain extent is a result of the pressure by humanitarian interested persons on Governments, and that public opinion is apt to concern itself much more with the individual who has set foot on the nation’s territory and thus is within the power of the national authorities, than with people only seen as shadows or moving figures “at the other side of the fence.” The latter have not materialized as human beings [sic], and it is much easier to shed responsibility for a mass of unknown people than for the individual whose fate one has to decide.” Ibid., p. 137.

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There are two reasons to treat the delegates’ remarks with caution. First, the declarations made by the Swiss and Dutch appear to have been instigated by a fear that Contracting States would be compelled to allow mass migrations across their frontiers.71 Indeed, the Dutch delegate had only wished “to have it placed on the record that the Conference was in agreement with the interpretation that the possibility of mass migration across frontiers or of attempted mass migrations was not covered by article 33”, to which no objections were made.72 Accordingly, the only interpretation placed on the record was that Article 33(1) was considered not to cover mass migrations – not that return only applies to those already within a country but not resident there. A further reason for caution is that the rather isolated comments of the two delegates were in sharp contrast to the views on this particular issue taken by the Ad Hoc Committee on Statelessness and Related Problems, which prepared the draft text forwarded for adoption to the Conference of Plenipotentiaries. The Ad Hoc Committee had extensively debated the provision laying down the principle of non-refoulement and had achieved consensus on the substance of the obligation. In discussing differences in State practice as regards deportation and nonadmission, the US delegate had stated that the Convention ought to apply to persons who asked to enter the territory of the contracting parties and that “[w] hether it was a question of closing the frontier to a refugee who asked admittance, or of turning him back after he had crossed the frontier, or even of expelling him after he had been admitted to residence in the territory, the problem was more or less the same.”73 The Israeli delegate confirmed this view by declaring that “[t]he Article must, in fact, apply to all refugees, whether or not they were admitted to residence; it must deal with both expulsion and non-admittance, and must grant to all refugees the guarantees provided in the draft (…).”74

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Mr. Zutter, the Swiss delegate had remarked that Switzerland would only be willing to accept the provision on non-refoulement if the other delegates accepted his interpretation that the word return applied solely to refugees who had already entered a country but were not yet resident there and that ‘[a]ccording to that interpretation, States were not compelled to allow large groups of persons claiming refugee status to cross its frontiers.’ Statement of Mr. Zutter from Switzerland, UN Doc. A/CONF.2/SR.16, p. 6 (11 July 1951). The Dutch delegate similarly communicated: “Article 28 [current Article 33 – MdH] would not have involved any obligations in the possible case of mass migrations across frontiers or attempted mass migrations.” And: “The Netherlands could not accept any legal obligations in respect of large groups of refugees seeking access to its territory.” Statements of Baron van Boetzelaer of the Netherlands, A/CONF.2/SR.35 (25 July 1951), pp. 21–22. Statement of Baron van Boetzelaer of the Netherlands, ibid. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.20, 1 February 1950, paras. 54–56. Statement of Mr. Robinson of Israel, ibid., para. 60.


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The Belgian delegate explained that “the term ‘expulsion’ was used when the refugee concerned had committed some criminal offence, whereas the term ‘refoulement’ was used in cases when the refugee was deported or refused admittance because his presence in the country was considered undesirable.”75 The UK delegate concluded that the notion of ‘refoulement’ could apply to (1) refugees seeking admission, (2) refugees illegally present in a country, and (3) refugees admitted temporarily or conditionally.’76 Suspending the discussion, the chairman tellingly observed that ‘it had indicated agreement on the principle that refugees fleeing from persecution should not be pushed back into the arms of their persecutors’.77 Although one could contend that in using the travaux as means of treaty interpretation greater weight should be accorded to declarations made during the Conference on Plenipotentiaries than in the Ad Hoc Committee, the unequivocal and concerted nature of statements made in the latter undermines the House of Lords’ observation that the travaux préparatoires yield ‘a clear and authorative’ answer to the question of territorial scope of Article 33.78 It is regrettable that, while relying heavily on the travaux, the House of Lords and US Supreme Court failed to take note of these earlier discussions.79 In short, it is unsurprising that the judgments rendered in Sale and the Roma Rights case have attracted considerable criticism. Not only do neither the text nor the drafting history of Article 33 provide unequivocal suggestions as to a limited territorial application, but such a narrow reading also contrasts with the generally accepted notion under human rights law that treaty obligations are not necessarily confined to the territories of Contracting States. The relevant treaty monitoring bodies as well as the International Court of Justice have recognised that human rights treaties bind States with regard to persons in foreign territories who can be considered to fall within the jurisdiction of that State.80 Although the

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Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.21, 2 February 1950, para. 15. Statement of Sir Leslie Brass of the United Kingdom, ibid., para. 16. Statement of Mr. Leslie Chance of Canada, ibid., para. 26. Roma Rights (n 50), para. 17. It remains unclear why no weight was accorded to those earlier proceedings. In its letter amicus curiae to the Supreme Court in Sale, UNHCR did refer to statements made in the Ad Hoc Committee: Office of the United Nations High Commissioner for Refugees, “The Haitian Interdiction Case 1993, Brief amicus curiae”, printed in International Journal of Refugee Law 6 (1994): 100. E.g. ECtHR 23 March 1995, Loizidou v Turkey, appl. 15318/89 (preliminary objections), para. 62; HRC 29 July 1981, Celiberti de Caseriego v Uruguay, Com. No. 56/1979, para. 10; InterAmerican Court of Human Rights 29 September 1999, Coard et al. v United States, Case No. 10.951/Report No. 109/99, para. 37; ICJ 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, paras. 107-113

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circumstances under which that is the case give rise to continuing controversy and the criteria applied by the international courts are not necessarily consistent, it appears that being within the effective control or authority of a State is the appropriate criterion for engaging the responsibility of extraterritorially acting States.81 Such acts on foreign soil as apprehension, detention, the refusal to issue a passport or visa and the launching of air-to-air missiles have all been accepted as bringing victims within the jurisdiction of the acting State.82 Non-refoulement obligations arising out of interception at sea Positing that the prohibition of refoulement does apply extraterritorially does not automatically mean that all refugees made subject to extraterritorial border controls must be admitted entry into the territory of the controlling State. Especially in the context of controls at sea, it may not always be straightforward to identify the precise scope of a State’s obligations towards refugees who are intercepted or rescued. A first complication for deriving a duty of admittance from the prohibition of refoulement in sea controls is that it must be established that by refusing a person further passage, that person is put at risk of exposure to some form of maltreatment. While it will normally not be possible for States wishing to close its borders to return asylum seekers to their country of origin or to a third country if that country is not willing to accept them and therefore be de facto obliged to at least provide temporary refuge, with regard to closing the sea border a third option is theoretically available: to force refugees back to open sea.83 Denial of entry or forcible return to the high seas is not necessarily at variance with the prohibition of refoulement. However, two important reservations must be made. First, refusal of further passage may result in indirect refoulement if the migrant

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(dealing with applicability of the ICCPR, ICESCR and the Convention on the Rights of the Child to the occupied Palestinian territories). See the various contributions in Extraterritorial Application of Human Rights Treaties, eds Fons. Coomans and Menno Kamminga (Antwerp: Intersentia, 2004). HRC 23 March 1982, Vidal Martins v. Uruguay, Communication No. 57/1979, par. 7 (passport); HRC 31 March 1983, Montero v. Uruguay, Communication No. 106/1981, par. 5 (passport); ECtHR 20 October 2005, Haydarie a.o. v the Netherlands, Appl. 8876/04 (visa) ECtHR 12 May 2005, Öcalan v Turkey, Appl. 46221/99 (Grand Chamber), par. 91 (apprehension); HRC 29 July 1981, Celiberti de Caseriego v Uruguay, Com. No. 56/1979, par. 10 (apprehension and detention); HRC 29 July 1981, Lopez Burgos v Uruguay, Com. No. R.12/52, par. 12 (apprehension and detention); Inter-American Commission on Human Rights 29 September 1999, Alejandre a.o. v Cuba, Report. No. 86/99, par. 25 (air-to-air missiles). James Pugash, “The Dilemma of the Sea Refugee: Rescue Without Refuge”, Harvard International Law Journal 18 (1977): 594.


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vessel has no other option than to return to a country where the life or freedom of its passengers are in danger or where the principle of non-refoulement is not respected. For example, Italy has been criticised for engaging in joint border control operations with Libya, since such patrols could result in Italian border guards coercing refugees to return to the doubtful guardianship of the Libyan authorities.84 Secondly, forcing ships back to open sea may result in refugees in orbit. While sending refugees ‘into orbit’ is in itself not illegal,85 the prospect of having migrants adrift in unseaworthy vessels with no country willing to accept them and while possibly lacking food, water, medicine or gasoline supplies, could very well imply that refugees are knowingly exposed to inhuman treatment or worse. This means that a State may be under a positive obligation to allow entry to the vessel or at the least to render assistance if not to do so would put the lives of the passengers in danger. This duty also follows from international maritime law if the vessel or its passengers can be considered to be in distress.86 Accordingly, States employing policies of non-entrée at sea are under a special responsibility if faced with ships carrying either (1) migrants whose wellbeing is not guaranteed or (2) migrants who claim to be refugees. Any actions taken with regard to such vessels must take due account of refugee considerations and/or the dangers of the sea. A second complication for making the prohibition of refoulement operational at sea is that interception measures can take various forms. While such practices as the boarding of a ship or the puncturing of rubber dinghies can presumably be construed as bringing the passengers within the control and thereby the jurisdiction of the acting State;87 this may be less obvious when migrant ships are merely escorted; its captain and/or passengers are addressed by megaphones; or when the migrant vessel is in some other way dissuaded from further passage without

84

85

86

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On EU-Libya relations and their impact on refugee rights, see Sara Hamood, “EU-Libya Cooperation on Migration: A Raw Deal for Refugees and Migrants?”, 21 Journal of Refugee Studies No. 1 (2008), pp. 19-42. Human Rights Watch has extensively documented the treatment of refugees and asylum-seekers in Libya, see: Human Rights Watch, Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees (Volume 18, No. 5(E), September 2006). On refugees in orbit, see Atle Grahl-Madsen, Territorial Asylum, (Stockholm: Almqvist and Wiksell International, 1980), Appendix II (‘Refugees in Orbit: Some Constructive Proposals’), 95–101. The SAR Convention defines a distress phase as “a situation wherein there is a reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance”. SAR, annex, par. 1.3.13. For a critical review of the right of refuge for ships in distress see Aldo Chircop, “Ships in Distress, Environmental Threats to Coastal States, and Places of Refuge: New Directions for an Ancien Regime?”, Ocean Development and International Law 33 (2002): 207–221. ECtHR 11 January 2001, Xhavara a.o. v Italy and Albania, Appl. 39473/98.

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the ship being entered. Establishing a sufficiently close ‘jurisdictional link’ for enlivening human rights obligations on the side of the controlling State may be even more difficult when border patrols are conducted jointly with other States, or when control tasks are outsourced altogether.88 And yet another issue which has in practice caused reluctance on the side of States to take serious the prohibition of refoulement in interception or rescue operations is that refugees often travel in mixed flows with other migrants, rendering their status as refugees both politically and legally invisible. Illustrative in this regard, is the disclaimer of the applicability of refugee law to migrants intercepted at sea put forward by the Director of the EU’s borders agency Frontex, who simply noted: “Flüchtlinge? Das sind keine Flüchtlinge, sondern illegale Migranten.” 89 That the status of refugees may not be immediately recognisable because they travel in larger groups does however not diminish a State’s duties under refugee law. Firstly, it has become increasingly clear that many of the migrants who do reach European shores apply for asylum, from which we may infer that there are refugees amongst the migrants who are intercepted.90 And secondly, it is commonly accepted that a person who may be a refugee must be treated as such until he is determined not to qualify as refugee.91 These two points preclude the taking of interception measures whereby migrants are refused further passage simply on the assumption that they are no refugees or have flight alternatives available. Such an assumption needs to be substantiated for a nonadmission order to be in conformity with the prohibition of refoulement. Practically, this raises the important obligation of States to somehow allow those who may be refugees access to a status determination procedure during which some form of temporary protection is provided. Practically, it is hard to see how such status determination can be conducted without allowing asylum claimants access to a facility properly equipped to carry out the determination.

5. State responsibility for outsourcing border controls What is called the ‘externalisation’ of European border policies entails both the geographical relocation of border controls (to the open seas and the territories of third countries) and the transfer (or sharing) of responsibilities for controlling

88 89 90

91

See section 5. ‘Frontex ist ein Sündenbock’, Der Standard 21 December 2006. This appears also to have been acknowled by the Frontex agency, see eg Frontex press release 17 February 2009, ‘HERA 2008 and NAUTILUS 2008 Statistics’. UNHCR Handbook (n 52), para. 28.


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the border to (with) States at the other side of the border. This section will address the circumstances under which European States cooperating with third States in controlling the border can be held responsible for conduct which might violate refugee and other human rights. Cooperation with third countries in controlling the border has various forms. Spain has donated patrol boats to several African countries; Italy has trained Libyan border guards; and police and immigration officers are frequently exchanged. Most far-reaching is undoubtedly the launch of joint missions of border patrol, in which African border guards are stationed on European patrol boats. It appears from the objectives laid down in the operational plans of one of those operations (Hera III), drawn up by the Frontex agency, that in these operations European vessels are used as a platform enabling the African authorities to undertake interception measures: – Carry out an optimal maritime and aerial surveillance of the waters close to Mauritania and Senegal, with the authorization of the Mauritanian and Senegalese authorities, carrying onboard the E.U. vessels personnel from these countries that are the responsible of the operations and are the people that must send back the immigrants to the national authorities in the coast; – Avoid the departure of the illegal immigrants towards the Canary Islands and in the case of the departure, intercept the small boats and return the immigrants to the national authorities.92 The plan appears to presume that African States remain exclusively responsible for the operations’ consequences. This premise warrants further scrutiny. Three possible avenues for establishing State responsibility in joint efforts of controlling the sea border are explored here: (1) responsibility for the own conduct of States in situations of joint operations, (2) responsibility for conduct of a State organ placed at the disposal of another State and (3) the concept of indirect responsibility for assisting another State in internationally wrongful conduct. Independent responsibility In situations of ‘joint’ border controls in which several EU Member States and/or third countries take part by independently deploying patrol boats or surveillance aircraft, a State remains independently international responsible for conduct carried out by its officers on board those planes or boats, if that conduct gives rise to an internationally wrongful act. Under the law of State responsibility, what is decisive is whether measures of interception or non-admission (1) are attributable to a State and (2) constitute a breach of an international obligation

92

Frontex, Operational plan Hera III, (on file with the author), para. 19.1.

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of that State – such as a violation of the prohibition of refoulement.93 For purposes of establishing State responsibility, it is not the ‘jointness’ of the operation which gives rise to an internationally wrongful act, but rather the particular conduct in breach of international law which is carried out by State officers stationed on board a ship or aircraft. The situation may be different when two or more States truly act jointly in intercepting migrant vessels, for example through deploying patrol boats with a mixed crew of two national authorities. But in those situations, the law on State responsibility does not seem to give rise to particular problems as regards appointing responsibility. As formulated in the Commentary to the ILC Articles, in most cases of collaborative conduct by States, responsibility for the wrongful act will be determined according to the principle of ‘independent responsibility’, implying that each State is separately responsible for conduct attributable to it.94 This also implies that where a single course of conduct is attributable to several States, State responsibility is not diminished or reduced by the fact that other States are also responsible for the same act.95 The same principle applies in situations where the organ of one State acts on the joint instructions of its own and another State or where an organ performs duties for shared purposes. In these situations, the conduct is attributable to both States.96 For example, if a patrol boat with a mixed crew of Spanish and Senegalese officers are tasked to intercept vessels attempting to leave Senegalese territorial waters, Spain can very well be held independently responsible for the joint conduct of these officers – if established that the conduct entails a breach of Spain’s international obligations. Attribution of conduct A second basis for establishing responsibility of European States cooperating with third States in controlling the border could consist of attributing the conduct of border guards of African States to European States. The argument would be that through funding, training and the supply of patrol boats and technical equipment, countries such as Morocco, Mauretania, Senegal or Libya are encouraged to step up border controls, so that the African border guards effectively function as subsidiary organs of the European countries in executing those countries’ immigration policies. Although Article 6 of the ILC’s Articles on State

93 94

95 96

See Articles 2 and 4 ILC Articles on State Responsibility. James Crawford, The International Law Commision’s Articles on State Responsibility; Introduction, Text and Commentaries, (Cambridge: Cambridge University Press, 2002) (hereafter ‘ILC Commentary’), 146, 272. See Article 47 ILC Articles on State Responsibility and ILC Commentary, p. 272. See also ILC Commentary (n 94), pp. 103–104.


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Responsibility does recognise the possibility of attributing conduct of a State organ to another State, this is possible only in limited and precise situations. Not only must the organ be appointed to perform functions appertaining to the State at whose disposal it is placed, it must also act in “conjunction with the machinery of that State and under its exclusive direction and control, rather than on instructions from the sending State”.97 Special rapporteur Ago has noted that the essential requirement to be fulfilled for attribution in these circumstances is that the organ must be “genuinely and exclusively under the authority of another State” and that the decisive element is the authority actually responsible for its acts at the time they were performed.98 Given the current frameworks of cooperation between European and African countries – in which African border guards operate within their own command structures – this would most likely rule out any argument for attributing the conduct of African border guards to European States. Aiding and assisting The third and arguably most controversial mode for establishing responsibility on the side of European States for joint measures of border control would be to construe the European involvement in border conduct carried out by third States as an instance of derived responsibility, in which European States may be held indirectly responsible for an internationally wrongful act committed by a third country. The ILC Articles categorise situations of derived responsibility under the headers of ‘aiding and assisting’, ‘direction and control’ and ‘coercion’.99 The most plausible argument would probably be that through assisting third states in closing the border, European states might facilitate the violation of refugee and other rights and therefore be complicit in the violation of those rights. One requirement for holding States responsible for assisting another State in committing a wrongful act is that that the State actually carrying out the conduct is in breach of its own international obligations.100 This requirement is especially relevant for establishing responsibility under the European Convention on

97

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99 100

ILC Commentary (n 94), p. 103. See for a reverse situation of multiple responsibilities regarding border control: EComHR 14 July 1977, X. and Y. v Switzerland, Appls. 7289/75 and 7349/76, p. 73, where the Commission held the Swiss border police exercising functions on the territory of Lichtenstein not to act in distinction from their national competences. Accordingly all persons to whom they applied border measures were brought under Swiss jurisdiction within the meaning of Article 1 of the European Convention on Human Rights. Roberto Ago, “Third Report on State Responsibility”, Yearbook of the ILC Vol II(1) (1971), UN Doc. A/CN.4/246 and Add.1-3, pp. 268–269. See Articles 16, 17 and 18 ILC Articles State Responsibility. Article 18 ILC Articles.

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Human Rights or the Refugee Convention, whereas African States are obviously not a party to the European Convention and Libya has not signed the Refugee Convention. But under treaties to which both the assisting and assisted States are party, it could be argued that maltreatment of migrants or disrespect for the prohibition of refoulement on the side of third States should engage the responsibility of European States if they provide essential assistance in the commission of those acts in the form of financing, providing equipment, etcetera. The international law concept of aiding and assisting, or complicity, is not without controversial elements.101 According to Article 16 ILC, two requirements must be fulfilled for establishing responsibility on the side of the assisting State: the assisting State must be aware of the circumstances making the conduct of the assisted State internationally wrongful and the act must be internationally wrongful if committed by the assisting State. The latter requirement will not pose a problem as all European countries are party to the relevant human rights instruments. More problematic is the requirement that the assisting State must have “knowledge of the circumstances of the internationally wrongful act”. Although it is clear that a State unaware of the circumstances in which its aid is intended to be used bears no responsibility,102 it is less clear whether it is sufficient that a State has knowledge that the aid may (potentially) be used for unlawful purposes or that it is required that aid is given with the specific purpose, or intention, to facilitate the commission of a wrongful act. Although the element of intent was omitted from the final draft of Article 16 – and the notion of ‘fault’ or ‘intention to harm’ was expressly omitted from the Articles altogether103 – the ILC Commentary does qualify the element of intent as a constituent element in Article 16 by noting that “aid or assistance must be given with a view to facilitate the commission of the wrongful act”.104 Graefrath has noted that the requirement of intent makes the whole construction of complicity unworkable.105 In most cases it may indeed be extremely difficult, if not impossible, to prove that a State provided aid precisely for the

101

102 103 104

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For an in-depth exercise, see especially John Quigley, “Complicity in International Law: A New Direction in the Law of State Responsibility”, British Yearbook of International Law 57 (1986), 77-131; and Bernhard Graefrath, “Complicity in the Law of International State Responsibility”, Revue Belge de Droit International 29 (1996), 370–380. ILC Commentary (n 94), p. 149 (4). Ibid., pp. 81-82 and especially at p. 84. Ibid., p. 149. Also see p. 151: “Where the allegation is that the assistance of a State has facilitated human rights abuses by another State, the particular circumstances of each case must be carefully examined to determine whether the aiding State by its aid was aware of and intended to facilitate the commission of the internationally wrongful act.” Emphasis added. Graefrath (n 101), p. 375.


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purpose of committing an international wrong. Including the element of intent may therefore set the threshold too high.106 Earlier, the ILC noted that “knowledge of the specific purpose for which the State receiving certain supplies intends to use them” suffices for establishing complicity.107 This approach – and the text of Article 16 – is in line with the statement that under international law, “knowledge is a condition of responsibility”108 and that with regard to State responsibility for acts performed by others, “the law of State responsibility most usually requires due diligence rather than its own culpa as the test for attributed responsibility”.109 A further issue is whether a mere possibility that human rights violations will be facilitated by assistance is sufficient for establishing responsibility. Given the broad meaning of ‘assistance’, a lenient standard appears problematic. To give an example, although development aid is increasingly made dependant on criteria of good governance, it would undoubtedly run the risk of being counterproductive if one were to label the provision of financial loans by a donor State as unlawful if funds were to incidentally fall into the hands of State officials committing human rights violations. It appears from the examples of situations used by the ILC as basis for devising the concept of aiding and assistance, that the link between assistance and the wrongful act must not be too remote. Complicity under international law has been accepted in such situations as a State placing its territory at the disposal of another State to make it possible for that State to commit an act of aggression against a third State; the provision of means for the closure of an international waterway; the facilitation of the abduction of persons on foreign soil; and assistance in the destruction of property belonging to nationals of a third country.110 Other examples mentioned are Security Council resolutions calling upon States not to render aid to activities of regimes previously held to be

106

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108

109

110

Ibid. Also Mark Gibney, Katerina Tomaševski and Jens Vedsted-Hansen, “Transnational State Responsibility for Violations of Human Rights”, Harvard Human Rights Journal 12 (1999): 294. Roberto Ago, “Seventh Report on State Responsibility”, Yearbook of the ILC 2(1978), UN Doc. A/CN.4/SER.A/1978/Add. 1, p. 103. Ian Brownlie, System of the Law of Nations: State Responsibility (Part I), (Oxford: Clarendon Press, 1983), 43. Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994), 160-161. This is explained from the fact that international law is not normally concerned with the specific motivations of one or more State officials, but rather with the objective sufficiency or insufficiency of State action, and that assigning subjective or mental elements to abstract entities such as States is problematic. Ago, Seventh Report (n 107), p. 58. Reference was made to the 1974 Definition of Aggression, which prohibits a State to allow its territory to be used by another State for an act of aggression against a third State, General Assembly resolution 3314 (XXIX), annex.

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in violation of international law, such as the call upon States not to render assistance to the regime in Southern Rhodesia – which was labeled as a racist and therefore illegal regime – and the appeal on States not to provide Israel with “assistance to be used specifically in connection with settlements in the occupied territories”.111 These examples have in common that the link between the assistance and the wrongful act is obvious and not indirect. The assistance was used primarily, or specifically, to commit the act in question. Further, the element of chance hardly plays a role: it was a certainty and not a mere possibility that the assistance rendered would be used for committing the act. Although an argument that assistance in the form of the provision of patrol boats or money to third States engaged in gross or systemic violations of refugee and migrant rights can give rise to international responsibility is certainly tenable,112 it is less likely that assistance facilitating only occasional wrongdoings can also be brought under that header. Assuming that is has yet to be proved that third States with whom European countries cooperate are engaged in systematic violations of migrant rights, it is henceforth problematic to label assistance rendered in the form of money, technical equipment or training as unlawful. This is not to exclude however, that the construct of assistance as foundation for state responsibility can also come into play in more incidental situations where it is known, or practically certain, that an individual will be a victim of internationally wrongful harm if left in the hands of the assisted State and assistance is rendered to be used specifically in connection to that person. These may be quite hypothetical situations however. To conclude, while European States remain independently responsible for their own conduct in cooperating with third States if that conduct directly gives rise to violations of human rights, the threshold for establishing indirect responsibility through assisting third States in committing wrongful acts is considerably higher.

6. Conclusion In its ordinary meaning, border controls are about ensuring that only those persons – including their means of transport and the objects in their possession – who

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UN SC Resolution 232, 16 December 1966, UN Doc. S/INF/21/Rev. 1, para. 5; UN SC Resolution 465, 1 March 1980, UN Doc. S/INF/36, para. 7. Emphasis added. On these examples and others, see extensively Quigley (n 101), pp. 83–95. On aid used to violate human rights, see Quigley (n 101), pp. 92–95.


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are authorised to enter a country will actually cross the border. In this meaning, border controls form a neutral policy instrument which ensure the effective implementation of a country’s immigration legislation. To prevent their arbitrary application border controls are accompanied with certain legal safeguards, such as a right of judicial review when refused entry and special consideration for refugees and other persons entitled to international protection. It appears that practices of extraterritorial border control tend to move away from having the character of merely implementing substantive immigration policies to becoming part of the substantive law on immigration. Such measures as the diversion of migrants at sea or the provision of equipment to the border enforcement authorities of non-European countries are not merely targeted at checking whether persons meet the entry conditions, but have the express goal of putting into place a mechanism of deterrence in order to curb migration movements. Since these pre-border measures are often not accompanied by the same level of legal safeguards as provided to migrants subjected to ordinary practices of border control, they risk jeopardizing a right of entry to migrants, in particular refugees, who would have been allowed entry if they had succeeded in presenting themselves at a regular border crossing point. Extraterritorial border controls, however, do not take place in a legal vacuum. International law sets important parameters guiding the conduct of those controls, which flow from the applicable law on human rights and refugees and the rules on allocation of State responsibility. By operating beyond their borders, European States cannot simply avoid being held internationally responsible for the consequences of these activities. Neither can European States simply assume that by outsourcing control tasks to a third State or a private party, they will automatically be relieved of responsibilities pertaining to ensuring the rights and safeguards to be accorded to migrants. This chapter has argued that for such overarching norms as the prohibition of refoulement to be of value for individual migrants subjected to pre-border control measures, they need to be implemented in a practically workable and meaningful manner. In the European context, the current acquis on border controls and asylum does not respond adequately to the proliferation of pre-border control measures. It is remarkable that while the European Union is actively encouraging Member States to increasingly make use of the instrument of pre-border controls, this policy focus has not been accompanied with the provision of clear guidelines on the conduct of those controls. If it is acknowledged that extraterritorial border controls raise additional barriers for asylum seekers to present themselves at the European border and if the wish to uphold the principle that the fight against illegal migration should not come at the detriment of refugees is genuine, there appears ample need for additional Community safeguards on asylum in connection to pre-border controls.

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A similar reasoning applies regarding cooperation with third countries in controlling the border. In situations of joint border control operations, international law continues to govern the actions of agents of European States. This may be less obvious with regard to more indirect forms of support, such as through general programs of funding or the supplying or training of border guards of third States. For this support to take account of the needs of refugees, sound choices must be made as regards the third States with whom cooperation is sought and the conditions under which cooperation takes place. This would include the undertaking of meaningful assessments of the manner in which migrants in third countries are treated and to what extent protection in these countries is available.

Extraterritorial Migration Control and Human Rights: Preserving the responsibility of the EU and its Member States Evelien Brouwer 1. Introduction: Oh, border where art thou? “The border for movement of an individual is the place where a control takes place which is constitutive of whether the individual can pass or not”.1 It is clear that for EU Member States this meaning of “border”, the place where authorities control the entry of persons to national territory of one of the EU Member States, has changed significantly in the last twenty or thirty years. These changes not only concern the location where border controls are taking place, but also the actors involved. With regard to the territorial scope of EU borders, the classical external (land, sea, or air) borders of each individual state changed into the external borders of first, Benelux, then Schengen, and currently the territory of the 27 EU Member States. Aside from this “enlargement” of the territory, states also transferred their controlling activities to places beyond their own territory. One of the most traditional extraterritorial controlling mechanisms is the visa regime or entry clearance, by which the state of destination requires individuals of certain nationality to obtain prior authorisation before leaving their country. Since 1993, within the Schengen framework, the participating states have established common visa lists of third countries whose nationals must obtain a visa before entering those Schengen States. In 1999, with the Amsterdam Treaty, the Schengen lists were incorporated into EU law. Other mechanisms of pre-border immigration controls are “pre flight checks” or “juxtaposed control” through which states post liaison officers in the airports of countries, which are (comparably to the states included in the visa lists) known as sources of “unwanted” migrants. Considering the actors of border control, it is clear that this function is no longer exclusively performed by the authorities of the state desiring to control the movement of persons in and out its territory. On the basis of bilateral or

1

Elspeth Guild, “The border abroad – visas and border controls,” in In Search of Europe’s Borders, ed. Kees Groenendijk, Elspeth Guild and Paul Minderhoud (The Hague: Kluwer, 2003), 87.


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international visa agreements between different EU Member States, national embassies may decide upon visa applications on behalf of another state. Private actors are involved in the process of migration control through, for example, the outsourcing of visa applications, but also by the legal obligation of air carriers to control and process the identity and travel documents of their passengers. Furthermore, even if with some restraint, exclusive national powers of border controls are transferred to the EU level by the development and widening of the powers of the EU agency Frontex. Another relevant development in this field is the involvement of third states, mostly based on bilateral agreements with EU Member States, resulting in measures taken by the authorities of these third states to prevent migrants from leaving these countries for the EU. While this chapter will only describe measures taken explicitly to control the immigration of thirdcountry nationals to the EU, it is clear that (extraterritorial) border control measures do not envisage immigration control solely. As has been made explicit for example by the European Commission in the EUROSUR Communication, controlling the external borders of the EU is not only aimed at preventing illegal immigration, but also at countering cross-border crime, such as the prevention of terrorism, trafficking in human beings, drug smuggling, illicit arms trafficking, etc.2 These developments in EU migration policy have important consequences for the protection of human rights. In the words of Rijpma and Cremona: in the eyes of policy makers, extra-territorialisation allows them to evade the legal constraints on migration control within the Member States and appeals to public anxieties over migration, whilst allowing for the desired movement of people, such as trade and tourism. As regards human rights, this territorial link is questionable, and it has been argued that it is jurisdiction more than anything else that triggers a state’s responsibility for the protection of these rights. Therefore, a State would be responsible for anyone acting within the effective control of that State party.3

This chapter will investigate the legal basis for the responsibility of both the EU and its Member States for activities or situations outside their territory which interfere with the human rights of an individual. I will differentiate in this contribution between two situations: – national acts or decisions by Member States’ or EU actors, resulting in the extraterritorial violation of human rights;

2

3

Communication on Examining the Creation of a European Border Surveillance System, 13 February 2008, COM (2008) 68. Jorrit Rijpma and Marise Cremona, The Extra-Territorialisation of EU Migration Policies and the Rule of Law, European University Institute (Florence: EUI Papers, Law 2007/01).

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– extraterritorial acts affecting human rights taken by a Member State or EU actors, or by other actors under the supervision, or on behalf of, a Member State or the EU. This contribution will focus on the responsibility and accountability of both the EU and EU Member States under the European Convention on Human Rights (ECHR) and (without undervaluing their significance) only occasionally refers to other human rights instruments. ‘Responsibility’ refers here to the obligation to ensure the full protection of human rights. The concept of ‘accountability’ used here is legal accountability, rather than political or public accountability, and refers to the right of individuals to enforce their human rights vis-à-vis the Member States. This implies the right of access to legal remedies, including the state’s possible liability on the basis of civil law or criminal law. The following section describes several developments of external and extraterritorial border controls which entail a risk of “shifts of responsibility”, while interfering with the human rights of individuals. This section specifically considers different provisions in adopted and proposed measures dealing with the responsibility and liability of Member States towards individuals. The third section recalls the incorporation of human rights and the rule of law within the legal framework of the EU and the meaning of this incorporation for the underlying subject. Sections 4 and 5 then analyse the extraterritorial effect of the rights enshrined in the ECHR – generally, and in the context of immigration decisionmaking. In the conclusion, some recommendations are made to safeguard the extraterritorial protection of human rights, including the right to access to justice, enabling individuals to enforce their rights.

2. EU policy: shifting border controls and responsibilities? The Visa Code A visa is the legal title delivered by a State to a foreigner, permitting entry, stay, or transit through that State and is the ultimate form of “pre-border migration control”.4 A uniform definition of visa has been given in Article 2 of the Regulation 539/2001 on visa lists: “An authorisation issued by a Member State or a decision taken by such State which is required with a view to: entry for an intended stay

4

Didier Bigo and Elspeth Guild, “Policing at a Distance: Schengen Visa Policies” in Controlling Frontiers. Free Movement Into and Within Europe, ed. Didier Bigo and Elspeth Guild (Aldershot: Ashgate, 2005), 233–263.

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in that Member State or in several Member States of no more than three months in total: entry for transit through the territory of that Member State or several Member States, except for a transit at an airport.”5 In practice, EU Member States only require nationals of certain states to apply for a visa or entry clearance before leaving for the EU. The Schengen Convention (SC) of 1990 provided the basis for a common policy with regard to the issuing of short term visas (up to three months).6 Article 10 SC introduced a uniform visa (‘Schengen visa’) specifying that this visa is valid for all the Schengen Member States. In 1993, on the basis of Article 132 CISA, the Schengen Executive Committee adopted Common Consular Instructions (CCI) regarding visas for the diplomatic and consular posts of the Contracting Parties.7 Part V of the CCI included basic criteria to be used by diplomatic missions or consular posts when examining visa applications. The CCI made clear that the main issues to be taken into account by the national authorities when examining visa applications were the security of the Schengen States and the fight against illegal immigration. With regard to short term visas, the countries whose nationals need a prior visa are listed in the so-called ‘negative list’ included in the aforementioned Regulation 539/2001.8 In July 2006, the European Commission proposed a draft Regulation to replace the CCI.9 On 25 June 2009, the EU Council finally adopted the Community Code on Visas (Visa Code) or Regulation 3625/09. Two months earlier, the Council adopted Regulation 390/2009, amending the CCI in relation to the introduction of biometrics, including provisions on the reception and processing of visa application. This latter instrument has been incorporated in the new Visa Code. The new Visa Code includes safeguards dealing with the powers and behaviour of diplomatic and consular staff of the EU Member States abroad, and explicitly refers to the human rights obligations of the Member States’ authorities when dealing with visa applications and collecting biometric data for this purpose. Based on the legislative resolution of the European 5

6

7

8 9

Regulation listing third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempted from that requirement, OJ L 81/1, 21 March 2001. Convention Implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders of 19 June 1990. The Common Consular Instructions of 14 December 1993, amended and incorporated into EU law, Council Decision 1999/435/EC, OJ L 176, 10.07.1999. The full text of the Instructions are published in OJ C 326, 22.11.2005. This list has been frequently amended: see Bernard Ryan’s contribution to this collection. Draft proposal for a Regulation establishing a Community Code on Visas, COM (2006) 403, 19 July 2006.


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Parliament, preamble 29 of the new Community Visa Code states that the Regulation “respects fundamental rights and observes the principles recognised in particular by the Council of Europe’s Convention for the protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union.”10 Under the heading of “Conduct of staff”, Article 39 of the Visa Code provides that “Consular staff shall, in the performance of their duties fully respect human dignity. Any measures taken shall be proportionate to the objectives pursued by such measures.” This provision is followed by an explicit non discrimination clause: “While performing their tasks, consular staff shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” With regard to the collection of biometric data, Article 13 of the Visa Code copies the rules in the earlier Regulation 390/2009: “Member States shall collect biometric identifiers comprising the facial image and 10 fingerprints from the applicant in accordance with the safeguards laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms, in the Charter of Fundamental Rights of the European Union and in the United Nations Convention on the Rights of the Child.” Article 32(3) of the Visa Code provides that an individual whose visa application has been refused has the right to appeal “against the Member State that has taken the final decision on the application and in accordance with the national law of that Member State”. This right of appeal also applies to decisions concerning the inadmissibility of a visa application or a decision by which a visa is revoked or annulled, on the basis of Article 34 (7) of the Visa Code. Article 35 (7) includes a right of appeal against visa refusals at the borders. According to the same provision, Member States must provide applicants with information regarding the procedure to be followed in the event of an appeal. Article 23(2) of the Commission proposal had provided that the decision of the visa refusal should state the precise reasons for the refusal, using the standard form set out in the Annex to the proposal. Unfortunately, this obligation was amended to a less strict formulation in Article 32(2) of the Code, which provides that each refusal decision and the reasons on which it is based, shall be notified to the applicant by means of the standard form annexed to the Regulation. The proposal of the European Parliament to insert a provision according to which “a refusal should not affect any future visa application” was deleted from

10

Legislative resolution of 10 July 2008, T6-358/2008.

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the final text by the Council.11 This provision would have been an important safeguard against systematic repeated negative decision making, especially considering the future use of the Visa Information System. Common visa application centres Until recently there was no EU approach to the development of common visa application centres. Mutual representation at embassies or consulates for visa applications was instead provided for in bilateral or multilateral agreements between Member States. One of the earliest examples was the Benelux Agreement of 1960, which provided for cooperation between Belgium, Netherlands and Luxemburg with regard to the processing of visa applications for one of these three countries.12 In many third countries, the Benelux embassies and consulates of one state were empowered to issue a visa for the other two Benelux states as well. For this purpose the diplomatic and consular posts of the Benelux countries used common Benelux lists of persons not to be granted a visa without prior authorisation from the authorities of the country which declared the person inadmissible or unwanted. In view of the developments of biometrics and the inclusion of biometrics in visa and residence permits, in 2006 the European Commission proposed the idea of Common Application Centres, to reinforce local consular cooperation but also “to avoid all member states having to install the necessary equipment for collecting biometric identifiers in every consular office”.13 The establishment of Common Visa Centres includes the possibility of outsourcing the processing of visa applications and co-operation with external service providers. The adoption of so-called ‘representation agreements’ between different Member States is provided for in Article 8 of the aforementioned Visa Code. In 2007, the first ‘Common Visa Application Centre’ was opened in Moldova by the former vice-President of the European Commission.14 The Centre, housed by the Hungarian embassy, issues visas for Denmark, Austria, Slovenia, Estonia, Latvia, Hungary, Iceland, and since February 2008, Sweden. On 1 May 2008, a Common Application Centre was established within the Ministry of Foreign

11

12 13

14

See Council document 11831/1/07, showing the opposition of different Member States to this provision. Text was published in the Dutch Tractatenblad 1960, no. 40. Proposal for a Regulation to amend the Common Consular instructions for diplomatic missions and consular posts in relation to the introduction of biometrics including provisions on the organisation of the reception and the processing of visa applications, COM (2006) 269, 31.5. 2006. Press European Commission IP/07/561, 25 April 2007.


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Affairs of the Republic of Slovenia, in Ljubljana. So far, this Centre represents Austria, Hungary and the Netherlands, issuing single-entry visas for transit and short-stay.15 Schengen Borders Code Regulation 562/2006 on the Community Code governing the movement of persons at the borders (Schengen Borders Code or SBC) replaces the Schengen Common Manual on Border Control.16 The Schengen Borders Code was adopted by a decision of the Council on 21 February 2006. Complementing the abolition of internal border controls within the Schengen territory, the Schengen Borders Code includes rules on the measures and powers of authorities controlling the movement of persons at the external borders of the EU. It defines the tasks and obligations of the Member States’ border guards, including by describing the entry conditions for third-country nationals (Article 5). The Schengen Borders Code explicitly underlines the Member States’ human rights obligations.17 In the first place, recital 7 states that border controls should be carried out in such a way to fully respect human dignity, and in a professional and respectful manner, and that they should be proportionate to the objectives pursued. Secondly, recital 20 underlines that the Regulation “respects fundamental right and observes the principles recognised in particular by the Charter of the Fundamental Rights of the European Union. Furthermore, it states that the Regulation should be applied in accordance with the Member States’ obligations as regard international protection and non-refoulement.18 Also important is Article 6 SBC, on the conduct of border checks, providing that border guards must in the performance of their duties fully respect human dignity and that any measure taken in the performance of their duties must be proportionate to the objectives pursued by those measures. Furthermore, Article 6 (3) includes a non-discrimination clause, prohibiting border guards, while carrying out border checks, to discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. A right to remedies against refusals at borders is included in Article 13 of the Schengen Borders Code. According to Article 13(2), a third-country national 15

16 17 18

Information from the Ministry of Foreign Affairs of the Republic of Slovenia http://www .mzz.gov.si/en/visa_information/ (accessed 4 November 2009). Regulation 562/2006 of 15 March 2006, OJ L 105/1, 13 April 2006. Regulation 562/2006 of 15 March 2006 OJ L 105, 13.4.2006. See also Article 3 which states that this Regulation applies to any person crossing the internal or external borders without prejudice to the “the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.”

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may only be refused entry by a substantiated decision, stating the precise reasons for the refusal. This decision must be taken by an authority empowered by national law and shall take effect immediately. The decision should be given using a standard form, as set out in Annex V, Part B, to the Regulation. This standard form must be handed to the third-country national concerned, who must acknowledge receipt of the decision to refuse entry. According to Article 13(3) of the Regulation, persons refused entry shall have the right to appeal in accordance with national law. For this purpose, thirdcountry nationals should be given a written indication of contact points able to provide information on legal representatives competent to act on behalf of a third-country national. It is questionable whether the Schengen Borders Code applies in every situation of the externalisation of border controls. This Code defines the following as ‘external borders’: the Member States’ land borders, including river and lake borders, sea borders, and their airports, river ports, sea ports, lake ports, provided that they are not internal borders. The term “sea borders” is not defined, so that one cannot conclude whether this only covers the territorial waters of each Member State. Does the Schengen Borders Code apply to the operations of Frontex, or the Member States in international waters?19 In the present author’s opinion, “sea borders” in the Schengen Borders Code should not be interpreted too narrowly. Frontex Frontex – or the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union – was established by Council Regulation 2007/2004 of 16 October 2004.20 The role of Frontex is to facilitate the application of existing and future Community measures relating to the management of the external borders, by ensuring the coordination of the Member States’ actions in the implementation of those measures. Both the recitals to the Regulation and its Article 1(2) emphasise that the responsibility for the control and surveillance of external borders lies with the Member States. These provisions reflect the general idea that Frontex has no 19

20

See Sergio Carrera, The EU Border Management Strategy. Frontex and the Challenges of Irregular Immigration in the Canary Islands, (Brussels: CEPS Working Document No. 261/March 2007), available at http://www.ceps.eu (accessed 4 November 2009), concluding that the SBC does not apply to joint operations coordinated by Frontex because of the externalisation of border control, p. 27. OJ L 349/1, 25.11.2004. For a detailed discussion of Frontex, see the contributions to this volume by Baldaccini and by Guild and Bigo.


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independent powers, and that the power of border control activities still lies exclusively within the sovereignty of the Member States. However, Article 14 of Regulation 2007/2004 includes the task of “facilitation of operational cooperation with third countries and cooperation with competent authorities of third countries”. Furthermore, the goal of giving Frontex more operational tasks was underlined by the Justice and Home Affairs Council in June 2008, which also expressed its intention to explore the extension of the mandate of Frontex to allow for greater possibilities for operational cooperation with third countries.21 In its Communication of 10 June 2009, under the heading “More secure access to the territory”, the European Commission also seems to envisage a more active and independent role for Frontex. According to the Commission, Frontex should play a central role in “the future integrated mechanism for surveillance of external borders”.22 The Council and Commission have also emphasised compliance with human rights treaties. As a long-term priority, the Council has encouraged “a needsbased approach within the overall aim of the integrated management of external borders based on respect for fundamental rights and on the principle of burdensharing, solidarity and directed to improving effectiveness in preventing illegal immigration, in particular to high-risk areas of the external borders”.23 In the report on the evaluation and future development of Frontex, the Commission proposed that special training should be delivered through the Agency “on relevant provisions of European and international rules on asylum, the law of these sea and fundamental rights, in order to contribute to the full respect of these norms and to a consistent approach to situations involving search and rescue coordination.”24 Extraterritorial use of EU databases? Within the EU, many instruments have been developed dealing with the use of large-scale databases and the exchange of personal data.25 Examples are the Schengen Information System (SIS), Eurodac, and the planned Visa Information System (VIS), in which the information on every short term visa applicant will 21

22 23

24 25

Conclusions of the Council on the management of the external borders of the Member States of the European Union, 5 and 6 June 2008. COM (2009) 262, p. 18. See the aforementioned Conclusions of the Council on the management of the external borders of the Member States of the European Union, 5 and 6 June 2008. COM (2008) 67, 13 February 2008, p. 5. Florian Geyer, Taking Stock: Databases and Systems of Information Exchange in the Area of Freedom, Security and Justice (Brussels: CEPS Research Paper no. 9) available at http://www.ceps.eu (accessed 4 November 2009).

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be recorded. The SIS is accessible outside the EU territory by consular staff at embassies processing of visa applications, and the VIS is planned to be so. On the basis of the current text of the Eurodac Regulation, the extraterritorial use of Eurodac cannot be excluded either. The SIS, based on the Schengen Convention of 1990, is one of the most important databases used for immigration and border control in the EU. As of January 2009, it included nearly 28 millions records on objects and persons, of which approximately 1 million alerts concerned persons.26 Since its launch in 1995, the majority of personal data held in the SIS concerns third-country nationals to be refused entry on the basis of Article 96 of the Schengen Implementing Convention.27 The decision to report a third-country national within the SIS is based primarily on a national decision that the person is a threat to public order, public security or national security. Secondly, the decision can be based on immigration law decisions regarding the deportation, refusal of entry or removal of the person. The consequence of a decision to report an individual is that the person in principle will be refused entry to every other Schengen State (including three non-EU states: Norway, Iceland and Switzerland). On the basis of a SIS alert, a third-country national may also be denied a visa or a residence permit, or even expelled or detained. The practical use of SIS (and in future SIS II) is thus based on a system of mutual recognition of national decisions to refuse entry to a third-country national, rather than on the harmonisation of refusal grounds. The VIS is to contain information on every visa issued, every decision to examine an application for a visa, every visa which is refused, annulled, or revoked, and on each extension of a visa.28 The persons concerned are those from the countries whose nationals require a visa, according to the EU visa lists. VIS will not only facilitate the administration and exchange of information on visa applications, but is also to be used to prevent visa fraud, in the fight against illegal immigration, and to facilitate return policy. Further, according to the first Article of the VIS Regulation, the use of VIS is to “contribute to the prevention of threats to internal security of any of the Member States”. VIS will include both alphanumerical data on the applicant together with his photograph and fingerprints.29 The personal data are to be collected upon lodging the 26 27

28

29

SIS Database Statistics, Council document 5764/09, 28 January 2009. On 1 January 2009, from the 927.318 records on persons held in the SIS, 746.994 (80.5%) were third-country nationals reported for the purpose of refusal of entrance. Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System and the exchange of data between Member States on short-stay visas (VIS Regulation) OJ L 218, 13.8.2008. Article 3.1. Article 6 lists the alphanumerical data that are entered in the application file. Some of the alphanumerical data are surname, first names, sex, date, place and country of birth,


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application for a visa, and will be linked to other application files, for example of members of the same travelling group or the former application files of the same applicant. Eurodac, which has been operational since 15 January 2003, is the first large ‘Automated Fingerprint Identification System’ in the EU.30 This system includes the fingerprints of asylum seekers and immigrants apprehended when making an irregular crossing of the borders of a Member State. The sole purpose of Eurodac is to facilitate the application of the Dublin Regulation to establish which state is responsible for an asylum application submitted in an EU Member State. On the basis of Article 4 and 11 of the Eurodac Regulation, Member States may transmit to the Central Unit of Eurodac any fingerprint data of persons of at least 14 years, in order to check whether the person has previously lodged an application for asylum in another Member State. On the basis of Article 15 (2) of the Eurodac Regulation, the Member States must communicate to the Commission which national authorities may have access to the data recorded in the central database. A list of these designated authorities does not appear to have been published by the European Commission, so that it is unclear whether this includes national authorities operating outside the Member State’s territory.31 It is therefore possible that Eurodac is already being used extraterritorially to check whether a visa applicant previously applied for asylum in one of the EU Member States. It is also significant that, invited by the Council in 2007, the Commission launched in June 2009 a legislative proposal to provide national law enforcement authorities and Europol with access to the information stored into Eurodac.32 The use of databases such as the SIS and VIS by consular staff in third countries, in deciding on the issuing of visas, raises important issues with regard to the responsibility and accountability of EU Member States. Both SIS and VIS are based on the principle of mutual trust and the mutual enforcement of national administrative decisions. This means that Schengen States can invoke other

30

31

32

nationality, type of travel document, place and date of application, application number and the visa status information. Regulation (EC) No. 2725/2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention, OJ L 316, 15 December 2000. For the decision on the operability of Eurodac: OJ C 5/2, 10 January 2003. The annual reports of the Commission on the activities of the Eurodac Central Unit, does not mention which national authority may have access to Eurodac, see for the report on 2007, COM (2009) 13, 26 January 2009. Amended proposal for the Eurodac Regulation (COM (2009) 342) and the Decision on requesting comparisons with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes (COM (2009) 344), 10 September 2009. For the previous decision of the Council, see Council document 10002/07, 25 May 2007.

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states’ decisions in order to legitimise their own acts – including the rejection of visa applications – on the basis of SIS information. The involvement of third states The EU concept of “integrated border management” explicitly envisages cooperation with third states. This cooperation is considered necessary not only to the aim of controlling the EU’s external borders, but also to the return policy of EU Member States and to the protection of internal security. In order to meet these different objectives of EU border management, the Commission underlined in its Communication on EUROSUR of February 2008, the necessity of the cooperation with third countries “in order to detect, identify, track and intercept persons attempting to enter the EU illegally outside border crossing points”.33 For this aim, the Commission proposed to make an assessment of the border surveillance infrastructure in selected neighbouring third countries, based on the evaluation carried by Frontex. This assessment would then be used in the programming of relevant financial programmes in the external relations domain, taking into account the means available in the context of the current financial perspectives. Aside from the bilateral readmission agreements signed between EU Member States and third states, since the Amsterdam Treaty, the European Community has adopted readmission agreements with several third states on the basis of Article 63(3) TEC. There is no doubt that there is a close relation between these readmission agreements and the measures taken by third states with regard to their external borders preventing persons to leave for the territory of EU Member States. This has been referred to by Coleman as the “closed sack” effect of readmission agreements: migrants are captured on the territory of transit third states, because these latter countries, stimulated by readmission agreements, increased their border controls.34 In a Communication of 10 June 2009, setting out its future plans for the area of freedom, security and justice, the Commission underlined the role of third countries in EU immigration and asylum policy. Under the heading ‘Consolidating a global approach’, the Commission envisages the conclusion of new agreements with third countries consolidating a comprehensive approach, including an “effective, solidarity-based system to prevent illegal immigration”

33

34

Communication on examining the creation of a European Border Surveillance System (EUROSUR), COM (2008) 68, 13.2.2008, paragraph 3. Nils Coleman, European Readmission Policy. Third Country Interests and Refugee Rights, (Leiden/ Boston, Martinus Nijhoff Publishers: 2009).


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promoting cooperation on surveillance and border controls, and facilitating readmission by promoting support measures for return.35 For this aim, the Commission recommends mobilising the Union’s various cooperation instruments to “increase the capacity of the central, regional and local authorities of non-member countries to manage migration issues, including improving their capacity to offer adequate protection.” Also relevant here are agreements signed between individual EU Member States and third countries which deal with migration flows and border controls. There are different examples of agreements adopted outside the legal framework of the EU. Agreements such as between Libya and Italy, or between Libya and France or Mauritania and Spain have never been published, nor were they the subject of open debates within national parliaments or the European Parliament.36 These agreements must be considered the result of intense bargaining between the European states and the “countries of transfer”, exchanging economical and development aid for cooperation at the sea borders, and within the third state, activities preventing persons to leave the latter state.

3. Human rights within the legal framework of the EU Safeguarding human rights and the rule of law is considered a prerequisite for the legitimacy of the European Union and the loyalty of its Member States towards this legal framework. Referring to both the jurisprudence of the ECJ and the amended texts of the EU Treaties, it is clear that the contemporary EU is based on the rule of law and respect for human rights, as protected in the European Convention on Human Rights (ECHR).37 The emphasis on human rights and the rule of law in the judgments of the ECJ is generally seen as an answer to the concerns of Member States with regard to the protection of human rights within the legal order of the Communities.38 With the Treaty of Maastricht of 1992, the binding role of human rights as protected in the ECHR and the importance of constitutional traditions in the Member States for EU law were 35 36

37

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COM (2009) 262, p. 24. See Sara Hamood, “EU-Libya Cooperation on Migration: A Raw Deal for Refugees and Migrants?,” Journal of Refugee Studies 21 (2008): 19-42 and the chapters by Alessia di Pascale and Paula Garcia Andrade in this collection. T. C. Hartley, The Foundations of European Community Law, (Oxford: Oxford University Press, 2003 (fifth edition). See, for a detailed analysis of the relationship between the EU and human rights: Rick Lawson, Het EVRM en de Europese Gemeenschappen (The Hague: Kluwer, 1999) and The EU and Human Rights ed Phillip Alston (Oxford: Oxford University Press, 1999).

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explicitly recognised in the EU Treaty.39 The new Article F (2), the current Article 6 (2), of this Treaty stated that “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.” The inclusion of the rule of law and human rights as one of the requirements of EU membership in the so-called Copenhagen criteria confirmed its importance as a founding principle for the legal order of the EU.40 Article 6 (1) of the EU Treaty added with the Amsterdam Treaty of 1997 states that, “liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law” are the founding principles for the Union and are principles which are common to the Member States.41 Finally, with the adoption of the EU Charter of Fundamental Rights in 2000, the European Council not only confirmed the importance of the ECHR for the legal framework of the EU, but it also developed its own set of human rights.42 Except for a set of rights limited to EU citizens only, the fundamental rights and freedoms included in the EU Charter of Fundamental Rights apply both to EU citizens and to non-EU citizens. This also follows from the different EC immigration and asylum instruments, also dealt with in section 2, referring in their recitals explicitly to the EU Charter, and sometimes also to the ECHR and the non-refoulement principle of the Geneva Treaty.43 Even before the Reform Treaty, providing for the binding effect of the Charter, was ratified, the EU Court of Justice (ECJ) and the Court of First Instance (CFI) already referred in several judgments to the obligation of the Member States to observe the EU Charter and the principles on which it is based. For example, in its judgment European Parliament v. Council dealing with the Family Reunification Directive 2003/86, the ECJ ruled that Member States are bound to observe the principles which are recognised in the EU Charter, including the right to family life of Article 7.44 The ECJ explicitly referred to the second recital of the preamble to the Family Reunification Directive, where the EC legislator itself acknowledged the importance of the EU Charter of Fundamental Rights. In this judgment, the ECJ also emphasised that the

39 40 41 42 43

44

OJ C 191, 29.7.1992. European Council 21–22 June 1993, SN 180/1/93 Rev. 1, OJ C 042, 15.2.1993. OJ C 340, 10.11.1997. Treaty of Nice, OJ C 80, 10.3.2001. See for an overview, Steve Peers, “Human Rights in the EU Legal Order: Practical Relevance for EC Immigration and Asylum Law” in EU Immigration and Asylum Law: Text and Commentary, ed. Steve Peers and Nicola Rogers (Leiden: Martinus Nijhoff, 2006), 129. C-540/03, European Parliament v. the Council §§ 38 and 58 [2006] ECR I-5769.


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Charter is to be regarded as the codification of general principles of EU law and the constitutional traditions of the Member States.45 This makes clear that not only the Member States, but also the EU institutions when adopting or implementing EU measures in the field of immigration and asylum law, should respect the fundamental rights and freedoms as protected in both the ECHR and the EU Charter.

4. Extraterritorial application of human rights: reading Bankoviç To what extent does the ECHR apply to the extraterritorial immigration control actions of EU Member States? This question is not so easily answered, especially since the Banković judgment of the ECtHR. This judgment, which has been criticised by many commentators, raised questions about the intentions of the Strasbourg Court with regard to the extraterritorial behaviour and responsibilities of contracting states. The main issue concerned the interpretation of the ECtHR of the definition “jurisdiction” as used in Article 1 ECHR. Where the ECtHR defined “jurisdiction” on the basis of its meaning in public international law, commentators argued that this notion should not be applied when it concerns the human right obligations and responsibilities under the ECHR. In this section, I will only summarise some central findings based on the jurisprudence of the ECtHR, referring the reader to the more elaborate discussions on this matter elsewhere.46 The reason for examining the ‘meaning of Bankoviç’ is that this judgment has been used as an argument to reject the Member States’ responsibility under the ECHR when dealing with immigration law decisions, and more specifically visa decisions (see further section 5 below). Decisions of the ECtHR before Banković It has long been accepted that the responsibility of the contracting parties under the ECHR may arise for extraterritorial actions performed by or on

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C-540/03 § 38. See Rick Lawson, “Life after Banković: On the extraterritorial application of the European Convention on Human Rights,” in Extraterritorial Application of Human Rights Treaties, eds Fons Coomans and Menno Kamminga (Antwerp and Oxford: Intersentia, 2004), pp. 83–123; Virginia Mantouvalou, “Extending Judicial Control in International Law: Human Rights Treaties and Extraterritoriality” International Journal of Human Rights. 9 (2005): 147–163; Marko Milanović, “From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties” Human Rights Law Review 8 (2008): 411–448.

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their behalf. In Hess v. the UK, the ECtHR held for the first time in 1975 that under certain circumstances a State may be responsible under the Convention for the actions of its authorities outside its territory.47 In Drosd and Janousek v. France and Spain, the ECtHR clarified that the responsibilities of Contracting Parties under the ECHR are not limited to actions performed on their national territories but may involve “acts of their authorities producing effects outside their own territory”.48 In this case, the responsibility of France and Spain was finally denied because it could not be established that the authorities, against which acts the complaints were directed, were under the direct supervision of these states.49 However, as a general conclusion this means that also for acts of state agents outside their territory, the state party can be held responsible. In Loizidou v. Turkey, the ECtHR confirmed the extraterritorial applicability of the ECHR by adding that Contracting Parties could be held responsible for acts producing effects outside their own territory “whether performed within or outside national boundaries”.50 The responsibility of a Contracting Party may arise “when as a consequence of military action – whether lawful or unlawful – it exercises effective control or an area outside its national territory.” According to the ECtHR, the obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration”.51 As the ECtHR pointed out in the Cyprus v. Turkey, “any other finding would result in a regrettable vacuum in the system of human-rights protection”.52 In Cyprus v. Turkey, the ECtHR further clarified the responsibility of contracting states for the acts of local administration of third states acting on behalf and under the control of the respondent state: “Having effective overall control over northern Cyprus, its [Turkey’s] responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support (emphasis added).”53

47 48 49

50 51 52 53

Application no. 6231/73, 28 May 1975. Drosd and Janousek v. France and Spain, Application no. 12747/87, 26 June 1992, para. 91. This case concerned the complaints against decisions of French and Spanish judges in Andorra, however operating independently from the French and Spanish authorities within their role as judges of the Andorran courts. Loizidou v. Turkey, Application no. 15318/89, decision of 23 March 1995, para. 62. Ibid. Cyprus v. Turkey, Application no. 25781/94, 10 May 2001, para. 78. Ibid., para. 77.


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The case-law in which the ECtHR was asked to consider the extraterritorial responsibility of states, is not limited to military actions of those states, as in Cyprus v. Turkey and Loizidou v. Turkey. Extraterritorial responsibility was applied by the former European Commission of Human Rights to a private police informer acting on behalf of the German authorities in another state (Stocké v. Germany) and to the Danish ambassador handing an individual asylum seeker over to the GDR police in East Berlin (W.M. v. Denmark).54 Equally, in the aforementioned judgment of Hess v. UK, the ECtHR considered the actions of UK authorities dealing with the administration and supervision of the Spandau Prison in Berlin. In Xhavara v. Albania and Italy, the ECtHR underlined the responsibility and liability of contracting states for the violation of individual’s rights caused by state agents directly involved in measures of immigration control.55 This case dealt with the claim of Albanian citizens whose boat sank as result of a collision of their ship with an Italian war vessel. During this incident 58 people drowned. The presence of Italian war vessels and the actions taken by the Italian officials was based on a 1997 agreement between Italy and Albania, which authorised the Italian navy to board and search Albanian boats, in order to respond to an increase of Albanian citizens trying to enter Italy illegally. In their submission to the ECtHR, the applicants (survivors and relatives of the victims of the incident) complained that Albania and Italy failed in their duty to respect the applicants’ right to life. With regard to the complaint against Albania, the ECtHR held that Albania could not be held liable for measures taken by Italy in performance of an agreement reached between those two states. The reason why the complaint against Italy was declared inadmissible was only that criminal proceedings against the commander of the Italian war vessel were still pending, and therefore domestic remedies had not been exhausted.56 Despite the decision on the inadmissibility of the appeal, the ECtHR made interesting remarks implying the recognition of extraterritorial liability of the Italian authorities. The ECtHR noted that Article 2 ECHR requires the Contracting Parties to conduct some official, effective, independent and public investigation when state agents are involved in the death of an individual. In this case, the ECtHR ruled that the applicants had not adduced any evidence to show that the boat had been deliberately sunk. Referring to the non-exhausted domestic remedies, however, the Court ruled that these criminal proceedings 54

55 56

Stocké v. Germany, Application no. 11755/85, 9 July 1987; W.M. v. Denmark, Application no. 17392/9014, October 1992. Application no. 39473/98, decision of 11 January 2001. Because of the agreement between Italy and Albania the question whether the alleged violations fell within the jurisdiction of Italy was not raised.

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were precisely to establish whether the accused (the commanding officer of the warship) had exposed the passengers to a danger disproportionate to the aim pursued and thus to determine whether the measures taken to control immigration had been applied in a manner compatible with the duty to protect life. In my view, the Xhavara decision is important for two reasons. Firstly, the ECtHR did not deny the liability of Italy for the violation of human rights by its agents (the commander of the war vessel) in extraterritorial waters.57 This seems to justify the reasoning that if there is a direct and immediate link between the extraterritorial conduct of a state and the alleged violation of an individual’s rights, the individual must be assumed to be within the jurisdiction of the state concerned, within the meaning of Article 1 ECHR. Secondly, the Strasbourg Court underlined the importance of individual access to remedies, precisely to establish whether the (immigration control) acts are proportionate to the rights at stake. Banković While the Banković judgment has been criticised because of the ECtHR’s interpretation of “jurisdiction” within the meaning of Article 1 of the Convention, nevertheless it includes an important summary of situations in which extraterritorial responsibility may be applied. Even if the ECtHR emphasised that in its case-law it has only exceptionally accepted extraterritorial jurisdiction by a contracting state, it affirmed that it had done so “when the respondent State through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally exercised by that Government”.58 This, according to the ECtHR, includes cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State.59 Formally, the Court declared the action by the applicants – one person who had been injured but survived the NATO bombings and five relatives of the victims – inadmissible by interpreting “jurisdiction” on the basis of international public law. By underlining that the ECHR is multilateral treaty operating in an essentially regional context and notably in the legal space of the Contracting

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The decision did not make clear whether the accident happened in Albanian, Italian or international sea. Banković, para. 71. Ibid., para. 73.


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States, the ECtHR found that the Former Republic of Yugoslavia did not fall within this legal space.60 As Lawson has pointed out, this interpretation of “jurisdiction”, contradicts the aforementioned examples of extraterritorial responsibility given by the ECtHR earlier in its judgment. The ECtHR seemed to use its conclusion on the limited application of the ECHR to the “European legal space” to explain the difference in outcome between Banković and its earlier Cyprus v. Turkey judgment. This difference is however not entirely clear: because of Turkey’s “effective control” of the territory of Northern Cyprus, a restricted interpretation of “jurisdiction” in the latter case would have excluded the inhabitants of Cyprus from the benefits of the Convention safeguards which they had previously enjoyed. There are different theories as to why, in the Banković case, the ECtHR rejected the responsibility of the respondent states with regard to the NATO bombings in former Yugoslavia. Commentators have suggested both practical as principled reasons behind this decision.61 A practical reason would be the attempt of the Court to limit its overflowing workload. A more valid ground seems to be that, because the European states acted within the operational framework of NATO, a single state could not be held liable for the acts performed under the responsibility of that international organisation.62 With regard to the content of the ECtHR’s reasoning, commentators criticised the fact that the Court used a notion of “jurisdiction” on the basis of international law which has a totally different function from “jurisdiction” when dealing with human rights obligations of states. As Happold has pointed out, whether a Contracting Party is exercising extra-territorial jurisdiction is a question of fact and not of law.63 Or in the words of Noll “within jurisdiction” does not refer to a geographical, but to an administrative boundary, and the administrative reach of a state may exceed its territorial borders.64 According to Lawson, to conclude otherwise would be “morally wrong and legally unsound if, in the field of human rights, states were allowed to do abroad what they have undertaken not to do at home.”65 60 61 62

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Ibid., para. 80. Lawson, 115–116. This reasoning was applied in Behrami v. France and Saramati v. France, Germany and Norway, Application nos. 71412/01 and 78166/01, 2 May 2007, dealing with activities of Contracting Parties under the authority and control of the United Nations Security Council. M. Happold, “Banković v. Belgium and the territorial scope of the European Convention on Human Rights”, Human Rights Law Review 3 (2003): 87. Gregor Noll, “Seeking Asylum at Embassies: A Right to Entry under International Law?” International Journal of Refugee Law 18 (2005): 567. Lawson, 97.

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As we have seen, other ECtHR case-law is more in line with this reasoning. The Strasbourg Court even confirmed this principle explicitly in Issa and others v. Turkey, when dealing with the application of Article 1 ECHR by which the contracting parties agreed to secure the Convention rights of everyone within their jurisdiction. The ECtHR held in this judgment that Article 1 “cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory.”66 The same argument has been used by the Human Rights Committee in dealing with the interpretation of Article 2 of the UN Covenant of Civil and Political Rights in the Lopez Burgos case: “it would be unconscionable to so interpret the responsibility under Article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another state, which violations it could not perpetrate on its own territory.”67

5. Human rights beyond external borders It is therefore questionable whether the restrictive line set out by the ECtHR in Banković with regard to the extraterritorial application of human rights affects the responsibility of contracting states in their immigration law procedures. This section gives a number of examples of human rights principles which are relevant to extraterritorial acts in the immigration field, including decisions or actions of contracting parties performed within their own territories but with possible extraterritorial effects on the protection of human rights. Refoulement and protection against inhuman and degrading treatment Article 3 ECHR obliges Contracting Parties to protect individuals “within their jurisdiction” from inhuman and degrading treatment.68 The responsibility of contracting parties under the ECHR may involve the actions of contracting parties performed within their own territories but with possible extraterritorial effect violating individual rights as protected in the ECHR. It was this situation which was dealt with in Soering v. the UK, 66 67

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Application no. 31821/96, judgment of 16 November 2004, para. 71. Human Rights Committee Communication no. 52/1979: Uruguay, 29 July 1981, para. 12.2 and 12.3. For a more detailed contribution on the right to non refoulement and extraterritorial migration control measures, see Maarten den Heijer in this volume and Ruth Weinzierl and Ursula Lisson, Border Management and Human Rights. A study of EU Law and the Law of the Sea (Berlin: German Institute for Human Rights, 2007).


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Vilvarajah and others v. the UK, and T.I. v. UK.69 These cases concerned the prohibition against torture and inhuman and degrading treatment or punishment in Article 3 ECHR and the responsibility of contracting states for the extraterritorial effects of decisions adopted in their own territory. In the Soering case, the United Kingdom was held responsible because the ECtHR considered the intended extradition of a person to the United States incompatible with Article 3 of the ECHR as the person would be subjected to ill-treatment in the receiving country because of the threat of the death row phenomenon. In Vilvarajah and Jabari v. Turkey, the ECtHR made clear that an expulsion (or return) by a contracting state may give rise to an issue under Article 3, and thus the responsibility of the expelling or returning state, “if substantial grounds have been shown for believing that the person in question, if expelled, would face a risk of being subjected to a treatment contrary to Article 3 in the receiving country.”70 Article 3 ECHR must also entail the obligation of contracting states to ensure that, when deciding abroad upon immigration applications, or when using or instructing third states authorities or private agents to perform immigration or border controls abroad, to protect individuals risking persecution in the country they are coming from. Detention and the right to liberty and security of persons Article 5 ECHR protects the right to liberty and security of persons. According to this right, no-one should be deprived of his or her liberty except in the situations described in Article 5 (1) and if this is in accordance with a procedure prescribed by law. One of these situations of “lawful arrest or detention of a person” is, according to Article 5 (1) (f ), “to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” Arguably, national states are also responsible for acts taken by their officials, or taken on their behalf by third states authorities or private agents, if this results in the detention of third country nationals attempting to migrate to the territory of the EU Member States. The right to family life: EU Member States’ positive obligations Another relevant development with regard to this subject is the case-law of the ECtHR dealing with positive obligations deriving from the human rights

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Soering, Application no. 14038/88, 7 July 1989; Vilvarajah, Application no. 13163/87, 30 October 1991; T.I. Application no. 43844/98, 7 March 2000. See also Jabari v. Turkey, Application no. 40035/98, 11 July 2000, para. 38.

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protected in the ECHR. The ECtHR has recognised, under certain circumstances, the positive obligation of governments with regard to the admission of a person, when this is necessary for the protection of the applicant’s family life. The positive duty to give leave to enter to its national territory or to issue a residence permit was acknowledged for the first time in Abdulaziz, Cabales and Balkandali v. the United Kingdom.71 Although, in this case, the ECtHR found no breach of Article 8 ECHR, it confirmed that the refusal to give spouses of legally resident third-country nationals leave to enter or to remain in the UK could affect the right to respect for family life under Article 8. The ECtHR rejected the government’s view that Article 8 ECHR would not apply at all to immigration control, by confirming the earlier statement by the Commission that the right of a foreigner to enter or remain in a country is not guaranteed as such by the Convention, but that immigration controls had to be exercised in accordance with the Convention obligations and the exclusion of a person from a state where members of his family were living might raise an issue under Article 8 (para 59). In both Gül v. Switzerland and Ahmut v. the Netherlands, the ECtHR held that a refusal to permit the applicants to remain in the country did not constitute “interference” with the exercise of their right to respect for their family life.72 However, the ECtHR ruled that, based on the positive obligation of States to respect the family life of the individual “a fair balance has to be struck between the competing interests of the individual and of the community as a whole”, recognising “a certain margin of appreciation” for the State and balancing the different interests at stake.73 More important is the Sen case concerning the refusal by the Dutch authorities to admit the daughter of Turkish parents who lived in the Netherlands. Here, the ECtHR ruled that the positive implications of Article 8 ECHR may imply that third-country nationals applying abroad for a residence permit or a visa for another State are entitled to a remedy against the denial of this request when this denial is regarded as violating their right to family life.74 The ECtHR based its decision on the circumstance that the most appropriate place for exercising her right to family life was in the Netherlands, in particular because her parents were settled in the Netherlands and had been legally resident for years, and that two younger children had been born in the Netherlands and attended school there. 71

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Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application nos. 9214/80, 9473/81; and 9474/81, 28 May 1995. Gül v. Switzerland, Application no. 22676/93, 19 February 1996, paras. 32-38, Ahmut v. the Netherlands, Application no. 21702/93, 28 November 1996, para. 63. In the particular cases of Gül and Ahmut, the ECtHR found no violation of Article 8 ECHR. Sen v. the Netherlands, Application no. 31465/96, 21 December 2001.


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If, under those circumstances, the duty to respect the right to family life of Article 8 ECHR obliges a State to admit a person to its territory, a refusal of admission (including refusal at the border, of a visa or a long-term residence permit) should be considered a breach of the right under Article 8 ECHR. A procedure in which the individual seeks a remedy against this refusal therefore falls within the scope of Article 13 ECHR and should meet the criteria developed under the right to effective remedies. In both Haydarie v. the Netherlands and Tuquabo-Tekle and others v. the Netherlands, the Dutch government referred to the Banković judgment arguing that the application was incompatible ratione personae with the provisions of the ECHR, claiming that it was only in exceptional cases accepted that acts of Contracting States performed, or producing effects, outside their territories could constitute the exercise of jurisdiction by those States.75 Both cases concerned the denial of a provisional residence visa to family members of the applicants, and the claim of the applicants that this refusal implied a breach of their right to family life protected by Article 8 ECHR. According to the government, in the case of Tuquabo-Tekle, the refusal of a residence permit, “came nowhere near the kind of situation in which the Court had been prepared to accept extraterritorial jurisdiction under the Convention”. The Dutch government submitted that The State of the Netherlands had merely exercised its day-to-day responsibility for the regulation and control of the entry of aliens into its territory. To infer from such acts a direct responsibility of the State for the protection of the rights enshrined in the Convention towards all persons residing abroad who wished to enter the Netherlands would, according to the Government, extend the notion of jurisdiction to an unacceptable level.

In its decision, the ECtHR rejected this objection, because it had already decided on the admissibility of the case and the Dutch government had failed to submit the preliminary objection before this decision. However, in Haydarie v. the Netherlands the ECtHR, neglecting this “extraterritorial jurisdiction claim”, explicitly referred to the positive obligations of the contracting parties inherent in effective “respect” for family life. Stating that the essential object of Article 8 ECHR was to protect the individual against arbitrary action by the public authorities, the ECtHR underlined that, depending on the particular circumstances of the persons involved and the general interest, Article 8 ECHR may imply the State’s positive obligation to admit to its territory relatives of aliens having been granted residence rights. This implies the obligation of a contracting state to issue a residence permit to a person still outside the territory of that state.

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Tuquabo-Tekle v. the Netherlands, Application no. 60665/00, 19 October 2004; Haydarie v. the Netherlands Application no. 8876/04, 20 October 2005.

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The right to privacy and protection of personal data The powers of national authorities to collect, store or use personal information are limited by the right to privacy, protected by Article 8 ECHR and further developed in the case law of national courts, the ECtHR, and the ECJ. The collection and storage of a large amount of data, for a lengthy or even undefined period, may cause under certain circumstances a breach of the right to private life of the individuals concerned. These circumstances include, for example: if the data concern the past or political life of the person in question, if the data were not provided voluntarily, if the storage of these data has consequences for the daily life of the persons or limit their freedom of movement.76 The limitations formulated by the ECtHR apply on several grounds to our subject: the registration of third-country nationals in EU databases. In the first place, the ECtHR emphasised that surveillance measures such as the systematic collection and storage of personal information by governments fall within the scope of protection offered under Article 8 ECHR. Secondly, it is clear that the right to privacy is at stake if “sensitive” information such as biometric data is to be registered and used by consulates (or external service providers) when dealing with visa applications. Thirdly, the frequent controls to be performed on the basis of this registration may cause disproportionate interference with the traveller’s right to privacy, including his freedom of movement. This is especially the case when these controls are combined with practices often embarrassing for travellers, such as taking the person aside, questioning the person, collecting biometric data and carrying out body searches. The fact that databases such as SIS II and VIS (and possibly Eurodac) are to be used for both immigration law and criminal law purposes means that persons registered for immigration law purposes will be at greater risk of being affected by law enforcement measures or secret surveillance. Identity checks and the consultation of the above databases are generally based on data profiling. Using general criteria dealing with the “risk factors” of specific categories of persons, authorities place these groups of persons under extra surveillance. There is a significant tension between the non-discrimination principle protected in Article 14 ECHR and the fact that third-country nationals risk to be more exposed to supervision and control measures than EU citizens. Freedom of information and freedom of religion That under certain circumstance a refusal of access, and the issuing of a formal residence ban, may infringe the freedom of speech as protected in Article 10 76

I have dealt with this subject and jurisprudence of both courts in Evelien Brouwer, Digital Borders and Real Rights. Effective remedies for third-country nationals in the Schengen Information System, (Leiden: Martinus Nijhoff, 2008), chapters 6 and 7.


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ECHR, became clear in the ECtHR case of Piermont v. France.77 This case concerned a German member of the European Parliament, who was expelled and issued “a ban on re-entering” French Polynesia and New Caledonia (both overseas territories of France) by the French authorities because of her participation in anti-nuclear demonstrations. The Court concluded that both measures interfered with exercise of the right to freedom of expression, and that there had been a violation of Article 10 ECHR. In a case dealing with the refusal of entry of the leader of the Unification Church different national courts concluded that this refusal of entry resulted in a breach of Article 9 ECHR, protecting the freedom of religion.78 In Germany, the Constitutional Court ruled in November 2006 that the constitutional right to freedom of religion included not only the right to expression of that belief but also enabled certain religious practices, the content of which was mainly to be decided by the religious community itself.79 The question whether a personal encounter between a religious leader and its members was of specific importance for this religious movement, was not a matter to be decided by the governmental institutions. The Constitutional Court therefore criticised the fact that, in the judicial proceedings dealing with this matter, the Federal Administrative Court had made its own assessment of whether a meeting of the members of the Unification Church and their leader was of specific significance for their religious belief. More importantly, the Constitutional Court emphasised that the Federal Administrative Court did not assess whether the alert in the SIS was in accordance with the applicable laws. The Constitutional Court explicitly ruled that an SIS alert which is based on Article 96 (2) of the Schengen Implementing Convention (see above), requires the availability of “substantial grounds” that the presence of the third-country national poses a threat to public policy or security. In the same year, in a judgment of 6 December 2006, the Belgian Administrative Court of Appeal (Brussels) ruled that the Belgian religious organisation which was a member of the Unification Church could appeal against the refusal of entrance of their leader, Mr. Moon.80 The Court emphasised that the Belgian authorities refused entrance without knowing the reasons for the alert and without considering whether these reasons were in accordance with the criteria of Article 96 of the Schengen Implementing Convention. In its conclusion,

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Piermont v. France, Application no. 15773-74/89, 27 April 1995. For an extended analysis of these cases, see Evelien Brouwer The Other Side of Moon. The Schengen Information System and Human Rights: A Task for National Courts CEPS Working Document no. 288, Brussels: CEPS, April 2008, pp. 1–18, available at http://www.ceps.eu (accessed 4 November 2009). BVerfG 9.11.2006, BvR 1908/03, § 3. 2006-12-07, Cour d’Appel de Bruxelles, 2006/KR/223.

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establishing that the decision was insufficiently motivated and in breach of the limitation grounds of Article 9 ECHR, the court ordered the Belgian State to give Mr. Moon leave to enter Belgian territory for five days. The right to leave The right to leave any country, including his or her own is protected in Article 2 of the Fourth Protocol to the ECHR and in Article 12 (2) ICCPR.81 This right to leave is closely connected to the liberal notion of freedom of movement and the right to seek protection from political persecution or illiberal regimes.82 Unlike protection against refoulement, the right to leave is not an absolute right. Both the ECHR and ICCPR allow for limitations under certain circumstances, however, it is clear that these limitations should be interpreted narrowly.83 Focusing on the text of the ECHR, Article 2 of the Fourth Protocol provides that exceptions to the right to leave are legitimate as long they are necessary in a democratic society “in the interest of national security or public safety, for the maintenance of ‘ordre public’ for the prevention of crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.” The enumeration of these restrictions leaves some discussion on which goals are legitimate to restrict the right to leave: does this for example include the prevention of “brain drain” from the state of residence or nationality or the prevention from (irregular) immigration to another state? What is clear, however, is that restricting the right to leave should be proportionate and necessary with regard to the goal to be achieved. What is the relevance of the right to leave with regard to the actions of EU Member States and their agreements with third states, to prevent nationals or residents from those third states to leave for the EU territory? Dealing with the agreements of EU Member States with for example, Morocco, Libya, or Mauritania, of course only EU Member States are bound by the principles of the ECHR and its protocols. Does this mean the European states are also responsible under the ECHR for measures of other states restricting persons to leave the territory of that latter state? Can one derive from the ECHR an obligation for any contracting party to protect the right to leave, even if this concerns the right to 81 82

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International Covenant on Civil and Political Rights New York, 16 December 1966. For a historical overview and further analysis of the right to leave, see Galina Cornelisse, European Vessels, African Territorial Waters and ‘Illegal Emigrants’: Fundamental Rights and the Principle of (Il)legality in a Global Police of Mobility (Brussels: CEPS, Challenge Working Paper) at: http:// www.libertysecurity.org/article2365.html (accessed 4 November 2009). See the Strasbourg Declaration on the Right to Leave and Return, Meeting of Experts, International Institute of Human Rights, 26 November 1986, reprinted in Human Rights Law Journal 8 (1987): 478–480.


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leave from another country? In other words, are the activities of Contracting Parties to prevent (irregular) migration into their countries, to be considered as a violation of the right to leave when these measures do have the effect that persons are prevented from leaving their home country or country of transit? In the aforementioned judgment Xhavara v. Albania and France, the ECtHR rejected the applicability of the right to leave, stating that the measures taken by the Italian authorities were not aimed at preventing people from leaving Albania, but aimed at preventing these persons from entering Italy. One could argue, however, that “preventing entry” only applies to Member States’ actions at their own external borders and cannot be applied to every measure taken by EU Member States (or Frontex, dealt with above) within territorial or international seas: as they clearly envisage the prevention of people leaving third countries. It is difficult to understand why, if the extraterritorial jurisdiction or power of a Member State to prevent persons leaving a third state or international waters is to be recognised, why the same Member State cannot be held responsible for violations of human rights resulting from these preventive actions. Safeguarding the spirit and principles of the ECHR, one could argue that states cooperating or even initiating measures clearly infringing the right to leave of persons from other countries, must be held responsible for violations of this right. Considering the position of third states, it is important to note that the ICCPR has been ratified by Mauritania and Morocco, which means these countries are also bound to observe the right to leave of their nationals and inhabitants.84 Extraterritorial access to justice A further human right which may apply extraterritorially is that of access to justice. Article 13 ECHR provides that everyone whose rights and freedoms protected in the ECHR are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. For the application of Article 13 ECHR, it is not necessary for the applicant to establish the violation of such a right either by national courts or by the ECtHR. It is sufficient for the applicant to have an “arguable claim” that there has been a breach of one of the right or freedoms of the ECHR.85 Furthermore, the ECtHR emphasised in several judgments that the right to

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Libya is party to the ICCPR and the first Protocol to this Treaty, but did not ratify the Geneva Convention on the protection of refugees, causing particular problems when dealing with the protection of refugees within the cooperation of EU Member States with this country. Silver and others v. the United Kingdom, 25 March 1983, no. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75.

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effective remedies should be interpreted in a flexible manner and without excessive formalism.86 Even if an applicant does not refer explicitly to his or her right under the ECHR which is allegedly infringed, the ECtHR accepts the claim if its content covers this breach of human rights. In a wide range of judgments by the ECtHR Article 13, in combination with other ECHR rights, has been applied to decisions made in immigration law procedures. In Jabari v. Turkey, the ECtHR applied Article 13 together with Article 3 ECHR, to assess whether the judicial review proceedings which were available to the applicant in Turkey satisfied the requirements of effective remedies.87 In this case, the applicant – whose application for asylum had been rejected – claimed that her life would be at risk if she were deported to Iran. Where an individual is refused a visa, a residence permit or entry or when his expulsion or detention infringes one of the human rights protected in the ECHR, the limited possibilities for challenging such a refusal may violate the right to an effective remedy under Article 13 ECHR.88 With regard to immigration law decisions, Article 13 ECHR has been applied in conjunction with Article 8 ECHR with regard to refusal of admission or an expulsion order in breach of the applicant’s right to family life (Sen); with Article 3 in expulsion cases (Al-Nashif, Čonka, Chahal); with Article 4 of Protocol no. 4 on the prohibition of collective expulsion (Čonka), and regarding the freedom of speech protected in Article 10 ECHR (Piermont).89

6. Conclusion: protecting human rights abroad There can be little doubt about the commitment of the EU and its Member States towards the protection of human rights within but also outside the EU. This follows in the first place from Article 6 of the EU Treaty, the adoption of the EU Charter on Fundamental Rights, and the jurisprudence of the ECJ affirming the duty of EU Member States to protect human rights when implementing EU or EC law. Secondly, as we have seen above, many of the different instruments envisaging “extraterritorial border controls” refer to the human right obligations

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Cardot v. France, 19 March 1991, no. 11069/84, § 34, Castells v. Spain, 23 April 1992, no. 11798/85, § 27, Geouffre de la Pradelle v. France, 16 December 1992, no. 12964/87, § 26. Jabari v. Turkey, 11 July 2000, no. 40035/98. See also Ryszard Cholewinski, “No Right of Entry”, in In Search of Europe’s Borders, ed. Kees Groenendijk, Elspeth Guild and Paul Minderhoud (The Hague: Kluwer, 2003), 108–109. Sen v. the Netherlands, 21 December 2001, no. 31465/96, Al-Nashif v. Bulgaria, 20 June 2002, no. 50963/99, Chahal v. the United Kingdom, 15 November 1996, no. 22414/93, Čonka v. Belgium, 5 February 2002, no. 51564/99, Piermont v. France, 27 April 1995, no. 15773-74/89.


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of the Member States involved, and also of EU agencies such as Frontex. Furthermore, in the 2008 annual report on human rights, the Council affirmed that the “promotion and protection of human rights and fundamental freedoms, democracy and the rule of law are principles which the European Union is determined to taken into account not only in its internal policies but also in its external relations”.90 In this contribution, I have tried to establish that the question of responsibility of EU Member States under the ECHR should not be interpreted too narrowly using the definition of “jurisdiction” as applied by the ECtHR in Banković. This judgment does not detract from the general human rights obligations of EU Member States under the ECHR, including for example the positive obligations recognized by the ECtHR on the basis of Article 8 when considering visa applications for the purpose of family reunification. Again, the responsibility of Member States for either their extraterritorial acts or extraterritorial effects of their national acts can be derived from the general application human rights in the legal framework of the EU. To ensure that individual rights abroad are not only legally but also practically protected, it is important to raise awareness about the existence of human rights obligations, including its sources, the circumstances in which those rights can be invoked and the remedies which invoking those rights could entail.91 This requires in the first place, practical measures: assisting NGOs, and training consular staff, border guards and agents of third countries cooperating with EU Member States. As proposed by Jeandebosz, both NGOs and Frontex could play an important role in contributing to the protection of rights of individuals, not only by training, but also by organising and providing legal aid.92 In this contribution, I have highlighted the special vulnerability of personal data, especially when used in the course of immigration law procedures and when large-scale databases set up for this purpose are to be used outside the territory of EU. The responsibility of the EU and its Member States for data protection and other human rights does not stop at the borders. It is a hopeful sign that the European Commission underlined this in the Communication published in June 2009 in view of the new Stockholm program: The area of freedom of security and justice must above all be a single area in which fundamental rights are protected, and in which respect for the human person and 90 91 92

Council document 14146/2/08, 27 November 2008. See Steve Peers (2006), p. 137. Julien Jeandesboz, Reinforcing the Surveillance of EU Borders. The Future Development of Frontex and EUROSUR, (Brussels: CEPS Research Paper No. 11, August 2008), 17, available at http:// www.ceps.eu (accessed 4 November 2009).

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human dignity, and for the other rights enshrined in the Charter of Fundamental Rights, is a core value. For example, the exercise of these freedoms and the citizen’s privacy must be preserved beyond national borders, especially by protecting personal data: allowance must be made for the special need of vulnerable people: and citizens must be able to exercise their specific rights to the full, even outside the Union.93

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COM (2009) 262, p. 5.

Extraterritorial Border Controls in the EU: The Role of Frontex in Operations at Sea Anneliese Baldaccini* 1. Introduction The establishment of migration control measures in areas beyond State borders is part of the EU border management strategy. These measures are implemented by individual Member States and in joint operations involving several EU States and/or third States coordinated by Frontex, the EU Border Agency. The current focus of EU policy is particularly the reinforcement of border protection and management along the EU’s southern maritime borders, where in recent years the pressure of irregular migration from North African and Sub-Saharan countries has been growing, as has the death toll of migrants attempting the journey on unseaworthy boats.1 This paper will assess Frontex’s sea operations and consider the legal and jurisdictional aspects of maritime border control as operated by this Agency. EU cooperation in this area is based on operational plans but also involves Community law and international obligations that are binding on Member States. There are special concerns for human rights protection in connection with Frontex-led sea operations. These arise from the fact that it is not clear how the guarantees and protections under the EU legal framework can be applied to joint border operations, or how compliance with international obligations with regard to the conduct of these operations and the handling of

* Anneliese Baldaccini was previously a Committee Specialist for the House of Lords Select Committee on the European Union, in which capacity she helped prepare its report on Frontex: The EU External Borders Agency (March 2008). The views expressed herein are personal to the author. 1 The International Centre for Migration Policy Development (ICMPD) has estimated that some 100,000 to 120,000 irregular migrants coming from sub-Saharan Africa, the south and east Mediterranean and other, mainly Asian and Middle Eastern countries, cross the Mediterranean each year. Further estimates indicate that over the last decade a total of at least 10,000 persons have died trying to cross the Mediterranean and reach Europe’s southern shores: ICMPD, Irregular transit migration in the Mediterranean—some facts, futures and insights (Vienna, 2004). Bernard Ryan, Valsamis Mitsilegas, Extraterritorial Immigration Control, pp. 229–256. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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migrants who are intercepted and rescued at sea can be monitored. There are also questions as to the extent to which Frontex, as an Agency of the EU, is itself responsible for ensuring that operations are respectful of human rights. The common wisdom is that Frontex is a technical actor with a focus on coordination and facilitation and that the overall responsibility for protection of the external borders still rests firmly with the Member States. However, Frontex’s mandate and governance structure, and its practice, suggest otherwise. While Frontex has clearly not (yet) taken over responsibility for guarding the external EU borders, the establishment and development of Frontex does represent a shift in the exercise of powers which are traditionally the domain of the State, without there being the same degree of legal and political accountability that Member States’ authorities would be subjected to in the domestic sphere. The lack of clarity and transparency regarding the exact scope of Frontex’s coordinating role, and the way in which Frontex operations are conducted make it difficult to establish which authority can ultimately be held responsible by an individual. In addition, when sea operations are shifting further beyond the external EU borders – into the high seas or the territorial waters of third countries – the very possibility of legal protection of an individual becomes chimerical.

2. The establishment of Frontex, the EU Border Agency Frontex, the EU Border Agency, was established on 1 May 2005 by Council Regulation 2007/2004, and started work on 3 October 2005.2 It is an Agency of the Community with headquarters in Warsaw. Its main task is to co-ordinate joint operations by Member States at the external sea, land and air borders of the EU. Other tasks specifically set out in the Regulation concern the training of border guards, undertaking risk analysis, the development of research relevant for control and surveillance of external borders, technical and operational assistance to Member States at the external borders, and support for Member States in joint return operations.3 The Agency is led by an Executive Director and a Management Board4 and is endowed with a budget.5

2

3 4 5

Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2004] OJ L 349/1. Regulation 2007/2004 Article 2(1). Regulation 2007/2004 Chapter IV, Arts.29-32. Regulation 2007/2004 Chapter III, Arts.15-28.

Extraterritorial Border Controls in the EU

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The case which eventually led to the establishment of Frontex was first made in the Commission Communication of 2002 entitled Towards integrated management of the external border of the Member States of the European Union.6 This Communication responded to a call by the December 2001 European Council in Laeken to work out arrangements for cooperation between services responsible for external border control, and to examine the conditions in which a mechanism or common services to control external borders could be created.7 In 1999, the Amsterdam Treaty then coming into force had incorporated the Schengen acquis into the institutional framework of the EU and laid down the legal basis for the strengthening of common external border checks.8 Furthermore, it was expected that there would be increased pressure on the external borders with future enlargement. Time was, therefore, ripe for more co-ordination between Member States’ border check practices and for developing an overall strategy for the external frontiers of the EU. In the Communication, the Commission set out a longer term programme which included a common body of legislation, operational cooperation between Member States and solidarity between Member States and the Community – all of which would eventually lead “towards a European Corps of Border Guards”.9 The institutional and legal nature of this structure was believed then to require amendment of the Treaties. The Commission highlighted that legislative action was also needed to determine the powers that might be conferred on a European Corps of Border Guards and the geographical boundaries within which such a European Corps would be entitled to operate. Legislative measures were to provide clarity and legal certainty as to the missions of the European Corps, “not forgetting the required democratic and jurisdictional control which should accompany these.”10 The Commission further recognised that “the main difficulty to be overcome in establishing a European Corps of Border Guards is connected with conferring the prerogatives of public authority on staff of the European Corps who do not have the nationality of the Member State where they are deployed.”11 This was considered to be a fundamental question on constitutional grounds. This early analysis

6 7 8

9

10 11

COM(2002) 233 final, 7 May 2002. See Conclusion No. 42 of the Laeken European Council of 14 and 15 December 2001. See Article 62(2) EC Treaty requiring the Council to adopt measures “on the crossing of the external borders of the Member States which shall establish (a) standards and procedures to be followed by Member States in carrying out checks on persons at such borders”. COM(2002) 233, p. 12. The goals of the 2002 Communication are believed to have been broadly met with the entry into force of the Schengen Border code, the establishment of Frontex and the External Borders Fund. See COM(2006)733 final, 2. COM (2002) 233, 21. Ibid.

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by the Commission is interesting in the light of subsequent developments, which have seen the rapid development of mechanisms for operational cooperation in the absence of any solutions being found for the legislative, jurisdictional and accountability problems identified. The measures proposed by the European Commission became part of the Action Plan for the management of external borders agreed by the Council on 13 June 2002.12 The Action Plan, however, stepped back from the idea of establishing a European Border Guard. Most of the Member States were concerned that such a body would supplant their sovereign power to control borders.13 The course of action favoured was to establish in the short term practical co-operation structures, while the Commission was to continue to explore the advisability of what had by then been renamed a European Border Police.14 In June 2003, the Thessaloniki European Council invited the Commission “to examine in due course […] the necessity of creating new institutional mechanisms, including the possible creation of a Community operational structure, in order to enhance operational cooperation for the management of external borders.”15 Amidst differing views on the role and powers of an EU border control body, the Commission brought forward the proposal for a Regulation on the establishment a European Border Agency in November of the same year.16 Frontex’ role and powers Perhaps not surprisingly, given Member States’ reservations about a dedicated institutional structure for the external borders, there is a degree of ambiguity over the Agency’s role and powers inscribed in the founding Regulation. The legal basis for the establishment of Frontex is Article 62(2)(a) of the EC Treaty

12 13

14 15 16

Council document 9834/1/02. See Valsamis Mitsilegas, “Border Security in the European Union: Towards Centralised Controls and Maximum Surveillance,” in Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy, ed. Anneliese Baldaccini, Elspeth Guild and Helen Toner (Oxford: Hart Publishing, 2007), 363. Presidency Conclusions, Seville European Council, 21-22 June 2002, para.31. Presidency Conclusions, Thessaloniki European Council, 19-20 June 2003, para.14. COM(2003) 687 final, 11 November 2003. The Communication was preceded by a feasibility study on the control of the European Union’s maritime borders carried out by CIVIPOL (Council document 11490/1/03). Measures concerning maritime borders should also be seen in the wider context of the Green Paper on a future EU Maritime Policy concerning a broader rationalisation of EU Governments’ off-shore activities and convergence of surveillance systems: see COM(2006) 275 final.


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which concerns common standards and procedures in relation to checks on persons crossing the external borders, and Article 66 EC Treaty on measures to ensure administrative cooperation between Member States in the areas covered by Title IV (visa, asylum, immigration and other policies related to free movement of persons). The stated purpose of Frontex, however, goes much wider. Under the terms of the Regulation, Frontex was established for the purpose of “improving the integrated management of the external borders of the Member States of the European Union.”17 The notion of ‘integrated border management’ is not formally defined in the Regulation but elsewhere, in a Council document adopted under the Finnish Presidency at the end of 2006. This document provides a conceptual framework for integrated border management encompassing border checks and surveillance, the four-tier access control model (in third countries, cooperation with neighbouring countries, at the EU external border and within the free movement area), cross-border crime investigation, interagency and international cooperation (border guards, customs, police, national security and other relevant authorities), and ensuring coordination and coherence of actions at EU level.18 Integrated border management in practice involves the de-territorialisation of borders and the setting up of a continuum of risk filters from the third country to the heart of the EU. In the context of the Regulation establishing Frontex, it suggests that the Agency’s role could be adapted to a variety of border management functions beyond those more closely related to the control on persons and surveillance of the Union’s external borders. Control and surveillance is, however, what the legal bases under which the Agency is established and the explicit tasks envisaged in the Regulation would arguably restrict it to. There is also uncertainty in the demarcation of responsibilities between Member States and the Agency in operational activities. On the face of it, the Regulation limits Frontex’s authority by establishing that “the responsibility for the control and surveillance of external borders lies with Member States” and assigning the Agency a coordinating role of Member States’ action relating to the

17 18

Regulation 2007/2004 Article 1. See Conclusions of the Justice and Home Affairs Council meeting of 4-5 December 2006, preceded by the draft Council Conclusions on Integrated Border Management, document 14202/06, 19 October 2006. There has been mention of integrated border management previously in the EU policy context, notoriously in the 2002 Commission Communication mentioned above, but what the concept meant was not then explained. See also Peter Hobbing, Integrated Border Management at EU Level (Brussels: CEPS, 2005) and Sergio Carrera, The EU Border Management Strategy – FRONTEX and the Challenges of Irregular Immigration in the Canary Islands (Brussels: CEPS, March 2007).

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management of external borders.19 The Agency facilitates and coordinates operational cooperation between Member States and responds to requests from Member States for technical and operational assistance in border control and surveillance matters.20 However, it is also tasked with carrying out risk analysis to allow Member States and the Community to take appropriate measures or to tackle identified threats. In practice, the Agency’s operational activities are planned on the basis of these risk analyses, not on the basis of Member States’ political considerations.21 When the latter overrule decisions based on risk analysis, this is seen as a problem.22 This means that Frontex effectively initiates the coordination that it engages in, and that its responsibilities derive from its planning and coordinating role. Furthermore, under the terms of the Regulation, the role of Member States vis-à-vis Frontex is to supplement or complement activities carried out by Frontex, and to refrain from activities that can jeopardise the functions of the Agency.23 This rather suggests a reduction of State autonomy in this field. The operational role of Frontex, rather than merely a ‘facilitating’ one, can be deduced by other articles in the founding Regulation, such as Article 10 which makes provision for the exercise of executive powers by the Agency’s staff and by the Member States’ experts acting on the territory of another Member States (subject to the national law of that Member State); Articles 13 and 14 empowering the Agency to cooperate with third countries and organisations in the framework of working arrangements; and Article 8(3) allowing the Agency to own operational resources and assets. Amendments to the Regulation establishing Frontex adopted in 2007 have reinforced the operational and Community character of the Agency.24 The tasks and powers of officers participating in Frontex operations now include active border guard activities as set out in the Schengen Border code, such as investigating nationality, stamping passports and preventing illegal border crossing.25 Officers participating in Frontex operations may perform border police tasks in

19 20 21

22 23 24

25

Regulation 2007/2004 Article 1(2). Regulation 2007/2004 Article 8(1). For a description of the standard procedure for the preparation of Frontex joint operations, see the evaluation report of Frontex carried out by an external contractor (COWI evaluation report), 34-35. The report was issued on 15 January 2009 and is available from the Frontex website. See COWI evaluation report, 41. Regulation 2007/2004 Article 2(2). Regulation (EC) No 863/2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers [2007] OJ L 199/30. Regulation 863/2007 Article 12, amending Article 10 of the Frontex Regulation.


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line with those of the host officers under the command of the border police authority of the host country. As the German Presidency of the EU put it, in the first semester of 2007 when the amending Regulation was negotiated, entrusting host officers with executive powers “breaks a taboo at the European level” as it means that the guest officers are no longer restricted to purely advisory functions, but can be deployed and perform border police tasks together with the host officers.26 Under the amending Regulation, officers in action are to be bound by Community law and instructions of the host Member State, but remain under the disciplinary law of their home Member State.27 The same amending Regulation has also conferred a degree of coercive power over Member States upon the Agency, when organising the deployment of Rapid Border Intervention Teams (RABITs) – the specially trained experts from Member States who can be deployed at short notice to deal with an urgent and exceptional migratory pressure at the external borders. The deployment of RABITs has become an additional task of the Agency. It strengthens the authority of Frontex vis-à-vis Member States given that RABIT operations are based on the principle of ‘compulsory solidarity’: Member States must make border guards available for a RABIT deployment at the request of the Agency “unless they are faced with an exceptional situation substantially affecting the discharge of national tasks.”28 There was a sense of urgency when the Regulation establishing RABITs was negotiated and finally adopted in the summer of 2007, but there has not been a case at the time of writing in which a Member State has requested the intervention of a RABIT. The question of the extent to which Frontex has executive powers and an autonomous role in operational activities is not merely academic, but is fundamental to establishing the extent to which the Agency shares responsibilities under the applicable legal frameworks with the Member States participating in the joint operation. Although it is stressed at every stage and by every institution that borders remain the responsibility of Member States, Frontex represents a substantial shift from the previous intergovernmental approach to external borders management to a more supranational one.29 This shift is underplayed by presenting ‘border management’ in the Frontex Regulation as a largely technocratic task, but the underlying sensitivities of this project are evident, not least in the structure of Frontex’s governance: the Agency is a body of the Community, 26

27 28 29

See: http://www.eu2007.de/en/Policy_Areas/Justice_and_Home_Affairs/Home_Affairs.html#fr (accessed 4 November 2009). Regulation 863/2007 Article 10. Regulation 863/2007 Article 4(3). See Andrew Neal, “Securitization and Risk at the EU Border: The Origins of FRONTEX,” Journal of Common Market Studies 47 (2009): 333, at 343.

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under budgetary control of the European Parliament, but is managed by a board which comprises the Member States’ heads of national border guard services and two Commission officials. This mixture of intergovernmental and Community governance raises central questions about Frontex’s political and legal accountability: is Frontex’s accountability structure sufficient to secure democratic decision-making and to protect the rights and freedoms of individuals? Are national parliaments and the European Parliament in a position to scrutinise adequately current measures and proposals in the field of border management? What are the venues for legal protection of the individual? It is to these questions that we will now turn. Accountability and legal protection The lack of an institutional mechanism of prompt democratic oversight over the operational activities of Frontex has been much criticised.30 Indeed, there is no developed framework for the accountability of Frontex operations. The Agency’s Director is accountable to the Management Board, which is mainly composed of Member State officials on behalf of which the Agency is acting. Public accountability is limited to the adoption by the Management Board of an annual report which is to be submitted, amongst others, to the Council, the Commission and the European Parliament.31 Provision is also made for submission of an annual work programme.32 An independent external evaluation is to be commissioned by the Management Board within the initial three years of activities.33 Accounts are audited by the European Court of Auditors. The European Parliament has control of the budget but can do little in terms of ensuring that Frontex is held accountable for the manner in which it fulfils its mandate, including compliance with Community and international human rights law. It has informal ways of supervising the work of the Agency, in particular by summoning the Executive Director to report and answer questions, but there is no formal requirement for this in the law. In fact, senior officials of the Agency have declined in the past to participate in a hearing organised by the Committee on Civil Liberties Justice and Home Affairs (LIBE Committee) on the specific question of the management of the southern maritime borders.34 30

31 32 33

34

See, for instance, the Standing Committee of experts on international immigration, refugee and criminal law (Meijers Committee) letter to the LIBE Committee of 4 April 2008. Regulation 2007/2004 Article 20(2)(b). Regulation 2007/2004 Article 20(2)(c). Regulation 2007/2004 Article 33. This evaluation was carried out by an external contractor, COWI, and a report published in January 2009. See above, note 21. House of Lords European Union Committee, 9th Report of Session 2007-08, FRONTEX: the EU external border agency, para. 85.


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This accountability deficit is further compounded by lack of detailed information concerning Frontex activities. The founding Regulation does envisage the need for transparency for such a body and clarifies that the public or any interested party must be given prompt, objective, reliable and accessible information with regard to its activities.35 Some, extremely superficial, information is provided on the Frontex website where it is also possible to retrieve its annual report and work programme. Aside from that there is no access to more detailed information on Frontex activities and operations. Furthermore, the working arrangements with third countries and international organisations are difficult or impossible to obtain and the operational agreements under which the Agency carries out its operations are shred in secrecy. With regard to legal accountability, the Frontex Regulations do not establish a special legal process before the European Courts for legal protection against unlawful actions by border control guards where they participate in Frontex operations. Jurisdiction is supposedly exercised by Member States and, in the context of joint operations, responsibility for legal protection at first instance lies with the national court of the host Member State.36 Member States are also subject to the control of the European Court of Justice (ECJ) for actions at their borders in application of Community law,37 and are answerable to the European Court of Human Rights for actions of their authorities which engage fundamental rights protected by the European Convention on Human Rights (ECHR). The Frontex Regulations entail the delegation of powers to a Community Agency in an area which had hitherto been the sovereign prerogative of Member States, yet the European courts are at present unable to react to potentially unlawful practices of the Agency. The lack of specific jurisdiction concerning Frontex will be addressed to some extent with the coming into force of the Treaty of Lisbon – the Treaty that is reforming the founding Treaties of the Union – as the ECJ will be empowered to review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.38 As noted by commentators, this will mean that agencies like Frontex will not be exculpated from claims against their legal acts for or in the name of the EU.39 35 36

37 38

39

Regulation 2007/2004 Article 28(2). See Andreas Fischer-Lescano, Tillmann Löhr and Timo Tohidipur, “Border Control at Sea: Requirements under International Human Rights and Refugee Law”, International Journal of Refugee Law 21 (2009): 256, at 294. Article 68 EC Treaty. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ C 306 of 17 December 2007. See Article 263 in the consolidated version of the Treaty on the Functioning of the European Union [2008] OJ C 115/47. See Fischer-Lescano et al, above n. 36, 295.

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Under the integrated European border control regime, which involves the transfer of competences to Frontex, Member States would arguably also transfer part of their answerability under the ECHR to the EU. The position adopted by the Strasbourg Court is, however, that Contracting Parties cannot, by transferring powers to an international institution, evade their own responsibility under the ECHR and their answerability towards the European Court of Human Rights.40 Moreover, the Convention organs have declared themselves competent to exercise a form of ‘indirect’ review of acts of EC/EU bodies to the extent the Member States implement such acts.41 Although to a large extent the ECJ itself has supervision of EU/EC acts for conformity with fundamental rights principles, this will not necessarily lead to a result equal to supervision by the European Court of Human Rights. This gap will be filled with accession by the EU to the ECHR – another change which will be enabled with the entry into force of the Lisbon Treaty.42 Accession to the ECHR will strengthen legal accountability of Frontex as an agency of the Union by making it directly accountable before the European Court of Human Rights for violations of fundamental rights protected under the ECHR. Establishing proper public and legal accountability with respect to Frontex is of critical importance given that there is profound concern on the human rights impact of its operations, particularly the operations which are conducted at sea. The next section will detail some of the most prominent Frontex-led sea operations before considering the legal and jurisdictional issues that arise from them.

3. Frontex joint operations at sea Since its establishment and up to the end of 2008, Frontex is reported to have coordinated 50 joint operations and 23 pilot projects covering land, air and sea borders.43 Frontex spends half of its budget on operations, and almost two thirds of the total operational expenditure is taken up by sea operations.44 Although only a small fraction of the overall irregular migration to the EU

40

41

42

43

44

See Waite and Kennedy v Germany (1999) para.67; Matthews v United Kingdom (1999), para. 32: “Member States’ responsibility therefore continues even after such a transfer”. The extent of the Strasbourg Court jurisdiction over acts of EC/EU bodies was clarified in the Bosphorus Airways judgment of 30 June 2005. See new Article 6 in the consolidated version of the Treaty on European Union, [2008] OJ C 115/13. See European Commission, Third annual report on the development of a common policy on illegal immigration, smuggling and trafficking of human beings, external borders, and the return of illegal residents, SEC(2009) 320 final, p. 1. COWI evaluation report, above n. 21, p. 25.


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occurs through the EU’s maritime borders, there has been much focus on sea operations. This is due particularly to media and dominant policy discourses which convey an apocalyptic image of a continuous and raising flow of irregular migrants from Africa crammed on unseaworthy boats attempting to reach the shores of Spain, Italy, and Malta.45 This has meant that, within a relatively short time of its establishment, Frontex has come under pressure to provide a solution to the continuous emergencies in the southern maritime borders of the EU. The following is a description of the most important sea operations carried out by Frontex so far. Joint Operation Hera Joint Operation Hera started on 17 July 2006 and ended in 31 October 2006. It was requested by the Spanish authorities to assist with the continuous and increasing arrival of migrants on fishing boats to the Canary Islands from African countries. The operation took place in two phases: the first involved the deployment to the Canary Islands of experts from various Member States to assist with the “identification” (presumably the establishment of the nationality) of undocumented migrants. According to data released by Frontex, all 18987 irregular migrants who arrived at the Canary Islands in that period were successfully identified by Frontex experts and the Spanish authorities and 6076 were sent back.46 The second phase (Hera II) consisted of a joint sea surveillance operation, which took place between August and December 2006 and brought together technical border surveillance equipment from several Member States to enhance control of the area between West Africa and the Canaries. This operation took place for the first time in the territorial waters of third countries – Senegal and Mauritania – and was carried out in close cooperation with them on the basis of bilateral agreements of these States with Spain. Seven Member States participated with vessels and aircraft. The operation was coordinated by Frontex with a total budget of € 3.5 million. During this operation, 3887 migrants from a total of 57 cayucos or pateras (small wooden boats) were intercepted close to the African coast and diverted.47 Another sequel of Hera (Hera III) started in February 2007 and ran for two months. It involved both expert assistance to establish identity and to track facilitators, and joint aerial and naval patrols, carried out with Senegalese

45

46 47

See research report by Hein de Haas, The myth of invasion – Irregular migration from West Africa to the Maghreb and the European Union (Oxford: International Migration Institute, October 2007). http://www.frontex.europa.eu/newsroom/news_releases/art8.html (accessed 4 November 2009). Ibid.

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authorities, to intercept and divert boats.48 During this period, a total of 1167 migrants were diverted back to their points of departure at ports at the West African coast. Hera is now run as a longer term operation, which means operations are carried out in several phases throughout the year, according to Frontex risk analysis which determines peaks of demands in the area. During Joint Operation Hera 2008, which ran from February to December 2008, 5969 migrants were diverted back and 360 facilitators were arrested.49 The main nationalities involved were migrants from Liberia, Mauritania, Senegal and Guinea.50 Hera has been the most expensive single operation so far amounting to €10 million.51 Joint Operation Nautilus Operation Nautilus, first conducted in October 2006 and then re-enacted in various phases between June and October 2007 (Nautilus 2007), was requested by Malta and aimed at strengthening the control of the Central Mediterranean maritime border against irregular migrants from Libya headed for Italy and Malta. At its height, nine Member States were involved with four offshore patrol vessels, six coastal patrol vessels, three helicopters and four aircraft. About 3000 migrants were intercepted, one third in the operational area and two third outside it.52 In May 2008, another sequel, Nautilus 2008, received the go ahead. The mission had been on hold due to disagreement amongst participating Member States over the responsibility for migrants saved at sea. Nautilus 2008 was planned to last some 23 weeks with a budget of more than € 8 million.53 The operation finished in October 2008. Frontex statistics published on its website reveal that during that period 2321 people arrived in Malta and 16098 in Italy. No migrant was diverted back or deterred, and 15 facilitators were arrested.54 The main nationalities of those embarking on journeys headed for Italy and Malta were (in decreasing order) migrants from Nigeria, Eritrea, Somalia, Tunisia, Bangladesh, and Ghana.55

48 49 50

51 52 53 54 55

http://www.frontex.europa.eu/newsroom/news_releases/art21.html (accessed 4 November 2009). http://www.frontex.europa.eu/newsroom/news_releases/art40.html (accessed 4 November 2009). See letter of 21 January 2009 to Ms Barrett-Brown, Immigration Law Practitioners’ Association (ILPA), UK, from Gil Arias, Deputy Executive Director, Frontex. COWI evaluation report, above n. 21, p. 38. Frontex Press Kit, volume 2/11, issue 1. http://www.frontex.europa.eu/newsroom/news_releases/art36.html (accessed 4 November 2009). http://www.frontex.europa.eu/newsroom/news_releases/art40.html (accessed 4 November 2009). Letter of 21 January to ILPA, above n. 50.


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Joint Operation Poseidon Operation Poseidon covers land borders between Greece and Turkey, Greece and Albania, Bulgaria and Turkey, and the Eastern Mediterranean Sea.56 The first in the series of Operations Poseidon took place in June – July 2006 and saw the participation of liaison officers from Austria, Italy, Poland and the United Kingdom. During this period, 422 persons trying to travel illegally were detected. This was followed by Poseidon 2007, which took place on 15 May – 3 June 2007. During the sea part of the operation, 910 illegal immigrants were intercepted, 194 forged or falsified travel documents were detected, 88 illegal immigrants were diverted to the country of departure and 13 facilitators were arrested. The main nationalities of irregular migrants identified during the operation were Afghanistan, Somalia, Iraq and Albania. Another Poseidon 2007 was carried out in the same area from 26 June to 15 July 2007. During the second stage, 673 illegal immigrants were apprehended and 14 facilitators arrested. A total of 248 illegal immigrants were diverted back to the Turkish coast whilst 225 forged and or falsified documents were detected. Frontex experts deployed in the framework of such joint operations interview a fraction of the persons who are intercepted – about 10%. There is care in public statements to underline that such interviews are carried out for intelligence purposes, not identification, and that the experts do not interview persons who have asked for asylum.

4. Assessment of Frontex Joint Operations A lot is made of the success of Frontex-coordinated sea operations in disrupting irregular migration routes. For instance, in April 2007, the Agency was credited with the 60% drop of boat-born migrants arriving to the Canaries in the first quarter of the year compared to the same period in 2006, and with the nearhalving of the number of irregular migrants crossing the central Mediterranean.57 An evaluation report published in February 2008 by the Commission considered the quantifiable results of the operations carried out so far by Frontex “impressive”: it reported that in 2006-07 more than 53,000 persons were apprehended or denied entry at the border during these operations, more than 2,900 false or

56

57

http://www.frontex.europa.eu/examples_of_accomplished_operati/art8.html (accessed 4 November 2009). “EU border agency cuts African migrant numbers”, Eurobserver.com, 13 April 2007. See also The Economist’s Special report on migration, 5 January 2008.

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falsified travel documents detected and 58 facilitators of illegal migration arrested.58 Evaluations such as these, however, emphasise outputs rather than assessing the impact of Frontex operations: all that is provided are headcount figures on the number of people diverted back or deterred, and the number of facilitators arrested. Data on the makeup of the groups of people involved – their age, gender, how many of them had protection concerns – are not included, let alone what happened to the people intercepted or diverted or where they were returned or diverted to. There is legitimate concern over this lack of information given that Eurostat data for 2008 reveal, for instance, that 52% of migrants who applied for asylum in Malta were granted refugee or subsidiary protection status.59 The point is made elsewhere in this volume that participation in a joint operation designed to prevent access to persons to a State in which they receive protection in very high percentages raises serious questions about compliance with obligations under international refugee law.60 Moreover, even conceding the reduction over time of irregular migration in the specific area of operation, some of this decrease will have been due simply to displacement, i.e. migrants using other, often more dangerous, routes. In 2003, research concluded, for instance, that the West African migration route became increasingly popular due to the increased deterrent effect of the improved surveillance mechanisms of the Spanish authorities in the Strait of Gibraltar.61 The passage from Mauritania, the Cape Verde and Senegal towards the Canary Islands is significantly longer and riskier. A similar shift in migration routes has taken place with regard to irregular migration from Libya towards Italy. Increased surveillance of the Sicilian Channel has diverted illegal migrants to the considerable longer passage through the Gulf of Sirte.62 There is recognition of the displacement effect of Frontex operations and it is seen as a weakness to be addressed by repetition of operations on a more regular basis, which explains the current trend

58

59

60 61

62

Report on the evaluation and future development of the FRONTEX Agency, COM (2008) 67 final, para. 9. Eurostat newsrelease, Asylum in the EU in 2008, STAT/09/66, 8 May 2009. These statistics are the first fruits of Regulation (EC) No 862/2007 of 11 July 2007 on Community statistics on migration and international protection [2007] OJ L 199/23. Didier Bigo and Elspeth Guild in this volume. See Feasibility study on the control of the European Union’s maritime borders, research carried out by CIVIPOL, above n. 16, p. 15. See Standing Committee of experts on international immigration, refugee and criminal law (Meijers Committee), “Comment on a proposal for a regulation establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism”, 24 October 2006, available at http://www.commissiemeijers.nl (accessed 4 November 2009).


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towards more long-lasting operations.63 However, nowhere in the evaluation exercises carried out so far is there appreciation about the higher risks to migrants’ lives involved in disrupting and displacing migration routes. The recent external evaluation report makes other interesting considerations regarding the impact of Frontex operations. It concludes that Frontex has an obvious operational impact in terms of scale (numbers of countries involved) and number of operations.64 However, in terms of actually controlling migration the assessment is rather mixed: Frontex operations might have an immediate effect in increasing apprehension and reducing migratory pressure but this effect wanes as soon as the operation is terminated. In the case of sea operations, another effect is noticeable, as the report puts it, that “increased patrolling might actually increase the flow as the migrants recognise that they have a better chance of surviving their dangerous voyage and run no risk of refoulement.” This leads the evaluators to the perverse conclusion that “the operations have a positive impact on the human rights of the migrants as they see their chances of survival increasing!” 65 This statement reflects a widely held perception that Frontex is purely a “technical actor”, not subject, that is, to obligations under international law which fall upon the Member States participating in Frontex coordinated joint operations.66 Frontex’s main task is to coordinate operations which protect the external borders of the EU. The humanitarian aspects of its work are incidental to its operations often unavoidably (and for some irritatingly) turning into search and rescue missions and limited to preventing people from drowning.67 Clearly, States participating in Frontex joint operations cannot circumvent refugee law and human rights requirements by declaring border control measures to be rescue measures. The available information does not, however, allow either an assessment of whether Frontex operations at sea are effective in meeting the human needs of migrants, or whether Member States participating in them are meeting their obligations under international human rights law. Reports by independent organisations suggest that this is not always the case. They reveal that there are serious violations of human rights in the areas covered by Frontex

63 64 65 66

67

COWI evaluation report, above n. 21, p. 42. Ibid. COWI evaluation report, above n. 21, p. 43. Col. Laitinen, Executive Director of Frontex, in evidence to the House of Lords European Union Committee, 32nd Report of Session 2005-06, Illegal Migrants: Proposals for a Common EU Returns Policy, Q 592. See particularly the Frontex Executive Director’s allegation that facilitators make the journey become a search and rescue operation so as to guarantee their human cargo reception and a way to the closest haven. In House of Lords Frontex Report, above n. 34, para. 39.

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joint operations.68 In 2007, the Greek coast guard, for instance, was reported to be refouling systematically refugees by pushing small boats out of the national waters, damaging the dinghies and endangering the life of those on the boat.69 Practices by the authorities of Italy, Spain, Malta and Cyprus have similarly come unto heavy criticism.70 The influence and pressure of humanitarian organisations in different Member States has ensured that the human rights issue has moved up on the Frontex agenda. A working agreement between Frontex and UNHCR was signed in June 2008 and is intended to integrate human rights into the training curriculum of border guards with the aim to make the EU border control management system fully compliant with human rights standards.71 Frontex 2008 Annual Report even identifies full respect and promotion of fundamental rights amongst the values that form the foundation of its activities at all levels.72 However, there is nothing to suggest that Frontex is significantly re-orienting its approach and procedures towards respecting the rights of apprehended migrants, in accordance with international and EU standards. To date it remains extremely difficult to monitor what happens at the crucial moment when migrants come into contact with the intercepting authorities or are diverted back to a third country under bilateral agreements involving Member States, or other arrangements Frontex has in place. Frontex joint operations and Community law The exact scope of Frontex activities is a matter of speculation. According to its founding Regulation, Frontex is expected to contribute “an efficient, high and uniform level of control on persons and surveillance of the external borders” by “ensuring the coordination of Member States’ actions in the implementation of [Community measures relating to the management of external borders]”.73 Most 68

69 70

71 72 73

See, amongst others, Pro Asyl, The truth might be bitter but it must be told: the situation of refugees in the Aegean and the Practices of the Greek Coast Guards (October 2007); Escape from Tripoli – Report on the conditions of migrants in transit in Libya (October 2007). Pro Asyl, The truth might be bitter, above, p. 7. See particularly the Reports by the Commissioner for Human Rights of the Council of Europe following his visits to the Republic of Cyprus on 7-10 July 2008, Italy on 19-20 June 2008 and 13-15 January 2009, and Greece on 8-10 December 2008. Frontex Press Release 18 June 2008. Frontex General Report 2008, p. 5. Regulation 2007/2004 Article 1(2). Schengen associated members (Iceland, Norway and Switzerland) also participate in the Agency. As a result of their special position as regards the Schengen acquis, the UK and Ireland are not part of the Frontex Regulation. UK and Ireland can participate in Frontex operational actions, with modalities which are decided on a case-by-case basis. The UK has unsuccessfully challenged the exclusion before the European Court of Justice (Case C-77/05).


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measures relevant to the external border crossing have recently been codified in the Border Code Regulation (also known as Schengen Border Code).74 External borders in turn are defined as “the land and sea borders of the Member States and their airports and seaports, to which the provisions of Community law on the crossing of external borders by persons apply.”75 It has been argued that control and surveillance coordinated by Frontex would, under the terms of the Regulation, need to be linked to the external EU borders and not take place somewhere else, i.e. in the high seas or territorial waters of third countries.76 On the other hand, the point has been made that Frontex joint operations can extend beyond the external EU borders, in which case the measures of interception are not covered by the surveillance rules of the Schengen Border Code but are governed by the law of the sea and so are based on the jurisdiction and national legislation of the flag State of each vessel.77 Both arguments, however, seem to ignore that there are circumstances in which Community law may apply to activities pursued outside the territory of the Community.78 Furthermore, as will be seen below, the extraterritorial application of the Schengen Border Code is implied in the Code itself with regard specifically to general checking procedures on maritime traffic.79 The Schengen Border Code defines border control80 and the purpose of border surveillance as being to prevent unauthorised border crossings, to counter crossborder criminality and to take measures against persons who have crossed borders illegally.81 It sets out the requirements third country nationals need to fulfil to enter an external EU border. These are specified in Article 5: entry can only be authorised if the person concerned (i) has the correct travel documents, including a visa if required, and a justification for the proposed stay (including possibly a subsistence requirement); (ii) is not listed in the Schengen Information System; and (iii) is not a threat to the public policy, national security or international relations of any Member State. With regard to sea borders, Annex VI to the 74

75 76 77 78 79

80 81

Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community code on the rules governing the movement of persons across borders (Schengen Border code) [2006] OJ L 105/1. This Regulation has replaced the rules on checks and surveillance at the external borders which were previously laid down in the Convention implementing the Schengen agreement and the Common Manual for External Borders. Regulation 2007/2004 (as amended) Article 1a. See House of Lords Frontex Report, above n.34, para. 142. Ibid., para. 143. Case C-214/94, Boukhalfa v Germany [1996] ECR I-02253, para. 14. Schengen Border code, Annex VI, para.3. See Violeta Moreno Lax, Searching Responsibilities Rescuing Rights: EU Border Control and Maritime Interception in the Mediterranean Sea, RefGov Working Paper, 2009 (forthcoming). Schengen Border code, Article 2(9). Schengen Border code, Article 12(1).

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Schengen Border Code also allows checks to be carried out on ships during crossings or, upon the ship’s arrival or departure, in the territory of a third country, in accordance with agreements reached on the matter, to ensure that both crew and passengers fulfil the conditions laid down in Article 5.82 Importantly, the Border Code includes a number of significant procedural safeguards for those who are refused entry. A person is entitled to know the precise reason for refusal; there is a right to appeal refusal (although the details are left to national law) and to information on contacts regarding the appeal; and in addition to possible compensation there must be a remedy of correction of the refusal of entry if the appeal is successful.83 The Schengen Border Code contains further safeguards for those who seek to enter for asylum purposes. It contains a general provision in Article 3(b) specifying that the legislation does not affect “the rights of refugees and persons requesting international protection, in particular as regards non-refoulement”. Article 4(3) provides expressly that the application of penalties to persons who cross the external borders without authorisation is “without prejudice to [Member States’] international protection obligations”. According to Article 13(1), the Code’s special provisions on the right to asylum or to international protection prevail over an obligation to refuse entry at the external border to a person who does not meet the normal conditions of entry. Thus, refugees and people in need of international protection represent an exception to the requirements normally demanded of third country nationals for the crossing of external borders and cannot be refused on the same grounds. Finally, the Code states that when performing their duties, border guards must fully respect human dignity and their measures should be subject to the principle of proportionality (Article 6(1) ). All these safeguards and guarantees ought to apply to persons who are intercepted or diverted in the context of Frontex joint operations, whether carried out at or beyond the external EU borders. However, it is difficult to monitor the extent to which they are respected in practice. This is of particular concern with regard to asylum seekers and refugees who are caught up in interception and diversion measures taking place in the sea. Besides the special provisions for refugees and others in need of international protection in the Schengen Border Code, there is relevant Community law from the asylum acquis that applies at the external borders. The Asylum Procedures Directive requires Member States to accept “applications for asylum made in the territory, including at the border or in the transit zones” (Article 3).84 A study 82 83 84

Schengen Border code, Annex VI, para. 3.1.1. Schengen Border code, Article 13. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L 326/1.


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commissioned by the European Commission has confirmed the applicability of EU asylum instruments, including the Asylum Procedures Directive, to Member States’ territorial waters.85 The Directive further sets out the obligation on Member States to guarantee access to the asylum procedure (Article 6); the right of asylum seekers, subject to exceptions, to remain in the territory of a Member State, at its borders or in its transit zone pending the examination of the claim (Article 7); the right to an effective remedy (Article 39); and to allow UNHCR access to asylum applicants (Article 21). However, in the context of border procedures, special rules apply which allow Member States to derogate from a number of key procedural safeguards (Article 35). In respect of asylum applicants coming from countries which have ratified the ECHR and the Refugee Convention, and subject to certain other conditions, Member States are allowed to skip some or all of the process of examination altogether (Article 36). Arguably, neither the Schengen rules nor the more detailed provisions in the Asylum Procedures Directive clearly and expressly prevent Member States from refusing asylum seekers access to their territory and accepting to examine applications for protection at their external borders. However, such behaviour would engage the scope of the protection obligations of States by virtue of the non-refoulement principle.86 Member States are bound vis-à-vis the persons rescued or intercepted at sea by the principle of non-refoulement, as derived from the Refugee Convention and Article 3 ECHR. According to UNHCR, scholars and extensive State practice, the obligation of non-refoulement does not arise only when a refugee is within the border of a State but also when he or she is under the effective or de facto jurisdiction of a State, outside its territory.87 Similarly, well established case-law of the ECHR and the international human rights monitoring bodies have recognised that States’ international human rights obligations are engaged by the exercise of State jurisdiction, including when exercised outside the territory of that State.88 The EU itself

85

86

87

88

Study on the international law instruments in relation to illegal immigration by sea, SEC(2007)691, 15 May 2007, 13. See Steve Peers, “Enhancing cooperation on border controls in the European Union”, in International Migration Law, ed. Ryszard Cholewinski, Richard Perruchoud and Euan MacDonald (Cambridge: Cambridge Univesity Press, 2007), 447, at 452. See UNHCR, Advisory Opinion on the Extraterritorial Application of the Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, January 2007; James C. Hathaway, The Rights of Refugees in International Law, (Cambridge: Cambridge University Press, 2005), 335–341; Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law, 3rd edition, (Oxford: Oxford University Press, 2007), 244–253; Klug and Howe in this volume. For European Court of Human Rights case law, see Amuur v France, 25 June 1996; Loizidou v Turkey, 18 December 1996; Grand Chamber, Ocalan v Turkey 12 March 2003; and Ilascu and

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appears to accept that Member States must respect international human rights law (which includes the non-refoulement obligation) when acting extraterritorially, such as in the context of the recent joint military operations against acts of piracy off the coast of Somalia.89 The problem is that, assuming such obligation is accepted, it remains unclear which Member State, amongst those participating in the specific operation, is responsible vis-à-vis the persons rescued or intercepted and under which conditions a Member State can be required to assume responsibility for their reception and the determination of any asylum claims. Frontex sea operations and international law: the question of disembarkation Frontex sea operations carried out to date have highlighted the question of disembarkation of intercepted persons to be a particularly intractable problem. Because of the unsafe character of the boats and vessels used by migrants, sea patrol operations often turn into a search and rescue activity which engages specific international obligations, including the transport of the persons rescued to a safe place. The difficulty with this issue is that while disembarkation often engages in practice the responsibility of the State concerned for the examination of the protection needs of the asylum seekers amongst the persons rescued or intercepted, international law does not set out which State is required to allow the disembarkation of any persons rescued. The international legal framework on this is complex.90 In broad terms, in the context of the EU southern maritime border control and surveillance activities, Member States have to comply with obligations stemming from international law, including the international law of the sea.91 This involves a duty to establish and maintain search and rescue facilities in designated regions in order

89

90

91

others v Moldova and Russia, 8 July 2004. On how the notion of extraterritorial human rights has developed, see also Maria-Teresa Gil-Bazo, “The Practice of Mediterranean States in the context of the European Union’s Justice and Home Affairs External Dimension. The Safe Third Country Concept Revisited”, International Journal of Refugee Law 18 (2006): 571–600 and den Heijer in this volume. See Article 12(2) of the Council Joint Action 2008/851/CFSP of 10 November 2008 on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast [2008] OJ L 301/33. For an in-depth examination of the legal obligations for border management stemming from the international law of the sea, see R. Weinzierl and U. Lisson, Border Management and Human Rights – A study of EU law and the Law of the Sea (German Institute for Human Rights, December 2007) and Barnes in this volume. Particularly, UNCLOS; International Convention on Maritime Search and Rescue, 1979 (SAR); International Convention for the Safety of Life at Sea (SOLAS).


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to guarantee safety at sea.92 A Search and Rescue (SAR) region so designated does not necessarily coincide with the territorial sea or the contiguous zone. In principle, the State responsible for the SAR zone should provide a safe place for disembarkation or make sure that such a place is found. A safe place is a place where the person’s life or safety is no longer threatened, where basic human needs (food, shelter, medical) can be met, and where arrangements can be made for transport to the next or final destination.93 However, there is no rule designating by default a State responsible for receiving the rescued passenger such as, for example, the State of nationality or of residence of the persons, the flag State or the State of departure of the ship.94 The responsibility might also be difficult to establish when ships from different Member States are acting within the framework of the same operation. Furthermore, unlike EU Member States which have established SAR zones, certain third countries from where migrants set sail for Europe have no defined SAR zone.95 Solutions are particularly difficult to arrive at when migrants are intercepted and rescued outside the Member States territorial waters or SAR regions. There are various well-known instances where disembarkation has required diplomatic negotiation or put the life of migrants at risk: in June 2004 the German-flag vessel Cap Anamur, which rescued a group of 37 people in the Mediterranean, was allowed to disembark in Sicily only after intervention of UNHCR. Italy had initially refused to disembark because the vessel had crossed Malta’s territorial waters.96 Malta has in the past refused to disembark persons who were rescued outside its SAR area. One episode involved 26 migrants which were left clinging for three days to fishing nets on the high seas while Libya, Malta and Spain wrangled over which country should take them – the picture of the men stranded at sea becoming symbolic of the human tragedy playing out in the Mediterranean.97 Another recent episode involved a stand-off between Italy and Malta over a Turkish cargo ship, Pinar, that rescued 140 migrants from two sinking boats and was allowed to dock in Italy after being stranded in the Mediterranean for four days with the decomposing body of a pregnant woman kept on one of the ship’s life boats.98

92 93

94 95 96 97

98

Article 98(2) UNCLOS; SAR, annex, chapter 2; SOLAS, annex, chapter V, regulation 7(1). See UN Guidelines on the Treatment of Persons Rescued at Sea, adopted by the Maritime Safety Committee by Resolution MSC.167(78) in May 2004. See SEC(2007) 691, above n. 85, para. 2.3.2. Ibid., para. 2.3.3. UNHCR News Stories, 23 July 2004. “UN rebuke as governments squabble over immigrants found clinging to tuna nets”, Guardian, 29 May 2007. “Italy allows ship with rescued migrants to dock”, Guardian, 19 April 2009.

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Although the need to deal with this problem has long been identified, until now this question has been handled on an ad hoc basis.99 A study on the law of the sea published by the Commission in 2007 recommended the adoption of clear guidelines on how to find solutions to the various legal and practical difficulties with regard to the exercise of control and surveillance powers at the maritime external borders.100 The Commission set up working groups to develop these guidelines, which are meant to deal with the specific case of what happens in a joint operation under Frontex’s aegis. They seek to establish what the rules of engagement are which would determine in advance what would happen in a particular operation in the event of rescuing irregular immigrants at sea, particularly with regard to the question of disembarkation and of asylum applications. It appears that at the moment some details are provided in the operational plans, which are prepared in advance of each joint operation. In any event, they are not legislative acts and, therefore, not binding. With regard to human rights obligations, these too, it appears, are contained in the operational plans in the form of a statement that “all operational actions taken shall ensure the principle of human rights and prevention of loss of lives has overall priority.”101 Operational plans are also said to contain further reference to Community and international law and the relevant national legislation.102 Operational plans are not public, however, so it is not possible to verify the nature of obligations and extent of Member States’ compliance. Most Members States favour discussing practical solutions as part of the operational plan, but practical solutions are not based on principle and not always easy to find. As mentioned above, as recently as May 2008 there were reports of the postponement of the Nautilus III operation due to lack of agreement between participating States (particularly Germany and France) on who should assume responsibility for irregular immigrants saved at sea.103 Italy and Spain have long argued that there should be harmonised rules on the rescue procedures binding

99

100 101

102 103

See Council Conclusions of 2 December 2004 evaluating the progress made with regard to the implementation of the Programme of measures to combat illegal immigration across the maritime borders of the Member States of the EU. Also European Council December 2005, Presidency Conclusions on a Global approach to migration: priority actions focusing on Africa and the Mediterranean (Annex 1). SEC(2007) 691, above n. 85. Phil Woolas MP, letter to Lord Grenfell, 24 October 2008. See House of Lords EU Home Affairs, Correspondence with Ministers, May 2008-November 2008, available at: http://www .parliament.uk/documents/upload/CWMSubFMay08Nov08.pdf (accessed 4 November 2009). Ibid. “EU patrols on hold as states grapple over destination of rescued illegal immigrants”, Timesofmalta.com, 27 April 2008.


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on all Member States.104 It is not surprising that the suggestion comes from these two countries, which along with Malta, believe that the present situation creates an unfair burden on them. At the time of writing, the European Commission is seeking to adopt a binding decision laying down additional rules regarding the surveillance of the sea borders in the context of Frontex coordinated operations.105 The proposal aims to ensure that Frontex surveillance operations are conducted in accordance with a homogenous set of rules and in full compliance with international law.106 The decision is being negotiated secretly with Member States at the Schengen Border code Committee, with representatives from the Commission, UNHCR and IOM, and the details will be known only once it is adopted and made public.107 Frontex operations in the territorial waters of a third country Frontex has already been involved in operations in the territorial waters of third countries, such as Joint Operation Hera, which took place in the territorial waters of Senegal and Mauritania. It is not clear what legal jurisdiction Frontex is acting under when providing assistance with such operations. Sea operations which take place beyond the EU external borders are generally based on bilateral agreements between EU States and the third country concerned which govern the conduct of surveillance and interception operations in the territorial waters of the third State and set out the legal basis for these operations. These agreements are often not publicly available and therefore beyond scrutiny for compliance with international and EC law. They seem to be unavailable even to Frontex, despite its involvement in facilitating such operations. For instance, during Joint Operation Hera, Frontex co-financed an airplane based in Senegal for surveillance of the national waters of Senegal.108 This was to allow the detection of migrants on boats leaving Senegal which would then be returned to the coast by Spanish or Senegalese vessels. Frontex maintains to have no copies of Spain’s agreements with Mauritania and Senegal.109

104

105

106

107 108 109

Information Note on Rescue at Sea – Information from the Spanish and Italian Delegations, Council document 14758/07, 23 November 2007. Under Article 12(5) of the Schengen Border code which provides that additional rules governing surveillance may be adopted in accordance with the procedure for the exercise of implementing powers conferred on the Commission by Decision 1999/468/EC. Dossier 2008/JLS/325. See Commission Legislative and Work Programme – Actions expected to be adopted by the Commission: 01/05/2009–31/12/2009. Email correspondence with Commission officials on file with the author. See COWI evaluation report, above n. 21, p. 62. See ILPA letter, above n. 50, and Garcia Andrade in this volume.

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Other than on the basis of a bilateral agreement between a Member State and a third country, Frontex may facilitate operational cooperation between Member States and third countries in the framework of Working Arrangements which the Agency is empowered to stipulate upon a mandate conferred to it by the Management Board.110 By entering into these Working Arrangements, Frontex itself establishes bilateral cooperation with a third country. This cooperation generally includes the exchange of information, the provision of training, participation in joint measures, and the secondment of border guards to Member State units responsible for border control. Frontex has so far concluded working arrangements with the border guard authorities of Russia, Ukraine, Moldova, Croatia, Switzerland, Georgia, FYROM, Serbia, and Albania. The negotiation process is well advanced with Turkey, Bosnia and Herzegovina, Senegal, Cape Verde and the USA. In addition, the Management Board has given the Executive Director a mandate to negotiate further arrangements with Egypt, Libya, Morocco, Mauritania, Brazil, and Montenegro.111 Working Arrangements are not to be considered international treaties and as such are not legally binding. They have been described by its Executive Director as technical low-level operational agreements with a country’s border control authority, not with the country or its government as such.112 However, they are also thought of as the basis for sharing intelligence for risk analysis and the actual involvement of a third country in Frontex joint operations, with technical and/ or financial assistance from the EU and its Member States.113 Member States see international cooperation with third countries as being of major importance for the joint operation’s effectiveness in stemming the flow of irregular migrants. In practice, this means that Member States and Frontex have to target particularly those countries that are acting as transit countries for most of the irregular migrants to Europe – Turkey and Libya, at present – but given that Frontex has little to offer in return, this requires the active involvement of the Union in providing proper incentives to the third countries to participate. Some of the countries in question have dubious records in relation to human rights and their treatment of migrants and refugees. One of them, Libya, is not even party to the 1951 Refugee Convention and its Protocol. Deplorable practices of the Libyan authorities with respect to migrants, including ill-treatment, arbitrary detention and violation of the principle of non-refoulement, are routinely reported by human rights organisations and were also confirmed by a

110 111 112 113

Regulation 2007/2004 Article 14. SEC(2009) 320, above n. 43, p. 21. House of Lords Frontex Report, above n. 34, para. 150. See Nielsen, Q77 in House of Lords Frontex Report, above n. 34.


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technical mission to Libya of the European Commission itself.114 A further technical mission was conducted more recently by Frontex but it focussed on assessing the needs of Libyan authorities in terms of improving control at their borders without taking into account any related human rights issues.115 This engagement of Frontex with Libya is taking place in the absence of formal EU-Libya relations, although dialogue has recently intensified and in November 2008 the EU and Libya started negotiations towards a framework agreement that would establish their first international agreement.116 Operational cooperation is at present taking place at Member State level, thanks to an agreement signed in the summer of 2008 between Italy and Libya.117 The agreement includes a comprehensive compensation package from Italy as colonial reparations – an issue which had hitherto been an obstacle to the implementation of previous agreements between the two countries on the joint patrolling of the Libyan coast.118 The deal signed with Libya has allowed Italy to return summarily to Libya hundreds of migrants rescued at sea or arriving at its shores – a practice that started in earnest in May 2009 and generated a deluge of protests and strong condemnation by the UN and other human rights bodies.119 These developments are alarming and call into question not only the complete failure on the part of the Commission to act with regard to Italy’s flagrant breaches of international law in forcibly returning hundreds of migrants to Libya, but the Union’s engagement itself with Libya, both in the context of the framework agreement talks and through its Border Agency, which has been given a mandate to negotiate a working arrangement. Frontex’s enhanced effort to target key third countries for cooperation on border management, such as Libya, Mauritania, Egypt, Algeria, China and Turkey,

114

115 116

117

118 119

Technical Mission to Libya on illegal migration 27 November-6 December 2004, Report, 4 April 2005. Frontex-led EU Illegal Immigration Technical mission to Libya 28 May–5 June 2007. “Commission and Tripoli engage in framework agreement talks”, Europolitics, 14 November 2008. Progress in re-establishing EU-Libya relations has been slow but steady ever since in 2002 the General Affairs and External Relations Council, in its November Conclusions, had resolved that it was “essential to initiate cooperation with Libya”. See also the Conclusions on “Cooperation with Libya on migration issues” adopted by the Justice and Home Affairs Council in June 2005. The Friendship, Partnership and Cooperation Treaty, signed in Bengasi on 30 August 2008. See Statewatch News online: http://www.statewatch.org/news/2008/nov/01italy-libya-treaty .htm (accessed 4 November 2009). The details of Italy’s cooperation with Libya are examined by Di Pascale in this volume. “UN agency regrets lack of transparency in Italy’s return of boat people to Libya”, UN News Centre, 7 May 2009; “Italy/Libya: Forced Return of Migrants Violates Rights”, Human Rights Watch, 7 May 2009.

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is likely in the future to increase significantly the number and scale of joint operations involving the cooperation of third countries.120 There are complex issues of jurisdiction involved in these arrangements, since it may not be possible in all instances to establish the extent to which the actions undertaken by third countries in the context of these joint operations are of a sovereign nature or are under the command or control of the EU institutions.121 It can be inferred from the international legal regime on State Responsibility that in the context of concerted actions, States may remain liable for violations they commit or which other States commit through their aiding and abetting.122 Under the new Frontex border management regime, Member States should not be in a position circumvent their responsibilities by entrusting more and more powers to an Agency of the EU, the activities of which are not considered to engage obligations under international law.

Conclusions Frontex is constantly under greater pressure to act as the European focal point for integrated border issues. It has a role in the establishment of the Mediterranean Coastal Patrol Network, and in EUROSUR – the European Surveillance System; and it has been given a huge increase in budget, from about €42 million in 2007 to over €70 million in 2008. Its staff has likewise grown exponentially from just 43 in 2005 to 219 at the end of 2008. While Member States continue to hold differing views on how far this EU agency should be strengthened and what its ultimate role should be, the continuous development of this Agency seems to have been taken a life on its own. Calls that Frontex be given increased operational and coordinating responsibilities are repeated at every turn, and it seems ever more likely that this will soon include a responsibility to initiate joint operations.123 Frontex is coming particularly under pressure to play a greater role in

120 121 122

123

See Frontex Programme of Work 2009, p. 27. See Fischer-Lescano et al., above n. 36, p. 295. See Article 8 (conduct directed or controlled by a State) and Article 16 (Aid or assistance in the commission of an internationally wrongful act) of the International Law Commission (ILC) Codification on State Responsibility. On extraterritorial responsibility for intercepting measures taken at sea, see Xhavara and Others v Italy and Albania, ECtHR admissibility decision of 11 January 2001, Application n. 39473/98. See Report of the Informal High Level Advisory Group on the Future of European Home Affairs Policy (The Future Group), June 2008, para. 112. On the future development of Frontex see also: COM (2008) 67 final, above n. 58; Council Conclusions on the management of the external borders of the member states of the European Union, Justice and Home Affairs Council meeting, 5 and 6 June 2008.


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supporting and building up border management operations in third countries. The stated political objective is to extend the radius of operations and bring Frontex sea patrols to the territorial waters and search and rescue areas of third countries. Agreements with third countries are called for with start-up financial or material assistance in order to facilitate joint patrols in which Frontex is to have a central role.124 Italy-Libya joint patrolling appears to be taken uncritically as a model of cooperation, and the political imperative at the highest level is that “[a]ll activities in the Western Mediterranean region and the Eastern and SouthEastern borders need to continue.”125 Frontex’s mandate is strengthened, its role is changing, its powers are expanding, yet little is being done to adapt its operational arrangements to community and international law. Four years into its activities, there continues to be a disconcerting lack of precise legal provisions on the regime governing Frontex measures, for instance, with regard to sovereign action executed by national ships and responsibilities for refugees, asylum seekers and rescued persons. Apart from laudable declarations of intent, there is no evidence that can be gathered indicating that, with regard to Frontex sea operations, border guards are applying the Schengen Border Code in a coherent and consistent manner and ensure the effective application of Member States’ protection obligations in the context of measures relating to interception, rescue at sea and disembarkation. Yet, this is regarded by the Commission as a key objective and it is also with regard to this objective, not only the number of people intercepted, that Frontex’s activities should be assessed.126 Frontex cannot be exempt from responsibility for ensuring that EU and international law is upheld correctly. Furthermore, its activities need to be monitored and subjected to proper scrutiny or else the communitarisation of the protection of the external EU borders will ultimately result in Member States’ authorities increasing their autonomy at the expense of political, legal and institutional constraints on policy-making in the field of border control. The questions of democratic and legal accountability become ever more urgent in this respect. Any further development of Frontex should go hand in hand with the development of a proper framework for the Agency’s accountability, including legal accountability for its operations, and gaps in the legal protection of those affected by its operations must be closed without delay.

124 125 126

Future Group Report, para. 118. Presidency Conclusions, Brussels European Council, 18/19 June 2009, para. 36. See COM (2008) 67 final, above n. 58, 5.

The Transformation of European Border Controls Elspeth Guild and Didier Bigo 1. Introduction The issue of extraterritorial border controls appears daily in newspapers and other media throughout Europe. The image of people hanging on the tuna nets floating in the Mediterranean stands out as one of the most shocking of 2008. This externalization is the result of policy choices made in Europe both by the Member States and the EU. In this chapter we will examine how those choices are made and how the consequences lead inexorably to the people on the tuna nets. At the core of our argument is the contention that European (but also US) authorities have made choices about where their border controls will be carried out and developed forms of remote controls to check the identity of people who want to enter or transit through their territory before they travel, instead of checking them at the border, when they arrive. The argument of the authorities is that to check the legality of people’s movement before they embark, with the help of the local authorities and with the air or land carriers, avoids the painful and expensive problems related to sending them back if they are not those who should be traveling. The argument of many non-governmental organisations is that this policy puts refugees at risk especially if they are blocked in their country when they try to escape by this “upstream” policy.1 The discussion is then sometimes reduced to finding a way to control,

1

See for example European Commission: Third annual report on the development of a common policy on illegal immigration, smuggling and trafficking of human beings, external borders, and the return of illegal residents (SEC 320, 2009): http://www.statewatch.org/news/2009/mar/ eu-com-illegal-imm-sec-320-09.pdf (accessed 4 November 2009). For a critical assessment see European Parliament calling for more in-depth discussion on new measures for border management: “Every year, 160 million EU citizens, 60 million third country nationals (TCNs) who do not require a visa, and 80 million requiring a visa, cross the EU’s external border…. [and] “does not believe that the proposed system will put an end to the ‘overstay’ phenomenon as such”. According to an expert report for the Commission the total number of “illegal” immigrants in the EU 25 in 2006 was estimated to be over 8 million. Tony Bunyan, Statewatch editor, comments: “The intriguing category is the 60 million visitors a year from countries not requiring visas to enter the EU – from countries on the EU “white list” including people from Canada, Australia, Japan and the USA. How many of these have overstayed over the years? Are they to be subjected to the EU’s Returns Directive which would see them hunted down, put


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Elspeth Guild and Didier Bigo

but in a humanitarian manner, with more attention to the exceptions, such as the refugees; to give access to justice to the people who want to present asylum claims, who have relatives in the EU or who are genuine tourists with enough money to purchase goods.2 This is most efficiently done at the borders of the receiving country, but it looks more efficient for governments to do it at the point of departure, i.e: state consulates in the countries of origins of the flows, and along the way following the flow through new policing activities and engaging the private companies of transportation. This policy of “remote control” by Western governments varies in intensity, from the very harsh policy of interdiction outside territorial waters initiated by the US against the Haitian refugees, the Australian authorities “excision” strategy of some of their islands, to the more or less prolonged hostility of the Greek, Italian and Spanish authorities towards Maghreb, with the help, in some cases of the European border management agency (FRONTEX). To analyze the forms of policing at a distance only as remote control public policy, while important, is nevertheless insufficient.3 The answer it demands is a humanitarian exception to the right of the state to control its borders. It reflects sometimes on the trade offs between efficiency and state brutality. But it does not challenge the reasoning of the primacy of state and interstate order, and the legitimacy of the policy of externalisation of controls. It does not address the central relations between order, border and identity and fails to understand that the violence the Western societies project, or the freedom “we” want to spread by measures of policing are often two faces of the same coin, i.e.; the incapacity to have a cosmopolitan identity assumed through the values of freedom, equality and justice while living in a world where inequality is just next door. What to do with the “poor”? What to do when they want to move? By using the notion of policing at a distance, we want to go a step beyond and to address these questions of our identity, the form of governmentality we develop

2

3

in detention, deported and banned from re-entry for five years?”: http://www.statewatch.org/ news/2009/mar/ep-border-management-surveillance-prel.pdf (accessed 4 November 2009). See also for a critique Liz Fekete, “Deaths at Europe’s Borders,” Race and Class 45 (2004): 75-83 and Teresa Hayter, Open Borders: The Case against Immigration Controls (London: Pluto Press, 2000). Sile Reynolds, and Helen Muggeridge, Remote Controls: How the UK Border Controls Are Endangering the Lives of Refugees (Refugee Council: London, 2008), 86. Aristide Zolberg. “Bounded States in a Global Market,” in Social Theory for a Changing Society, Pierre Bourdieu and James Samuel Coleman (Boulder New York: Westview Press; Russell Sage Foundation, 1991); Aristide Zolberg, and Peter M. Benda, Global Migrants, Global Refugees: Problems and Solutions (New York: Berghahn Books, 2001); Adam McKeown, Melancholy Order: Asian Migration and the Globalization of Borders (New York: Columbia University Press, 2008); and Antoine Pécoud and Paul de Guchteneire, Migration without Borders: Essays on the Free Movement of People (Paris, New York: UNESCO and Berghahn Books, 2007).

The Transformation of European Border Controls

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in order to maintain our idea of ‘us’ as liberal citizens while organizing the filter of those who will have the right to come to visit us, and those who will not have this right, even if we do not know them.4 The relationship between borders and control is not a “given”. It cannot be naturalized. It depends on the historical trajectory of the Western States and their relations to the others, of the way they have conceived peace and order, of the way they have considered that a frontier needs to be a thin line of defense, and a line of differentiation and not a limes, a zone of exchange. Certainly the liberal economy has transformed the previous state of police, and has insisted on borders as forms of junctions, but mainly for transit of goods, capital and services (people working), not for people’s pleasure (except if their pleasure is consumption of expensive goods). The economic reasoning and security rationale have often clashed in rhetorical terms, and it has been coined as a liberal paradox.5 But the economy and the process of globalization do not lead towards less boundaries and a ‘no borders’ world. They intensify other boundaries and they reshape identities. They also create a more “liquid” world to borrow the metaphor of Zygmunt Bauman, going beyond any form of circulation and affecting identity and solidarity.6 This liquidity can take the form of a mobility of persons across boundaries, but it is only one of its forms. Security can become liquid too. Instead of stopping, liquid security is then modeling and channeling the travel of the individuals, seeking to impose on them a form of travel where speed and comfort are read as forms of freedom.7 It is this logic which goes deeper than an extension or enlargement of border controls that we want to investigate, as it shapes differently the question. So, we have first to think about the delinking between frontiers and control specific to the European Union, and the reaction, sometime violent to the intensification of mobility, especially after September 11, with the temptation to set up to a global police state. Secondly, we have to think about the more profound transformation of the way people move and are related with their territory, their bureaucracies and their states and how they frame their own identity in regards to the treatment they give to others.

4

5

6

7

Didier Bigo, and Elspeth Guild, eds., Controlling Frontiers. Free Movement into and within Europe (Aldershot: Ashgate, 2005). James Hollifield, Immigrants, Markets, and States: The Political Economy of Postwar Europe (Harvard University Press, 1992). Zygmunt Bauman, Globalization: The Human Consequences, European Perspectives (New York: Columbia University Press, 1998); Liquid Modernity (Cambridge: Polity Press, 2000); Liquid Fear (Cambridge: Polity Press, 2006); Liquid Times: Living in an Age of Uncertainty (Cambridge: Polity Press, 2007). Didier Bigo, “Speed as Freedom, Speed as Control,” in Contesting borderzones (Open University, 2009).

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Concerning the first point, the European Union project has modified the way frontiers and controls have been conceptualized under a sovereign state and interstate vision of borders as the locus of protection of the territory and the population, and has imposed a different vision of borders. A liberal way of thinking and the development of interlinked market economies have limited the military and police framings of the state borders, by differentiating between internal and external borders. But this liberal way of border management has been coextensive to a form of governmentality of unease and fear concerning mobility, first after the fall of the Berlin wall and then after September 11. Migration and overstay have been read as a rampant invasion. But the intensification of mobility is certainly not a reason for an intensification of control at the borders and the development of other forms of control upstream and downstream in order to make this control more efficient as if sealing the European Union Area was possible. We have to challenge the notion of control itself and its meaning concerning justice, equality and freedom. How far are the forms of control which are deterritorialised by a process of externalisation, first, efficient, second legitimate? Do we have the right to police third country nationals in the name of our freedom in a manner seen as antagonistic with their freedom? In this relation between capacity of control, the logic of passage and will of mobility, the dynamics of externalization of controls look like a “fuite en avant” because of the failure of strict border controls at the national level.8 The widening of the zones in which to carry out control, and of the people to put under surveillance is exponential. The belief that technology will help is at the heart of all the governmental projects. In the USA, the wall between San Diego and Tijuana has been extended to cover the desert using military devices which constitute an electronic wall.9 The Eurosur project in the Mediterranean Sea is built on the same faith that high military technology combined with high level of data communication and transfer of personal information through interoperable data bases, plus high speed forces of police intervention will tighten the control and stop people who want to pass irregularly.10 The projects of entry and exit systems in Europe along the lines of the Australian and US homeland security technologies are also a way to create a series of obstacles blocking the passage of people,

8

9

10

Karine Bennafla, and Michel Peraldi, “Frontières et Logiques de Passage: L’ordinaire des Transgressions,” Cultures & Conflits 72 (2008): 156. Malcolm Anderson, “The Transformation of Border Controls: A European Precedent?,” in The Wall around the West. States Borders and Immigration Controls in North America and Europe, ed. Peter Andreas and Timothy Snyder (Lanham, Boulder, New York, Oxford: Rowman and Littlefield, 2000), 15–29. Julien Jeandesboz, Reinforcing the Surveillance of EU Borders: The Future Development of Frontex and Eurosur (Brussels: CHALLENGE Papers, Centre for European Policy Studies, 2008), 23.


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and a way to track them, to punish them and to send them back in order to deter the new candidates.11 It is based on the assumption that the present international order is by definition to be preserved, that each state has to control its own population, that if they do not control their population, then they are failed states and other states have the right to intervene on their territory to “help” them control their population’s movements. Are these assumptions realistic? Do they fit with the world we live in? Are they not a excessive reaction, a refusal to accept dynamics of social changes (demographic, economic, social etc)?12 Secondly, the world of sedentarism, of territorial states controlling the movement of their populations has been a very powerful myth of the Western political imagination, and has had an effect on the way the world is shaped, but it is nevertheless a myth. The world is a world of passage. And it is this alternative to the doxa that the governments (alone or together or through common European and supranational agencies) have the capacity to regulate, manage, and control mobility that we want to explore here. Our main point will be then to challenge this capacity of the states or of EU institutions to manage the so called flow of population through a security dispositif opening or closing the locks at will, either for economic, sovereign, or humanitarian reasons. In fact they cannot, they can only continue with a narrative of control and to have strong symbolic politics claiming that they are still in charge. They can “mark” or “tattoo” certain populations, block some individuals and send them back, punish some others, but they cannot be “effective” in sealing the borders or even in channelling people from point A to point B and assuming they control all of them for all the routes they want to take. So a relationship between control and borders of the state which is based on the idea of the capacity of state agents to stop people entering has to be rethought fundamentally.

2. The ambiguity of frontiers in the European Union (Schengen and others) What are the frontiers of the European Union? And where are they? Do they resort as institutions to the traditional functions of differentiation, protection, junction, inclusion and exclusion? Traditionally over the past two hundred years, the frontiers of European states are frontiers hard fought, disputed and subject to

11

12

Didier Bigo, Sergio Carrera, and Elspeth Guild, What Future for the Area of Freedom, Security and Justice? Recommendations on EU Migration and Borders Policies in a Globalising World (Brussels: CEPS Policy Briefs, 2008), 4. Didier Bigo, Ricardo Bocco, and Jean Luc Piermay, “Logiques de Marquages: Murs et Disputes Frontalières,” Culture & Conflits 73 (2009): 176.

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wild variation, but quite clearly located, and more or less similar in their functions.13 But the question poses a different problem and one central to the nature of the European Union: is there something about the way the European Union is framed and functions which changes the relationship of sovereignty to borders of European states? The point of departure for the usual discussion of the borders of Europe is often the 1957 EEC Treaty which creates the objective of the internal market. We have started from this point often enough ourselves, but a broader view of state formation is certainly necessary to understand the different cultures of borders and borderzones which shape the EU as such. 1957 is then mainly a “convention” for the discussion of the specificity of the EU borders by the European Commission.14 The second step is the 1987 Single European Act which inserted into the Community Treaty the logic of the 1992 project: to abolish border controls on the movement of goods, persons, services and capital within the territory of the Member States. The fall of the Berlin Wall on 9 November 1989 (an inversion of 9/11 which so interests security studies) changed the landscape of Europe in ways which even a few months previously had been considered unimaginable. One result was the movement of persons, both persons who had an entitlement to German citizenship as a result of their ancestry15 and asylum seekers from East to West across a border no longer controlled by the Warsaw Pact countries. Another result was the disappearance of some sovereign borders in Europe such as that of the GDR, the former East Germany, and consequently also that of the former West Germany. But there was also the reappearance of European borders which had not existed for a few generations such as those of Estonia, Latvia and Lithuania. In general, it must be recognized that the late 1980s and 1990s was a tremendously restless period in Europe as regards borders, their existence, their disappearance and their meaning. One of the functions of borders – the place where the sovereign state claims a right to control movement of persons – was put under very great pressure. Even the issue of the identity of persons as belonging to one state or another was very much contested.16 The pressure within an EU of 15 Member States to abolish inter state border controls on the movement of

13

14

15

16

Malcolm Anderson, Frontiers: Territory and State Formation in the Modern World (Malden, MA: Polity Press, 1997); Tony Judt, Postwar: A History of Europe Since 1945 (London: Heinemann, 2005). Kees Groenendijk, Elspeth Guild and Paul Minderhoud, eds., In Search of Europe’s Borders (the Hague: Kluwer Law International, 2003). The Ausseidler: see Kees Groenendijk, “Regulating Ethnic Immigration: the case of the Aussiedler, ” New Community 23 (1997): 461. Judith Toth, “Relations of Kin-state and Kin-minorities in the Shadow of the Schengen Regime,” Regio2006 9:18–46.


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persons by the deadline of 31 December 1992 as was promised in the Single European Act was too ambitious. Instead, a smaller group of Member States – the Benelux three, France, and Germany went ahead and abolished on the basis of the Schengen Agreements border controls among themselves on 25 March 1995 (though France maintained border controls with the Netherlands on account of its concerns about the Dutch policy on soft drugs – these controls were gradually abandoned). At the same time, the fall of the Berlin Wall created quite a different dynamic which was moving in parallel to the borders issue but not directly associated with it in legal terms. The 12 Member States decided very quickly after the 1989 events to incorporate the states of Central and Eastern Europe which wished to become part of the EU into it. The first association agreement with Poland was signed in 1991 and was followed by agreements with what were then described as the Visegrad 5 (though they became six when the Czech Republic and Slovakia separated).17 The security interests of some Member States, particularly those with borders to the East was paramount. However, between the signing of the agreements towards accession with the Central and Eastern European countries and their accession, Austria, Finland and Sweden joined the EU in 1995. With them, came as candidate states, the three Baltic states and Slovenia. Another effect of 1989 which was played out around the creation and collapse of borders and which had dramatic consequences for the movement of persons to the EU was the war which accompanied the dissolution of the former Yugoslavia. This also took place after the EU decision to move towards incorporation of the Central and Eastern European countries and ended with the Dayton agreement in 1995 at the same time as the Nordic states and Austria joined the EU. The EU was the main destination for refugees fleeing the war in Bosnia.18 The effectiveness or otherwise of border controls on the movement of persons was under substantial pressure. Thus 1995 was an important year for the EU for a number of reasons all of which would converge around the question of border controls, where are they and what are their purpose. By the time one arrives at 1995, there are many state borders where the control of persons takes place in the European Union, but there are other sovereign borders which are no longer used for this purpose. The legal setting for these arrangements was rather unsatisfactory as it was outside the EU framework in an intergovernmental arrangement of the Schengen Agreements. One of the consequences of the intergovernmental regulation of 17

18

Anita Bocker and Elspeth Guild, Implementation of the European Agreements in France, Germany, the Netherlands and the UK: Movement of Persons (London: Platinum, 2002). UNHCR Statistics 1995 http://www.unhcr.org/statistics/STATISTICS/3bfa32e82.pdf (accessed 4 November 2009).

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the abolition of border controls, rather than an EU controlled mechanism, is that those states which were unhappy about the loss of authority which a claim to control of persons at external frontiers provides were able to stay out of the system and Ireland and the UK have ever since remained in splendid isolation never yet participating in the changing nature of border control in the EU except from the side lines. The other effect was that this permitted subsequently non EU states to slide into the border control free system – thus Iceland, Norway and Switzerland became part of the borderless Schengen area though situated outside the EU. By 1999, all 15 EU Member States, old and new had joined the Schengen system, with the exception of Ireland and the UK. By a protocol to the Amsterdam Treaty, the Schengen arrangements, a rather messy and copious body of treaties, decisions, letters etc has inserted into the EU. A traumatic few months passed as the institutions and the Member States tried to sort out the pile of paper and decide what was law and what was not. A final list of what became described as the Schengen acquis was established and after more agonizing a decision was made as to what ought to be caught by the provisions of the new EC Treaty covering border controls, and what ought to be part of the EU’s Third Pillar, the more intergovernmental part of the EU (now finally abolished by the Treaty on the Functioning of the European Union). For the purposes of border controls on persons, the allocation of the information system which contains the names of all persons who should be refused visas and entry to the EU, the Schengen information System, to the Third Pillar is important. Thus, while the abolition of controls on the movement of persons within the territory of the Member States took place, a common system for the management of the external border was establish and a common visa system for short stay visas was all considered First Pillar law, the list of persons to be refused entry was considered to be not quite supranational law and inserted into the Third Pillar. This crosspillarisation persisted until 2009 and the collapsing of the EU’s pillar structure into a new Treaty on the Functioning of the EU. By 2000, the EU institutions had been placed in the driving seat as to what the border of Europe is, they proceeded to express a certain dissatisfaction as to the Schengen acquis, which can only be described as less than legally precise. The gradual process began of replacing the bits of the acquis with EU adopted measures which would fulfill the expectations of the institutions. In the process, the fuzziness which had surrounded the issue of borders inevitably began to dissolve. This is not to suggest that the development of the changing place of EU borders took place in a coherent fashion. Professor Steve Peers maintains a list of measures adopted at the EU level which is chronological in order. In March 2009 it looked like this as regards borders and visas:


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Adopted measures [UK & Ire have opted out of all measures except UK opt in to 4, 5] * 1. Reg. 1683/95 on common visa format (OJ 1995 L 164/1) – amended by Reg. 334/2002 (OJ 2002 L 53/7) – amended by Reg. 856/2008, OJ 2008 L 235/1 2. Reg. 539/2001 establishing visa list (OJ 2001 L 81/1) – amended by Reg. 2414/2001 moving Romania to ‘white list’ (OJ 2001 L 327/1) – amended by Reg. 453/2003 moving Ecuador to ‘black list’ (OJ 2003 L 69/10) – amended by Reg. 851/2005 on reciprocity for visas (OJ 2005 L 141/3) – amended by Reg. 1932/2006 (OJ 2006 L 405/23) 3. Reg. 789/2001 on procedure for amending CCI (OJ 2001 L 116/2) 4. Reg. 1091/2001 on freedom to travel for holders of long-term visas (OJ 2001 L 150/4) 5. Reg. 333/2002 on visa stickers for persons coming from unrecognised entities (OJ 2002 L 53/4) 6. Reg. 415/2003 on visas at the border and visas for seamen (OJ 2003 L 64/1) 7. Reg. 693/2003 on FTD and FRTD (OJ 2003 L 99/8) 8. Reg. 694/2003 on format for FTD and FRTD (OJ 2003 L 99/15) 9. Reg. 1295/2003 re special rules for Olympic Games (OJ 2003 L 183/1) 10. Decision establishing Visa Information System (VIS) (OJ 2004 L 213/5) 11. Reg. 2007/2004 establishing External Borders Agency (OJ 2004 L 349/1) 12. Reg. 2133/2004 on biometric features in EU passports (OJ 2004 L 369/5) 13. Recommendation on visa issuing for researchers (OJ 2005 L 289/23) 14. Reg. 2046/2005 on Olympic visas: OJ 2005 L 334/1 15. Reg. 562/2006, borders code: OJ 2006 L 105/1 (applies from 13.10.2006) – amended by Reg. 296/2008, OJ 2008 L 97/60 – amended by Reg. 81/2009, regarding use of the VIS (OJ 2009 L 35/56) – adopted Nov. 2008 16. Two decisions on transit through new Member States, Switzerland (OJ 2006 L 167) – see implementation information, OJ 2006 C 251/20 17. Reg 1931/2006 on local border traffic within enlarged EU/at external borders of EU (OJ 2006 L 405/1) 18. Decision establishing European Borders Fund (OJ 2007 L 144) 19. Regulation 863/2007 on border guard teams (OJ 2007 L 199/30) 20. Decisions on transit through Romania, Bulgaria, Switzerland (OJ 2008 L 161) 21. Reg. 767/2008 establishing Visa Information System (OJ 2008 L 218/60); third-pillar VIS Decision (OJ 2008 L 218/129) Implementing measures Common Consular Instructions, consolidated text: [2005] OJ C 326/1 – amended by Decision of June 2006 (OJ 2006 L 175) * Many thanks to Professor S. Peers, University of Essex, for this schedule.

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Even a cursory glance at the list indicates that it is not particularly coherent in the chronology in which measures were adopted. While it makes sense that the field commences with a decision on nationals of which countries require visas to enter the EU, the arrival of FTD (Facilitated Travel Documents) which are a political solution to the isolation of the Russian enclave of Kaliningrad or the special rules of the Olympic games, indicates the sensitivity of the field of the occasional gusts of political will. What is consistent, however, is the gradual ceding of control over aspects of the law on border controls on Member States’ nationals to the EU. The other consistent aspect of the list is that while the big rules – such as the visa regulation, the borders code and now the visas code provide the framework of how the EU border works for the movement of persons, the list is littered with exceptions. The need to create exceptions to every rule of specific classes of persons provides an organizing principle to the list which is even stronger that the centrifugal force of a common set of rules. Turning then, to the Schengen Borders Code (Regulation 562/2006), adopted in 2006, here can be found the common rules governing the movement of persons across borders. It is in this document we find the definition of the internal and external border of the EU. Internal borders, according to the Code are: (a) the common land borders, including river and lake borders of the Member States; (b) the airports of the Member States for internal flights; (c) sea, river and lake ports of the Member States for regular ferry connections. External borders, according to the Code, mean the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders. Thus the definition of the external border is exclusively by reference to the definition of the internal border. The EU examines itself, its gaze fixed entirely on what it is and where it is and only by reference to this loving examination of itself does it then casually determine that everything else is external. The EU does not appear the least bit concerned about how the rest of the world views it, nor indeed what the rest of the world might look like. In its determination of its internal and external borders, the organizing principle is exclusively, where are we? One might also detect a certain anxiety about the question where are we in the Borders Code. Article 34 requires the Member States (and the others participating in the system) to notify the Commission of a list of their border crossing points. The list which has been produced and can be found on the Commission’s website reveals quite an extraordinary picture.19 For instance Belgium has three 19

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:247:0025:0084:EN:PDF (accessed 4 November 2009).


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air ports, three sea ports and one land crossing point – the Eurostar – though the train passes through France before arriving at the tunnel to the UK. Greece, on the other hand has four land crossing points with Albania and another four with FYROM (Macedonia) and 53 sea borders. The complexity of the EU common external border is daunting. The Borders Code specifies that the external frontier may only be crossed at the designated border crossing points at hours permitted. There is then a derogation for pleasure boating, costal fishing, seamen going ashore, groups of a special nature and unforeseen emergencies (article 4). But for all other border crossing the Code requires states to introduce penalties, in accordance with their national law for the unauthorized crossing of external borders at places other than border crossing points or at times other than the fixed opening hours (article 4(3) ). The criminalization of movement across international borders has begun. In view of the variety and heterogeneity of the border crossing points, this means that crossing the land border from Albania to Greece is only permitted at four points though the common border is many hundreds of kilometers long. All other border crossing is potentially unauthorised and criminalized. Arrival at any but the three Belgian sea ports which have been notified has the same consequence. On the other hand, the borders of the EU where controls on persons take place now define out all the inter Member State borders (with the additional states and minus Ireland and the UK). Article 20 simply states internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out. So while the external border is a pixilated place of points on a map which is not only geographical but also temporal – crossing is only permitted at certain times, the internal border is a single continuous timeless place where there is no control. One final reflection bears mention: the EU’s external border bears no relation to the external border of any country with which it is contiguous. The definition of the EU’s external border is in no way dependent on any sovereign claims by states outside the EU. If their definition of their external border with an EU Member State is based on the kind of seamless, timeless line which with which the EU defines its borders among its Member States, then the EU is unaware and uninterested for the purposes of its own border code. It seems that identity formation, and sense of stability and order are then more central than state sovereignty or even preoccupations of security for the different players of the EU borders management. And it is this tension created by a will to stabilise the EU in a world of change that explains the contradictory policies of the multiple actors in the field. Some want to promote and develop the EU neighbours as if they were children that a good tutor can put on the right side, others are more insecure and want to set up multiple filters and are even ready to have blockades, others are quite indifferent and refuse to look at the contradictions

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and inequality between the different zones in order to speak only in terms of legality and illegality of a certain world order.

3. Policing at the legal limits of the border? Practices of policing and access to rights Among the more original aspects of the EU’s external border is that an agency was established, called the External Borders Agency (otherwise known as FRONTEX) in 2004, two years before the EU had adopted its set of rules on the crossing of the external border (The Schengen Borders Code). The objective of the agency according to its founding document (Regulation 2007/2004) is to improve the integrated management of the external borders of the Member States of the European Union. Thus for FRONTEX there are Member State borders while for the Schengen Borders Code there are internal and external borders only. The main tasks of FRONTEX are: coordinating operational cooperation between the Member States in the field of management of external borders; assisting Member States on training of national border guards; risk assessment; following up on development of research; technical and operational assistance to Member States; and support in organizing joint return operations.20 Based in Warsaw, FRONTEX became operational in 2005. In the list of FRONTEX’s tasks there is no mention of the common EU external frontier nor of the internal borders. Its relationship with the Schengen Borders Code is not spelt out in its founding document for the simple reason that the Code did not exist when it was set up. This means that FRONTEX was established as the EU’s external border agency before the EU had defined or given a legal definition to its external frontier let alone who and how individuals should be able to cross that frontier. A second important aspect of the task of FRONTEX is the degree to which is it tied to the Member States. The agency’s job is not related to the European Commission or the Council or the European Parliament. The funding which it receives from those sources, which doubled between 2006 and 2007 from €19,166,300 to €42,150,300,21 is not related to how it carries out the EU’s definition of the borders but rather to how the Member States perceive the needs of external border management. It is not surprising that as a result there is something of a chasm between the rules of the Schengen Borders Code and the actions of FRONTEX. They are not coordinated, nor is there any clear point of intersection between the two.

20 21

For further details, see the chapter by Baldaccini in this volume. FRONTEX Annual Report 2007.


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For example, during 2008, FRONTEX coordinated joint operations entitled HERA 2008 in the Canary Islands and NAUTILUS 2008 around Malta and the Italian islands of Lampedusa and Sicily.22 The purpose of HERA was to tackle illegal migration flows coming from West African countries heading to the Canary Islands. That of NAUTILUS was to reinforce border control activities in the Central Mediterranean and control illegal migration flows coming from North African countries heading to Malta and Italy.23 According to data published on the FRONTEX website the total number of arrivals in the HERA 2008 action was 9,615. The number of so-called illegal migrants diverted back/deterred was 5,969. The number of interviews carried out by FRONTEX was 1,785. For the NAUTILUS 2008 operation a total of 2,321 arrivals to Malta and 16,098 to Italy were recorded. No so-called illegal immigrants were diverted back or deterred and 793 interviews were carried out. Nowhere in the Schengen Borders Code is there a provision about diverting boats away from the EU external border. Rather, there are provisions that individuals on pleasure and fishing boats be permitted to arrive even exceptional outside the permitted hours of a border post and at other places. When the non-governmental organization, the Immigration Law Practitioners’ Association (ILPA), requested information from FRONTEX regarding the legal basis of the operations it received the following reply “The documents setting out the legal basis for operations diverting vessels back to Mauritania and Senegal are Spain’s agreements with Mauritania and Senegal. Since FRONTEX does not have copies of Spain’s agreements with Mauritania and Senegal we are obliged to ask you to turn to Spanish authorities in this regard.”24 Article 4(3) of the Schengen Borders Code provides that the rules on the crossing of the external borders is without prejudice to the Member States’ international protection obligations. According the ILPA asked whether in the context of the interviews with FRONTEX carried out in the HERA and NAUTILUS operations any of the persons had asked for asylum. The reply from FRONTEX included the list of nationalities of persons who had been interviewed in both operations. This included in the NAUTILUS 2008 operation: – – – –

2,925 Eritreans; 126 Iraqis; 182 Pakistanis; 3,578 Somalis.

22

FRONTEX News Release 17 February 2009. Ibid. Letter 21 January 2009 to Ms Barret-Brown, ILPA from Gil Arias, Deputy Executive Director, FRONTEX.

23 24

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According to UNHCR, all of these countries rank among the top ten countries of origin of asylum seekers in the European Union. In 2008, 3,846 Eritreans applied for asylum in the EU 27; 26,195 Iraqis; 10,769 Pakistanis and 12,872 Somalis. In the FRONTEX letter of 21 January 2008, it is stated “FRONTEX experts, deployed in the framework of the Joint Operations only interview part of the persons arrived and interviews are carried out for intelligence purposes only … As regards the asylum claims, so far as FRONTEX is not aware of any claims of any claims of asylum which have been submitted to the national authorities during the referred joint operations. Nevertheless, it could be the case, that hosting Member State[s] could receive asylum claims later on, just after the interrogation.” It is difficult to square this response and the quite apparent effort to avoid any responsibility for asylum and protection claims (even though the individuals whose nationalities are identified include those persons from countries whose nationals are most numerously seeking protection in the EU) with the Schengen Borders Code duty to give priority to the Member States’ international protection obligations, most specifically the UN Convention relating to the status of refugees. Only a highly legalistic reading of the separation of competences provides a fig leaf for FRONTEX to hide behind – either it is interviewing people who are desperately seeking international protection but its officers do not hear protection claims, all they hear is intelligence. It is a step too far to compare this approach with that of intelligence officers of various EU countries who have become involved in obtaining intelligence even from their own nationals under circumstances of torture in the context of the US’s extraordinary rendition program.25 Nonetheless, the echo is there. According to the FRONTEX Annual Report 2007, the NAUTILUS 2007 operation cost the EU €5,083,853. The HERA 2007 operation cost € 5,416,000. In the NAUTILUS operation, 464 persons were detected or intercepted. In the HERA operation 2,020 persons were intercepted and 1,559 persons diverted away from an EU external border. The cost effectiveness of the NAUTILUS operation is astonishing. The question of proportionality must inevitably be raised in addition to the question of non-refoulement of refugees, fundamental human rights and the correct application of the Schengen Borders Code. FRONTEX’s operations do not stop here. FRONTEX also coordinates joint operations at the land borders of the EU. A representative example of this kind of operation, as described in the FRONTEX Annual Report 2007 is NIRIS. This cost only €150,000. It last for ten days from 18–27 June 2007. It was based on a

25

Florian Geyer, Fruit of the Poisonous Tree – Member States’ Indirect Use of Extraordinary Renditions and the EU Counter-Terrorism Strategy (Brussels: CEPS, April 2007).


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risk analysis carried out by FRONTEX which showed an increase of illegal migration of Chinese and Indian nationals in the Scandinavian region. As a result of the risk analysis NIRIS was planned. The operation took place at the air and sea ports of the participating states: Denmark (Copenhagen Airport), Estonia (sea ports), Finland (Helsinki Airport, sea and railway posts), Germany (Frankfurt Airport), Latvia (sea ports), Lithuania (sea ports), Norway (Oslo Airport and sea ports), Poland (Warsaw Airport and sea ports), Sweden (Stockholm Airport and sea ports). But this operation was not limited to EU and EEA countries, apparently the Russian Federation also participated. During the operation 579 individuals were interviewed. According to the Annual Report a total of 273 Chinese and 306 Indian nationals were singled out for what are described as second line checks and interviews in 314 airports, 205 sea ports and 60 external land borders. As a result of the disturbance of the 579 travelers, 15 people were refused entry, fourteen of them apparently seeking to cross the border illegally and one in the transit area of Helsinki airport. The proportionality of the number of air and sea ports disrupted by this operation, the involvement of so many countries and their border guards when taking into account the paucity of results (15 people refused entry) is highly questionable. The solidity of FRONTEX’s intelligence in its risk analysis must be questioned as a result. The consequence for the 579 individuals, however is the most problematic. They were singled out on the basis of their nationality as a potential risk to the external frontier of the EU. On the basis of their passport they were subjected to secondary checks and interviews irrespective of the fact that virtually all of them fulfilled the requirements of the Schengen Borders code for entry into the EU. Were they offered any compensation for the disruption to their lives as a result of questionable intelligence which FRONTEX had provided to the Member States? Turning, then to FRONTEX’s activities coordinating joint return operations, according to the FRONTEX Annual Report 2007, it assisted in the organization of eleven joint return operations. Germany organized three returns with participation from Switzerland, Spain, Italy, Luxembourg, Poland, France and the Netherlands. The first two resulted in 54 people being sent to Cameroon, Ghana and Togo. The final one resulted in 13 people being returned to Togo and Benin, though according to the report originally the destinations had been Togo and Guinea. There is no explanation why there was a change of destination. This also stands out as the smallest number of persons returned in a joint operation though the largest number was in an operation coordinated by Spain together with France and Italy (co-financed by the EC) where 75 persons were returned to Ecuador and Colombia (both countries from which substantial numbers of asylum seekers come to the EU). One of the problems with joint operations, is their practical organization. State authorities must signal in advance how many seats they want to fill on a joint return operation flight. They need to make sure that

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they have the correct number of persons ready to board the flight at the right time and those persons must be nationals of or admissible to the state where the flight is going. This all points in the direction of detention for those individuals who are chosen for a joint return flight at least in the days before the flight is to depart. Not infrequently there are problems regarding the legal status of individuals chosen for the flights, for instance they introduce a new application to remain on the territory which the courts determine must be given suspensive effect. The result for the state authorities is either fail to fill a seat for which they have already paid in a joint return flight or find someone else to send to that country. Anecdotal evidence indicates that in such circumstances, state interest tends to settle on persons who are ‘easy’ to return (ie easy to find and unlikely to resist) such as older persons or women with young children. Finally, it is worth stopping briefly at the FRONTEX operation ZARATHUSTRA. This was carried out between 26 March 2008 and 14 April 2008. The budget was €236,390. Its focus was on detection of illegal migrants from Iraq and Afghanistan at the European external air borders. Apparently, “60 illegal migration related incidents were detected, 16 refusals and 15 forged documents were identified.”26 Among the participating states was Austria. According to UNHCR’s Statistical Yearbook 2007, Table 12, 79% of Iraqis who seek asylum in Austria are given protection. For Afghans the figure is 84%. The argument is often made that states are not required to assist refugees to arrive on their territory, only not to refoule them back to a state where they would suffer persecution. Nonetheless, participation in a joint operation designed to prevent persons who seek protection in substantial numbers in a state and who receive protection in very high percentages in that state raises serious questions about the duty of good faith to the UN Convention relating to the status of refugees. The question of access to European asylum systems is then crucial. The differential of locus between the practices of policing and the practices of rights is particularly clear, even if it is only one example of the disjunction voluntary or not between policing, space and law.27 The logic of policing at a distance goes deeper as it set up what we have called an (in)security continuum justifying internally a governmentality of unease.28

26

27

28

http://www.frontex.europa.eu/examples_of_accomplished_operati/art28.html (accessed 4 November 2009). Tugba Basaran, Geographies of Security: Security, Law and Space in Liberal States (Cambridge University, 2008), 192. Didier Bigo, “Security and Immigration: Towards a Governmentality of Unease,” Alternatives 27 (2002): 63; “Global (in)Security: The Field of the Professionals of Unease Management and the Ban-Opticon,” Traces: A Multilingual Series of Cultural Theory and Translation 4 (2006): 109–157.


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4. Policing at a distance – extraterritorial controls – reshaping of democratic identity Surprisingly, although FRONTEX was already established in 2005, it was not the only international organization carrying out operations against ‘illegal immigrants’ in the Mediterranean. According to a press release of 25 March 2006 from NATO, it too was assisting a Member State, Greece in an illegal immigration operation. According to NATO “In the course of conducting counter-terrorism operations in the Mediterranean Sea, NATO ships assigned to Operation Active Endeavour assisted Greek law enforcement agencies in the prevention of illegal immigration.” It would seem that FRONTEX had a competitor on the ground. Vice Admiral Roberto Cesaretti, Commander of NATO Maritime Forces in the Mediterranean is quoted as saying “I am delighted we have been able to assist the Greek authorities in bringing criminal to justice. Greece makes a significant contribution to fighting terrorism by providing ships and patrol aircraft to Operation Active Endeavour … Although this event relates to criminals, there is also a message for the terrorists here – we are looking for you, and when we find you – there will be no place to hide.” The assumption appears to be that the terrorists may have been thinking of hiding out on the little pateras and other small boats in the Mediterranean which carry people from the East and Southern shores to the northern shores. One of the main thrusts of the EU policy on integrated border management has been cooperation with third countries.29 In the previous section we examined some of the key problems around the FRONTEX actions just beyond the EU external border and the lack of coordination of its actions with the Schengen Borders Code. In order to remedy the position of FRONTEX as an actor with the same kind of global reach as NATO, agreement was needed with third countries. The kind of answer which FRONTEX provided to ILPA in January 2009 (see previous section) that its operations were legally based on agreements which a Member State, Spain had entered into twith a third country and that FRONTEX was unable to provide copies of them, was clearly problematic. Between 2006 and 2008 FRONTEX entered into Working Arrangements with Russia (14 September 2006); Ukraine (11 June 2007); Croatia, Georgia and Moldova (all in 2008) and an exchange of letters with UNHCR on 13 June 2008. None of the Working Arrangements specify a legal basis on which they were negotiated or agreed. Instead, they include a provision (paragraph 6) which states that “the present Terms of reference shall not be considered an international treaty. Practical implementation of its contents shall not be regarded as the

29

Peter Hobbing, Integrated Border Management at the EU Level (Brussels: CEPS, August 2005).

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fulfillment of international obligations by the European Union and [the other party]”. Interestingly, the Moldova Working Arrangement includes a further specification – when it entered into force (the date of signature) and that it is for an indefinite period. Further, it provides that either party can terminate the arrangement three months after giving written notice to this effect. In the interests of equality, the Moldova Arrangement states that there are two original copies one in English the other in Moldovan “both texts being equally authentic”. However, the Arrangement goes on to state that “in case of disagreement on the interpretation of the provisions of the present Working Arrangement, the English version shall prevail.” A comparison of the objectives of the Working Arrangements reveals both similarities and variations in the relations of FRONTEX with the five countries. The common provisions are the only ones which can be found in the Russia Arrangement and they are two: to counter irregular migration by means of Border Control; and to strengthen law and public order and security at the borders between the EU Member States and Russia. In the Ukraine Arrangement, countering irregular migration is supplemented by the objective of countering related cross-border crime by means of border control. Thus there is an elision of cross borders, crime and border controls. The Ukraine Arrangement also includes a further objective: to develop good relations and mutual trust between border guard authorities at the borders between EU Member States and Ukraine. The Croatia Arrangement varies yet again, while the key focus is counter irregular migration, it includes in addition to cross border crime, strengthening security at the borders between the EU Member States and the Republic of Croatia. This might seem somewhat galling for a candidate state which is hoping to abolish border controls between itself and the EU. The Croatia Arrangement also includes the good relations provision as an objective. The Georgia Arrangement follows the pattern of the others but adds a further element to its objectives: to facilitate measures taken by FRONTEX and the MIA Border Police of Georgia. The same wording is also to be found in the Moldova Arrangement. While the EU uses almost exclusively the term ‘illegal migration’ it is heartening that in these Arrangements the term is avoided in favour of ‘irregular migration’. The difference is of course enormous. At border crossing points between the states, the vast majority of persons crossing will be nationals of the states. Thus the arrangements will have their greatest effect (assuming they have an effect) on nationals of the states involved. If these persons would have been designated in advance as illegal migrants, before they leave their country of origin, the consequence would be that for the purposes of the Arrangements, anyone in the state could be treated by FRONTEX as a potential criminal. The approach of NATO in its 2006 Mediterranean adventure would be the norm.


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Moving then to the content of the Arrangements, the Russian one sets the stage with three contents: active discussions on development at [a] technical level of border procedures, including matters aiming at more efficient border control, best practices, improvement of technical equipment and technological upgrading at the borders; improvement of interaction between command/management structures and units responsible for border control; and coordination of joint operational measures for maintaining and improving border management, including elaboration of ideas on technical improvement. There is a heavy emphasis on hardware – it would seem that at the heart of the Arrangements is the possibility that technology equipments will be shared across the border and perhaps EU funding to assist the upgrading of Russian material. The Ukraine Arrangement has quite a different set of contents notwithstanding the similarity of objectives. There are five contents: development of activities in information exchange and risk analysis; development of field training activities and research; coordination of joint operation measures and pilot projects for maintaining and improving border controls; active discussion on development at [a] technical level of border procedures; and improvement of interaction between command/management structures and units responsible for border controls. Here the teaching objective of FRONTEX comes out more clearly. The activities will allow FRONTEX to teach the Ukrainian border guards how to do European border control. The EU procedures on border controls are clearly intended to set the standard against which and in respect of which the Ukrainian border controls are to be measured. Participation in the EU risk analysis depends on the development of the training activities etc. The Croatia Arrangement is much more elaborated. Here there is evidence of the preparation towards accession of Croatia to the EU. The Croatian border guards are required to provide information to FRONTEX in order to enable it to carry out its tasks under its founding regulation. On the Croatian side restrictions will only be tolerated where they are justified due to legal or operational reasons. In return the Croatians will be entitled to have a national contact who participates as an observer in the FRONTEX Risk Analysis Network. The Croatians will have access to the Annual FRONTEX Risk Analysis reports but not necessarily to the tailored ones or other risk analysis information. The Croatians will undergo yet more training and technical cooperation. In return the Croatian side may be invited, as observers, to participate in joint operations. Further, FRONTEX coordinated joint operations at the borders of Croatia will be conducted in close cooperation and participation of the Croatians. At least under the Arrangement, the EU does not seek permission to undertake operations on the Croatian border without informing the Croatian border guards. Finally, there is the possibility of participation in joint return operations and

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pilot projects for the Croatians. Presumably the interest of the Croatians in the joint returns is to reduce the cost of returning individuals to far away places. It is not entirely sure what the pilot projects covers, but this may well be a heading which need to be watched closely. The Georgia and the Moldova Arrangements are the same and are less extensive than their Croatian counterpart as regards the contents with one interesting exception. Here activities are limited to five areas: information exchange and risk analysis; training and research; joint operational measures and pilot projects; development at the technical level of border procedures; and operational interoperability between Georgia and the EU. The last item in the list is interesting. As the EU has moved to greater interoperability in border control but also policing with a fair amount of resistance both within interior and justice ministries and also civil society,30 it appears it is planning to share information with Georgia and Moldova. Finally, the Arrangements provide for how the work will take place under the heading “Organisation”. Once again the Arrangements converge at this point and the similarities among them outweigh their differences. Basically there are three activities which are covered under this heading: structured dialogue on operational cooperation at a high level – the Executive Director of FRONTEX and his or her counterpart in the other state; daily contact via agreed points of contact and possibly expert working groups; and facilitation of FRONTEX and the other parties’ work. Only the Georgia and Moldova Arrangements do not include the facilitation provision. While FRONTEX has been pursuing arrangements within the neighbourhood and with the Russian Federation, concerns about its role in international protection were also becoming more important. Notwithstanding an informal arrangement whereby a UNHCR official was assigned to FRONTEX, formal undertakings were considered more appropriate. On 13 June 2008, an Exchange of Letters between UNHCR and FRONTEX was agreed. In comparison with the Arrangements, this Exchange of Letters is much more professional in its appearance and contents. Clearly there has been some attention paid to the legal form – an Exchange of Letters is a recognized instrument in international relations – and the commitments are much more carefully considered. The objective of the exchange of letters is to establish a framework for cooperation between UNHCR and FRONTEX with the view to contributing to an efficient border

30

Thierry Balzacq, Didier Bigo, Sergio Carrera and Elspeth Guild, Security and the Two-Level Game: The Treaty of Prüm, the EU and the Management of Threats (Brussels: CEPS, January 2006).


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management system fully compliant with Member States’ international protection obligations “and, in particular, with respect to the principle of nonrefoulement”. In order to achieve the objective, six activities are foreseen: regular consultation and appropriate levels; exchange of information and expertise on migratory movements towards the EU; preparation of training materials, tools and participation in border management; sharing information on joint operations; and other ad hoc activities. The implementation and evaluation of the Exchange of Letters requires an annual review. The Exchange appears very cautious, neither side seems to have committed itself to much. It is hoped that the first annual review will be made public so that researchers and civil society can be reassured that UNHCR is able to play an important role in ensuring that refugees are able to access protection in the EU notwithstanding the development of an external border control beyond the EU border. The EU’s external border police face a formidable task in establishing credibility both within the EU and externally. The heavy focus on operation cooperation both with the Member States and third countries only distracts attention away from the key question – what law is being implemented and how should it be implemented. So long at FRONTEX accepts that it is the Member States which determine the law to be applied and avoid the question of entitlements to cross borders by referring to third country nationals generically as illegal migrants it is unlikely that the legitimacy which it needs will be accumulated. The emphasis on the collaboration against “illegals”, on exchange of technologies of coercion and surveillance, on training of local police as the main activities to promote an extended area of freedom, security and justice, is neither a security agenda developing protection, or a freedom agenda promoting rights of access, it is a coercive agenda which turns stability into immobility as a value, or which seeks to transform foreigners into docile subjects. It has effects not only on them but also on us and on our democratic practices.

5. Conclusions It may be that the European Union has been, more by accident than by a conscientious strategy, the first area where it has become clear that the relation between border and control needs to be reframed within the notion of freedom of movement, importance of mobility beyond economic advantages, and it has created tensions between the will to extend control over the individuals on the move on one hand, and on the other hand the idea that multiplicity, diversity and passage are core values of democracies. Etienne Balibar, Jacque Rancière, Sandro Mezzadra have all tried in their work to provide us with a different sense of a world of passage, of Europe as a

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border itself.31 It is a philosophy which refuses both the interstate order as a just order, and a neo-liberal globalisation of a world without borders but still with exploitation inside a global cosmopolitan empire. It takes the individual seriously and as a subject of right, not as a number in a crowd, a drop of water in a flow, a false positive in a continuous flow of information. It is from this perspective that we have examined the changing nature of the frontiers of Europe and the EU’s relationship with policing at a distance.

31

Etienne Balibar, Les Frontières De La Démocratie, Cahiers Libres. Essais (Paris: La Découverte, 1992); Etienne Balibar, Nous, Citoyens d’Europe? Les Frontières, L’État, Le Peuple (Paris: La Découverte, 2001); Marie-Louise Mallet, Hélène Cixous, Michaël Levinas, Michel Deguy, and Etienne Balibar, Le Passage des Frontières: Autour du Travail de Jacques Derrida, Collection La Philosophie en Effet (Paris: Galilée, 1994); Jacques Rancière, On the Shores of Politics (London and New York: Verso, 1995); Jean Borreil, Christine Buci-Glucksmann, Geneviève Fraisse, and Jacques Rancière, La Raison Nomade (Paris: Payot, 1993); Charlotte Nordmann, Bourdieu, Rancière: La Politique entre Sociologiee et Philosophie (Paris: Amsterdam, 2006); Jacques Rancière, Disagreement: Politics and Philosophy (Minneapolis: University of Minnesota Press, 1999); Jacques Rancière On the Shores of Politics, Radical Thinkers (London: Verso, 2007); Jacques Rancière and Steve Corcoran, Hatred of Democracy (London New York: Verso, 2007); Sandro Mezzadra and Bridget Anderson, I Confini della Libertà: Per Un’analisi Politica delle Migrazioni Contemporanee (Roma: DeriveApprodi, 2004).

Part IV State Practice

Migration Control at Sea: The Italian Case Alessia di Pascale 1. Introduction Migration pressure has increased over the last years and it is expected to intensify in the coming decades. From the 1980s onwards, the level of international migration has risen by more than 60% and around 175 million people are today likely to be migrants from their own countries.1 Out of 456 million inhabitants living in the European Union in 2004, it is estimated that some 34–37 million were international migrants.2 By comparison with these figures, the number of irregular migrants that arrived to the coasts of Italy, Spain, Greece and Malta in the same year amounted to approximately 30–40,000 people.3 Although the figures may vary from year to year, and this estimate takes into account only persons intercepted when they reach the European countries concerned (without considering the high number of people who die during their perilous journey, in the desert or across the Mediterranean Sea) it shows that clandestine migration by sea in the Mediterranean area represents only a small part of a rather significant phenomenon. Despite its minor influence on overall migration flows to Europe, there is growing concern in Europe over irregular migration across the Mediterranean.

1 2

3

International Organization for Migration, World Migration Report, 2005. Rainer Münz, Migrants, Labour Market and Integration in Europe: A comparative analysis (Global Migration Perspectives no. 16, 2004), available at http://www.gcim.org/attachements/GMP%20 No%2016.pdf (accessed 4 November 2009). In 2007, the number of illegal migrants intercepted at sea was reported as follows: 20,445 in Italy, 11,751 in Spain, 17,502 in Malta: Frontex General Report 2007. As pointed out by Paolo Cutitta, “Il controllo dell’immigrazione tra Nordafrica e Italia” in Libro Bianco: I Centri di Permanenza e Assistenza Temporanea in Italia, ed. Nicoletta Dentico and Maurizio Gressi (Rome: Comitato Diritti Umani, 2004), these data are to be considered incomplete since they do not take into account, among others, a) migrants who have been able to elude controls, settling on the Italian territory or continuing their travel to another European country; b) migrants who have died crossing the Mediterranean. In addition, there are many other people wishing to reach European countries but who are unable to travel for several reasons. The ICMPD estimates that between 100,000 and 120,000 would-be migrants try to cross the Mediterranean each year. See International Centre for Migration Policy Development, Irregular Transit Migration in the Mediterranean – Some facts, futures and insights (Vienna, 2004).


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Alessia di Pascale

Since 2002, the need to reinforce the fight against illegal immigration, to control on the southern maritime border and to cooperate with countries of origin and transit, has been emphasised by several member States at the EU level, and special attention has been devoted to these issues during their respective EU presidencies. Member States have advocated a broad range of policy measures, ranging from development assistance to the source countries of migration, to the opening up of channels for legal immigration, although one main policy focus thus far has been on more security-oriented policies, and in particular the strengthening of border controls along the EU’s southern borders.4 Not surprisingly, stronger emphasis was put by the most concerned countries, i.e. countries bordering the Mediterranean Sea such as Spain, Italy, Greece and Malta. This chapter will focus on one such bordering country, Italy, and explore the strategy enacted to prevent irregular migration by sea, highlighting on the one hand, the features thereof and on the other, concerns which have been raised and the potential conflict with human rights obligations. The first part will consist of an analysis of the Italian approach along three main axes that may be schematised as follows: a) reinforcement and specification of legislation on extraterritorial control at sea; b) enhancing collaboration with and involvement of other EU member States and concerned countries at multilateral level; c) strengthening of bilateral cooperation with countries of origin and transit. This strategy has developed both through legislative instruments and through diplomatic action conducted in different fora. The second part will address critical issues that have particular relevance. It appears in fact that the distinction between rescue obligations and facilitating illegal immigration is sometimes blurred, and that ships are discouraged from providing assistance to people at sea, thus highlighting the possible conflict between the right to life and the need to reduce illegal migration. There are also concerns in relation to the involvement of third countries that do not apply the 1951 Geneva Convention safeguards in borders patrol or in departure prevention. Similarly, the often criticised application of measures of collective expulsion and refusal of entry may result in human rights violations in so far as they do not allow the examination of the individual case of potential refugees.

4

Derek Lutterbeck, Coping with Europe’s Boat People. Trends and Policy Dilemmas in Controlling the EU’s Mediterranean Borders, ISPI Policy Brief no. 76(Milan: Istituto per gli Studi di Politica Internazionale, 2008), available at http://www.ispionline.it/it/documents/PB_76_2008.pdf (accessed 4 November 2009).

Migration Control at Sea: The Italian Case

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2. The legislative strategy to fight illegal migration by sea For many years, Italy, like many other EU countries, has faced large-scale irregular migration, which is often managed by organised crime groups, being a highprofit generating activity.5 Yet, as mentioned above, arrivals by sea appear to be marginal by comparison with the total figures of irregular migrants on the Italian territory: between 2004 and 2007, 78,755 individuals arrived by sea (an average of 20,000 people per year) and, although the flows have been variable and there was an increase in 2008, they are estimated to have represented about 10-13% of irregular migrants.6 Irregular presence is mostly (approximately 64%) made up of visa or “permit” overstayers (i.e. people who entered regularly but remained on the territory in breach of immigration laws, because their visa or permit of stay had expired), and 23% are people that have passed through border control fraudulently. The fight against illegal migration has thus been for a long time one of the main concerns of Italian policy relating to migration. Recent debates in the media have confirmed that there is a growing concern over irregular migration, which is considered as a major cause of the increasing criminality rate. Within this framework, containing arrivals at Italian coasts has been considered an absolute priority: the images of boats overcrowded with desperate migrants arriving from Albania at the beginning of the nineties have left an indelible memory in the public opinion which is facing a growing feeling of insecurity.7 As has been acknowledged by the Ministry of Interior “the popularity of this phenomenon is 5

6

7

“There are strong migratory flows everywhere, just as there are illegal entries and undocumented presence, but the phenomenon is particularly acute in Italy. It is estimated that about two-thirds of foreigners in Italy have spent some time in the country under illegal stay conditions. Italy attracts illegal immigration more than other countries due to the difficulty of controlling such extensive borders and above all because of the size of its informal economy”: FIERI (Forum Internazionale ed Europeo di Ricerche sull’Immigrazione), Main Features of Italian Immigration Flows and Stock (October 2008), available at: http://www.fieri.it/download.php?fileID=177& lang=ita (accessed 4 November 2009). Lorenzo Coslovi, Brevi Note sull’Immigrazione via Mare in Italia e in Spagna (Rome: Centro Studi di Politica Internazionale, 2007), available at http://www.cespi.it/PDF/mig-mare.pdf (accessed 4 November 2009); Paola Monzini, Il Traffico di Migranti per Mare Verso l’Italia. Sviluppi recenti (2004–2008), CESPI Working Paper 43/2008 (Rome: Centro Studi di Politica Internazionale, 2008). “In August 1991, as many as 10,000 Albanians arrived on the dangerously overcrowded commercial ship Vlora…. At the national level, the image of these Albanians was now that of violent beggars wearing rags in need of rescue, nourishment, and a wash”: Maurizio Albahari, Death and the Moral State: Making Borders and Sovereignty at the Southern Edges of Europe (San Diego: Center for Comparative Immigration Studies, Working Paper 136, June 2006), 5.

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probably grounded in the greater visibility of this modality of irregular entry in comparison with other more diffuse, but less spectacular practices.”8 An analysis of Italian legislation on immigration may help to better comprehend the underlying strategy behind the policy that has been developed by the Government over the years. In respect of the first wave of migratory flows in the late sixties/early seventies there was neither a debate on the transformation of Italy into an immigration country nor a real political plan on the matter. The need to systematically regulate the issue became increasingly urgent as the foreign presence increased, although the first comprehensive legislation on the status of foreigners and immigration matters was only adopted in 1998 (hereinafter referred to as the “Single Text”).9 Since then, many legislative amendments have restricted the rules on entry and stay, yet without introducing comprehensive regulation of asylum.10 The Single Text of 1998 already provided for measures against illegal migration by sea which were mainly focused on return policy and penal sanctions for smugglers. These instruments were subsequently reinforced in 2002. These 2002 amendments also paid increasing attention to relations with third countries, which were considered as invaluable partners in the reduction and better management of migration flows.11 The purpose of containing and governing

8

9

10

11

Ministero dell’Interno, Rapporto sulla Criminalità in Italia. Analisi, Prevenzione, Contrasto (Rome: 2007). Immigration matters are governed by the Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero (Legislative Decree no. 286/1998 with subsequent amendments, the so-called “Single Text on Immigration and the Status of Foreigners”). In 1996 “…the newly established Government undertook to draft a new law reforming migration matters, to regulate entry and work, integration, control of the territory, expulsions and international cooperation. The new rules contained in the so-called ‘Turco-Napoletano’ Law approved in 1998, were then incorporated into a Single Text that brought together for the first time all relevant legislation in force and was completed by a legislative decree”: Luca Einaudi, Le Politiche di Immigrazione in Italia dall’Unità a Oggi (Rome: Laterza, 2007). For an analysis of Italian legislation on immigration, see Diritto degli Stranieri, ed. Bruno Nascimbene (Milan: Giuffré, 2004); Bruno Nascimbene, “Orientamenti e Norme Nazionali in Materia di Immigrazione. L’incidenza del diritto internazionale e comunitario, le iniziative di riforma,” Rivista Italiana di Diritto Pubblico Comunitario (2008): 719–745. “We are aware that if we are to achieve significant results in terms of controlling migration and combating illegal immigration it is essential to enlist the cooperation of the immigrant’s home and transit countries. Constant bilateral diplomatic action and pressure on these countries is therefore a fundamentally important instrument in our work in this area, which has often produced concrete results…”: Andrea Bertozzi (Directorate General for Migration Policies – Ministry of Foreign Affairs), Italy’s Recent Change From An Emigration Country to An Immigration Country and Its Impact on Italy’s Refugee and Migration Policy, Rome, 15 November 2002, available at www.cicerofoundation.org/lectures/bertozzi_nov02.html (accessed 4 November 2009).


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entry flows is not only pursued through reinforcing border controls and coordination with other EU countries, but the Italian approach has also given crucial importance to reinforcing international cooperation with countries of origin and transit of would-be migrants. While such relationships should in principle not only aim at controlling and reducing migratory flows, but also at improving the administrative capacities of the these countries, reducing the causes at the origin of the migratory phenomenon, and promoting legal migration channels,12 the repression of criminal activities and the return of irregular migrants nevertheless play the most important role in bilateral relations in practice, with the other issues being mainly treated as functional to those objectives. Reinforcement and specification of legislation on extraterritorial control at sea The amendments brought to the Single Text in 2002 strengthened extraterritorial control at sea, by defining the power to inspect, visit or seize ships smuggling migrants, and by specifying the modalities of intervention at sea by police and military ships. The Single Text was also modified in relation to the treatment of seized means of transport used by the smugglers.13 Increased attention to the fight against illegal migration by sea is also demonstrated in practice: the Italian Government reinforced the initiatives aimed at the integrated management of borders, notably by sea, and figures relating to seizures of ships and arrests of smugglers show a sharp rise since 2006.14 If in the period 1998–2004 an average of one hundred ships were seized every year, such figures more than tripled in three years: 121 in 2004, 187 in 2005, and 394 in 2007. Similarly the number of arrested persons increased from 28 in 2004 to 172 in 2007.15 Pursuant to the new provisions introduced in 2002, Italian ships used for maritime law enforcement activities which encounter, in territorial waters or the contiguous zone, a ship which there is a good reason to believe is used for or involved in smuggling of migrants, may stop and inspect it. If there is evidence that it is involved in migrant smuggling, they may seize it and escort it into an

12

13

14

15

Alessandro Pansa, “Le Proposte del Governo Italiano a Livello Comunitario in Materia di Immigrazione” in Le Migrazioni: Una Sfida per il diritto internazionale, comunitario e interno, ed. Umberto Leanza (Naples: Editoriale Scientifica, 2005). Decree 4 April 2002, no. 51, converted with amendments into Law 7 June 2002, no. 106, amending Art. 12 of the Single Text on Immigration. Bozza di Documento programmatico relativo alla politica dell’immigrazione e degli Stranieri nel territorio dello Stato per il triennio 2007–2009. Monzini, above.

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Italian port.16 Doubts have been expressed regarding the scope of that provision – art. 9-bis, of Legislative Decree no. 286/1998 – since this norm corresponds to what Italy would be able to do if it had established a contiguous zone.17 Pursuant to the UN Convention on the Law of the Sea (‘UNCLOS’), a coastal State may establish a zone contiguous to the territorial sea and extending a maximum of twenty – four nautical miles from the baseline, by means of a formal proclamation made public to the international community. This is controversial, however, as no specific legislative measure has been adopted to indicate the external limits. The 2002 amendments can hardly be considered sufficient for this purpose, since the contiguous zone and the continental shelf do not have automatic effect, but require an express declaration made by a coastal State. This would imply that all the obligations arising from the existence of a contiguous zone are fully in force within the Italian legal system, whereas as regards the international community Italy is required to prove on a case by case basis, in the event of a dispute, that the concerned State had been made aware of the exercise of Italian will in this respect.18 Without prejudice to the institutional jurisdictions relating to national defence, ships of the Italian Navy may be used to assist with the activities referred to in art 9-bis.19 As far as intervention on the high seas is concerned, the powers may be exercised outside territorial waters, not only by the Navy, but also by ships operating for maritime law enforcement activities, within the limits laid down by Italian law, international law and bilateral or multilateral agreements, if the ship flies the Italian flag, but also that of another country, no flag or a flag of convenience.20 The interpretation of this provision also raises some questions in relation to its scope. It is not in doubt that Italian ships on police service on the high seas may stop, inspect and seize a ship with an Italian flag. However, as to ships without flags, the right to visit is regulated by Art. 110, para. 1, of

16 17

18

19 20

Art. 9-bis, Legislative Decree no. 286/1998. Tullio Scovazzi, “La Lotta all’Immigrazione Clandestina alla Luce del Diritto Internazionale del Mare,” Diritto, Immigrazione e Cittadinanza 1 (2003): 48–60. Pursuant to Article 33 of the UN Convention on the Law of the Sea, in a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea. Guido Camarda, “Tutela della vita umana in mare e difesa degli interessi dello Stato: i tentativi d’immigrazione clandestina”, Rivista di diritto dell’economia, dei Trasporti e dell’Ambiente 5 (2007) available at http://www.giureta.unipa.it/VolumeV2007/articoli/2_PUBL_12_01_2007.htm (accessed 4 November 2009). Art. 9-ter. Art. 9-quater.


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UNCLOS21 and Art. 8, para. 7, of the Smuggling Protocol, which allow boarding only in limited circumstances. The scope of Art. 110, para. 1, of UNCLOS, in relation to the right of visit, was examined by an Italian Court in a case involving naval units of the Guardia di Finanza.22 It concerned a monitoring operation carried out in August 2001 approximately 100 nautical miles from the Italian coast, which identified two fishing boats suspected of transporting irregular migrants. All the migrants were transferred to one of the boats, while the other set sail again. An Italian unit requested this fishing boat to stop since it was without a flag and did not bear any other sign allowing identification. The fishing boat did not obey, thus provoking the intervention of another unit that stopped it and found evidence of its criminal activity. The legitimacy of this action was assessed during the criminal proceedings in which the members of the crew were convicted for abetting illegal immigration. It is interesting to note that, according to the reasoning of the Court, the conduct of the Italian ships was lawful pursuant to Art. 110, para. 1, of UNCLOS, not only because of the absence of registration and flag of the fishing boats concerned, but also because of the presence of evidence which implicated them in criminal activity. The relevance of the evidence in assessing the lawfulness of the Italian action appears redundant, however, since pursuant to Art. 110, para. 1, of UNCLOS of the UN Convention it is sufficient that the ship is without flag or other elements allowing identification of its nationality.23 Foreign ships on the high seas could not be stopped, inspected or seized, unless pursuant to a bilateral agreement, or with the flag State’s authorization under the Smuggling Protocol (for States party to it). Art. 9-quater also refers to ships flying flags of convenience. Further to the adoption of the 2002 amendements, the question has arisen whether the Italian legislation, upholding an evolutionary interpretation of international law, permits the arrest, inspection and seizure of a foreign ship bearing a flag of convenience, in the event that the ship or the crew’s failings imply a real danger for the safety of navigation and/or for human life in the sea. Since proper control of the safety of navigation is a duty of the flag State, non-fulfilment would be an international wrongful act which might justify the 21

22 23

“Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109; (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.” Decision of the Court of Crotone, 27 September 2001, Il Diritto Marittimo, (2001): 907–923. Lorenzo Schiano di Pepe, “Diritto Internazionale e Traffico di Migranti per Mare: Alcune brevi note, nota a Trib. Crotone”, Il Diritto Marittimo (2003): 907–921.

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application of such counter-measures.24 This interpretation seems, however, to be rejected by Art. 7, para. 3, of the 2003 Decree (discussed further below) which omits any reference to the case of a ship flying a flag of convenience, and subjects the right of visit to completion of a complex procedure aimed at obtaining the prior authorization of the state concerned.25 For the purpose of making the management of borders more effective, in 2002 a General Directorate for migration and border police was set up in the Department for Public Security, within the Ministry of the Interior. Its tasks are to boost and coordinate border control activities and the fight against illegal immigration, as well as engaging in activities assigned to the public security authorities in the matter of entry and stay of foreigners. In order to better clarify and specify the competences of the different authorities involved in the control of immigration at sea, an inter-ministerial Decree was adopted in 2003.26 Such clarifications had become necessary in order to avoid overlaps in control activity. Based upon the new provisions the Navy, the police and the Capitaneria di Porto are all involved in the activities of control and deterrence at sea, under the coordination of the General Directorate for Immigration and Border Police. The General Directorate must plan the interventions to be carried out, taking due account of agreements entered into with the countries of origin of the intercepted ships. For this purpose, it must be promptly informed as soon as a suspected ship is identified. Pursuant to this Decree, prevention activity is articulated at three levels: – International cooperation. International cooperation with the countries of origin or transit with a mainly diplomatic character with a view to preventing the phenomenon at origin; – Coordinated controls in international waters. These are carried out by the Navy, Guardia di Finanza and the Capitanerie di Porto. These controls involve police powers to monitor, identify and control ships and irregular migratory flows; – Coordinated controls in territorial waters. These are performed by ships carrying out police activities. 24 25

26

Scovazzi, above. Pursuant to Art. 7 of the Interministerial Decree of 14 July 2003: “In International waters, if further to inquiry of flag the requirements subsist, the right of visit may be exercised. In the event of ships with a foreign flag, the exercise of such right shall be formally requested by the Ministry of Interior once the authorization, through the Ministry of Foreign affairs, has been obtained. Similarly, the exercise of the right of visit may be requested by the Ministry of Home Affairs also in the event of interventions to be carried out on ships without a flag and whose port of departure is unknown”. Interministerial Decree of 14 July 2003.


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Controls in territorial waters are thus performed by the Police, whereas in international waters they are performed by the Navy, with the latter only carrying out support actions in territorial waters and in the contiguous zone. Since, however, the establishment of a contiguous zone remains controversial, the lawfulness of interventions outside the territorial waters, as well as the above mentioned allocation of competences, still leaves room for doubt. Moreover, the 2003 Decree has established a coordination area extending until the contiguous zone, within which the Guardia di Finanza must coordinate all the activities related to the fight against illegal migration. As has been pointed out, failing a specific delimitation of external borders in general, or vis-à-vis adjacent and coastal States, it is not clear how the Guardia di Finanza may effectively coordinate the activities of the other bodies, since they are not aware of how far from the coast they are allowed to operate.27 The Italian coasts, in fact, are not situated at forty-eight nautical miles from the coasts of neighbouring countries (the Balkans, but also France and Tunisia). The area for the exercise of these powers should be clearly stated in order to avoid the commission of an illicit act by the Italian authorities, which would involve the exercise of these powers in a maritime zone falling outside their jurisdiction and being part of another’s country territory. Some of the provisions contained in the recently enacted legislation on the matter of illegal immigration by sea therefore require clarification. Taking into due account the sensitiveness of the issue, more precision, and a final clarification in relation to the establishment of the contiguous zone, are desirable.

3. Enhancing cooperation and the involvement of other EU member States and concerned countries at multilateral level Italy’s approach over recent years has been characterised by a strong multilateral approach, both at the EU level and at a wider international level. As to the EU level, the period of the Italian Presidency in the second half of 2003 was certainly an important moment to give impetus to this Italian strategy. The Presidency of the European Union came back to Italy just after the Thessaloniki Summit which had put the fight against irregular migration at the centre of the agenda, together with support for cooperation with third countries, notably in the field of readmission/return, as well as border control and the interception of illegal migrants by sea. Reinforcing international cooperation with third countries, through their direct involvement in operational activities, was one of the pillars of the Italian Presidency. The action carried out by Italy at the European level was articulated

27

Scovazzi, above.

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over three priorities: 1) progressive implementation of an integrated management of external borders and sharing of the costs among member States; 2) reinforcement of cooperation and partnership with third countries; and 3) common management of migratory flows.28 Based upon the practice consolidated over the years in bilateral relations with member States and third countries,29 Italy promoted a series of operations aimed at reducing the flows of irregular migrants through the Mediterranean: cooperation in the form of joint patrols (among member States and with the participation of third countries); international collaboration at the ports of States with direct sea connections or in the countries of origin of flows; and, joint management of irregular migrants arrested.30 At the European level, Italy has always highlighted the need for a fair sharing of responsibilities and financial burdens among member States, in order to provide assistance to those countries that, due to their geographical position, incur the highest costs.31 The need to elaborate a mechanism of evaluation and monitoring of the countries that do not properly and efficaciously collaborate in the reduction of migratory flows was also underlined. On the other hand, Italy has stressed the need to ensure appropriate financial assistance to third countries, in order to encourage their effective contribution to the management of migratory flows.32 Italy has also continued to emphasise that operational activity alone will not be sufficient to substantially limit migration from North Africa. The need to promote diplomatic action through the signature of regional agreements between EU and North-African countries appears fundamental. 28 29

30 31

32

Pansa, above. An important precedent is provided by the cooperation developed between Italy and Albania in the aftermath of the Albanian refugee crisis. From 1997 onwards, Italy established a number of police assistance missions in Albania with the aim of supporting the Albanian police in combating migration and human trafficking from its shores towards Italy: Lutterbeck, above. Pansa, above. “All this led several Member State to support the idea of setting a common European service for safeguarding EU external borders. The main arguments in favour of such a move were that it would provide an instrument of solidarity for sharing the burden of controlling external borders in the enlarged Union and allow for a better use of personnel and technical resources, as well as of available expertise. The idea of creating a European Border Police was presented in early 2001 in the Council as a joint initiative of Germany and Italy. Following this, under Italian leadership, a group of countries including Belgium, France, Germany, Spain embarked on a feasibility study on such a European Border Police”: Jorg Monar, “The European Union’s ‘Integrated Management’ of External Borders”, in ed. Joan De Bardeleben, Soft or Hard Borders? Managing the Divide in an Enlarged Europe, (Aldershot: Ashgate, 2005), 145–161. Italy’s Contribution to the consultation process promoted by the EU Commission from September 2007 to April 2008 for the review of the EU budget for 2008–2009, accessible at ec.europa.eu/budget/reform/issues/read_en.htm.


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Under the Italian Presidency, the JHA Council of 27 November 2003 adopted a programme of measures in relation to the fight against illegal migration by sea which emphasised the need to reinforce international relations with third countries of origin or transit of illegal immigration flows.33 The Council conclusions also made reference to the notion of a “virtual sea border”, which would allow a reinforcement of the legal borders of member States, through operations carried out jointly, and through the adoption of specific measures in countries of origin and transit of illegal migratory flows.34 It was also during the Italian Presidency that the Italian Government submitted a proposal for the establishment of an agency for the integrated management of EU borders, and the setting up of a common unit, i.e. a common entity of border police of member States for the management of external borders through common patrols, which led to the establishment of Frontex.35 As to reinforcement of cooperation with the other coastal countries, it was an Italian initiative36 that brought about the implementation of the ‘Nettuno’ action plan, establishing a joint control system in the Central and Eastern Mediterranean, bringing together many EU member States with their naval and air units. This action plan was intended to widen and improve the Ulysses operation that had been launched in 2003, involving five member States (France, UK, Portugal, Spain and Italy). Italy has also pursued collaboration with the countries of the other coast of the Mediterranean, within the framework of bilateral cooperation between Ministries of Home Affairs of the countries concerned. With the participation of Malta, it worked on the implementation of a plan of joint patrols with Tunisia and Libya in the Central Mediterranean. More recently, Italy set up the so-called ‘Quadro Group’ together with Malta, Cyprus and Greece: this initiative aims to keep a high degree of attention upon the Southern European illegal migration issue. The second meeting of the Quadro Group in January 2009 was hosted by Italy and called for an intensification of the EU’s efforts to conclude ongoing negotiations with third countries, to open negotiations with key countries of origin, to provide Frontex with the necessary financial and 33

34 35

36

See Press release 14995/03, 2548th Council Meeting “Justice and Home Affairs”, Brussels, 27 and 28 November 2003, chaired by Italy. Conclusions of the JHA Council of 27 and 28 November 2003, 14995/03 (Press 334). The Italian Presidency presented a text that fixed the parameters for drafting the Proposal for the creation of a Border Management Agency, and for subsequent negotiations. The Act was approved by the JHA Council of 27 November 2003. See Alesandro Pansa (Head of Directorate for Border Police at the Ministry of Interior), Politiche comunitarie dell’Immigrazione e Sicurezza delle Frontiere nel Mediterraneo”, speech delivered at the European Conference on Judicial Cooperation, Palermo 24 June 2005, http://www.nuoveschiavitu.it/ns/doc_leggi/Relazione_ Pansa.pdf (accessed 4 November 2009). See Pansa, note 12, above.

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operational resources, and to provide for burden sharing between member States for people rescued at sea during interception operations.37 Since the establishment of Frontex and the start of its activity, Italy has taken part in joint patrols. It was therefore involved in the first initiative of Frontex in 2006 (‘Nautilus’) both within the expert group that worked with Maltese authorities in order to identify migrants for the purpose of their return, and in the first joint naval operation which involved France, Germany, Greece, Italy and Malta. These common patrols were aimed at fighting irregular migration flows in the Central Mediterranean area, especially those directed towards Malta and Italy. Italy also took part to the Hera Frontex mission which was conducted along the Canary Islands and which involved seven member States. This mission was different from the others, since it was based on bilateral agreements that were in force between Spain and Senegal and Mauritania, and these countries have been actively involved in the joint interdiction operations, with the participation of ships and personnel. As has been recently pointed out by Ilka Laitinen, “the Libyan authorities’ refusal to stem the flow of departures from their country remains the main reason for illegal immigrant crossings”.38 Italy has for a long time been very concerned about this issue and has therefore promoted at the European level an approach aimed at involving Libya in patrol operations and control of departures, in order to stop the flows at the origin of today’s main transit route for irregular migration by sea.

4. Strengthening of bilateral cooperation with countries of origin and transit The policy put in place by Italian governments also includes the reinforcement of bilateral cooperation with countries of origin and transit, which are therefore directly involved in the fight against irregular migration by sea. In this respect, the collaboration with Albania from the 1990s is often mentioned as an exemplary case of cooperation with a country of origin for the purpose of reducing illegal migration by sea. Migratory flows from Albania have been limited over the last decade, as close cooperation with Albanian authorities in the 1990s, and the Italian presence in the ports of departure of the Balkan country, have led to a

37

38

“Quadro Group report stresses solidarity and burden sharing”, Times of Malta, 13 January 2009. “EU member states’ assistance is a must if Frontex operations are to succeed”, Times of Malta, 6 October 2008.


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remarkable reduction of the arrivals along the Apulian coasts after 2000.39 Currently, most undocumented traffic into Italy is from North Africa towards Sicily and most attention has consequently shifted to the basin of Mediterranean: Italy has in particular tried to bring the attention of Southern Mediterranean countries to the topics of irregular migration and trafficking of human beings. Cooperation with Albania The first significant migration flows from Albania to Italy occurred early in the 1990s, soon after the collapse of the Communist regime. In the summer of 1991, thousands of Albanians emigrated abroad and, due to their geographical proximity, their main destinations were Italy and Greece. It is estimated that during the initial three years of transition (1990–1993), more than 300,000 Albanians left the country in search of better living conditions. If the first boatload of Albanians that arrived in 1991 profoundly affected the Italian public opinion, concerns for massive migration flows from the country became a major political issue in Spring 1997, when the economic and social situation in the Balkan country deteriorated dramatically, plunging the country into chaos.40 For the purpose of facilitating control at sea and containing the huge flows arriving along the Apulian coasts, on 25 March 1997 an agreement was signed in the form of an exchange of letters.41 The agreement was followed on 2 April 1997 39

40

41

Jonathan Chaloff, Albania and Italy. Migration policies and their development relevance, A Survey of Innovative and ‘Development Friendly’ Practices in Albania and Italy (Rome: Centro Studi di Politica Internazionale, December 2008). The Albanian crisis started in January 1997, after several investment pyramid schemes collapsed, spread in the following weeks and exploded at the beginning of March. The proclamation of a state of emergency and the imposition of the curfew on 2 March provoked a popular rebellion. Italy was very concerned by the escalation of the crisis, both because of a possible propagation into the whole Balkan area, and because of its exposure to the risk of massive migration flows. The latter feared outcome actually took place, reaching its maximum intensity in the second half of March, exposing Italian accommodation centres to an exceptional pressure and provoking a strong reaction in Italian public opinion. Since it was not possible to carry out a joint coordinated action at the EU level, Italy supported a strong international response. In order to avoid a civil war and restore peaceful living conditions the UN Security Council approved Resolution 1011 for the dispatch of a multinational military contingent. For a historical reconstruction of the Albanian crisis and the Italian intervention, see, La crisi Albanese del 1997, ed. Andreas de Guttry and Fabrizio Pagani (Milan: Franco Angeli, 1999) and in particular the chapter by Stefano Grassi, “L’Italia e la Forza Multinazionale di Protezione. La gestione di una operazione multinazionale mediante una framework-nation”, ibid., 271–314. ‘Scambio di lettere relativo alla collaborazione per la prevenzione degli atti illeciti che ledono l’ordine giuridico nei due paesi e l’immediato aiuto umanitario quando è messa a rischio la vita di coloro che tentano di lasciare l’Albania,’ in Supplement to Gazzetta Ufficiale no. 163 of 15 July 1997.

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by a Protocol (entered into force on the third of April), which detailed the enforcement procedures and defined the type of technical measures that Italy could adopt in order to contain illegal migration by sea. The agreement was adopted by a simplified procedure, where consent is expressed through the exchange of the instruments constituting the treaty. In the short period of time between the conclusion of the exchange of letters and the enactment Protocol,42 a tragic accident occurred on 28 March 1997 in the Otranto Channel. At least 52 Albanian would-be immigrants lost their lives in the collision that took place on the high sea between the ship Sibilla of the Italian Navy and the motorboat Kates I Rades. Based upon a reconstruction of the facts provided by the Italian authorities, there was no intention to cause this collision: the Kates I Rades was first approached by the ship Zeffiro, of the Italian Navy, and identified as a motorboat with approximately 30 civilians on board. Despite the stop order issued by the Zefiro, the motorboat continued to head toward Italy. Subsequently, the ship Sibilla took over and approached the motorboat, requesting again to stop. During these manoeuvres, the Italian unit caused the turnover of the Kates I Rades and the consequent deaths.43 After eight years of proceedings, the Court of Brindisi convicted both the Italian and Albanian captains of “shipwreck and multiple manslaughter”: the first to three years in prison, the second to four years. Responsibility for the “accident” were attributed to both captains and was thus relegated to the individual level.44 From a legal perspective, this accident raises questions regarding the extent of the powers that may be legitimately exercised by a State to protect its territorial sphere from unauthorised entry. Although it was undisputed that the tragic event was caused unintentionally, it appears more controversial whether it was the consequence of a dangerous manoeuvre, which was disproportionate in relation to the purpose of stopping the ship. In this respect, some authors argue that there is a State obligation to limit coercive actions aimed at protecting its own territorial sphere, in order to avoid damage which is disproportionate to the risk of intrusion.45 42

43 44

45

Since the Protocol that should have defined the technical measures and enforcement procedures of the bilateral agreement had then not been adopted, it is questionable whether the Sibilla was entitled to carry out that intervention, Tullio Scovazzi, “Le Norme di Diritto Internazionale sull’Immigrazione Illegale via Mare con Particolare Riferimento ai Rapporti tra Albania e Italia” in de Gutry and Pagani, above. Ibid. “The larger chain of command, legal framework, discourses, and established practices already taking place in the Strait of Otranto and Italy and resulting in the shipwreck have not been discussed”: Albahari, above. Enzo Cannizzaro, “La Tutela della Sfera Territoriale da Intrusioni non Autorizzate: in margine al caso Sibilla,” Rivista di Diritto Internazionale 80 (1997): 421–424.


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Apart from this tragic accident, 1997 may be considered a turning year in the history of bilateral relations between the two countries. Not only had Italy been directly engaged in peace-keeping activities, leading the ‘Operation Alba’, the 7,000-person multinational security force aimed at helping to restore order and secure safe elections, but in July the same year it hosted an international conference on Albania in Rome. In that context, Italy ensured strong bilateral action for the reinforcement of democracy and the restoration of normality, through interventions focused on supporting all the sectors that needed assistance. Specific bilateral agreements were thus concluded in the fields of defence, interior and finance. Since achieving political and social stability was perceived as a major objective, Albania also became a key recipient of Italian development aid. As far as migration control was concerned, in November 1997 two agreements were signed: a readmission agreement and an arrangement for the employment of seasonal workers in Italy. Institution-building has also included the reinforcement of police cooperation. Over the years since 1997, protocols on the provision of assistance for the reorganization of the Albanian Police, the development of collaboration in the fight against criminality, and the setting up of an Italian liaison Office in Albania and of an Albanian liaison office in Italy, have been concluded and constantly renewed. An observatory on organised crime of the Direzione Investigativa Antimafia (DIA – Antimafia Investigation Department) and the National Antimafia Prosecutor were established in order to monitor trafficking and smuggling activities between the two countries more effectively.46 Since 1998, the police in the two countries have started to carry out coordinated actions: units of the Coast Guards and of the Guardia di Finanza were sent to Albania and specific training courses were organised for the local police. The latest police agreement was concluded in 2007 and set up a wide range of mechanisms to develop cooperation against organised crime involving the trafficking of human beings and illegal migration: provision of operational information, assistance in investigation activities, exchange of best practices on investigative experience and training in the analysis of criminal activities and in the fight against illegal trafficking. The intensification of controls on both sides of the Adriatic, including by the Italian Navy, has progressively reduced the possibility to depart and successfully 46

The DIA was established in the framework of the Department of Public Security in 1991, with the mission to carry out, in coordinated manner, intelligence activities targeting organised crime and to conduct investigation exclusively concerning mafia and mafia-related matters. DIA intelligence activities focus on the structures of criminal organisations, their national and international connections, their objectives and modus operandi as well as any other mafia criminal activities.

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reach the Italian coast.47 One of the most effective instruments has been the seizure of the boats used to transport irregular migrants. For this purpose, Italy strongly encouraged the adoption of a law by Albanian authorities that reinforced control on the manufacturing, use and sale of motorboats. Although it was of limited application until 2001, it proved to be extremely successful when it was enforced with greater rigour. Cooperation with southern Mediterranean countries In the 1990s, Italy started to exert pressure on the countries of North Africa in order to delocalise border controls to the south of the Mediterranean.48 The first instruments of collaboration were bilateral agreements concerning police cooperation and readmission in the countries of origin and transit of foreigners entering or staying illegally in Italy. Italy has entered into 30 readmission agreements, signed with member States of the European Union and third countries, five of which are African countries: Algeria, Morocco, Nigeria, Tunisia and most recently Egypt. In 1998, agreements were signed with Tunisia (readmission and police cooperation) and with Morocco (readmission), while the agreement with Algeria dates back to 1999 (followed in 2000 by an agreement on the movement of persons and a technical protocol). This policy was followed and developed though the conclusion of agreements with Egypt (2007) and Libya (please refer to the details below). Previously, in the absence of a formal readmission agreement, readmission with these countries had been carried out on the basis of police cooperation agreements, a practice which had been subject to much criticism and raised legitimacy doubts. In return, a number of countries which had signed readmission agreements were granted reserved immigration quotas, subject to their effective cooperation in the prevention of illegal migration flows. At the same time, several initiatives of technical assistance were undertaken. These have included the transfer of tools and equipments, as well as the organization of training courses, in order to improve the institutional and operational capacities of the competent authorities of the countries of origin and transit of migratory flows. Police officers have also been sent to Italian diplomatic and consular representations, to act as experts on migration issues.

47

48

Paola Monzini, “Il Traffico di Migranti per Via Marittima,” in L’Italia Promessa, Geopolitica e Dinamiche organizzative del Traffico di Migranti verso l’Italia, ed. Paola Monzini, Ferruccio Pastore, Giuseppe Sciortino, CESPI Working Paper 9/2004 (Rome: Centro Studi di Politica Internazionale, 2004). For a detailed analysis of the agreements entered into with North African countries, see Paolo Cutitta, “I Confini d’Europa a Sud del Mediterraneo,” in Migrazioni, Frontiere, Diritti, eds Paolo Cutitta and Fulvio Vassallo Paleologo (Naples: Editoriale Scientifica, 2006).


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Collaboration with Libya deserves a special mention, due to the strategic importance that Italy pays to the relationship with this country, indicated as the starting point for thousands illegal immigrants traveling to Europe from northern and sub-Saharan Africa, and because of the strong criticism that it has undergone. Libyan engagement in the field of migration has been the background to diplomatic activity by Italy at the EU level aimed at terminating the embargo against this country and at the enhancement of cooperation with the EU. The beginning of the cooperation between Italy and Libya may be dated back to the signature of the bilateral agreement of 13 December 2000 (in force since 22 December 2002) “for collaboration in the fight against terrorism, organised crime, illegal traffic of drugs and irregular migration”. There the two countries agreed to start to exchange information on the flows of illegal migration, and to ensure reciprocal assistance and cooperation in the fight against this phenomenon.49 On this basis, the respective Ministries of the Interior had a series of consultations, which led in July 2003 to the signature of an operational agreement between their police authorities, aimed at defining practical modalities of bilateral cooperation for the purpose of preventing irregular migration by sea and fighting organised crime. It appears that the Parties entered into a readmission agreement in 2004: while the terms of such agreement have not been disclosed, the high number of people who were returned starting that year seem to confirm its existence.50 By contrast, no agreement has been signed in relation to the treatment of the migrants concerned, nor to their possible return to the country of origin, such as to ensure that the human rights of the individuals intercepted at sea and handed over to the Libyan authorities are respected.51 In January 2006, a memorandum was signed on the states’ common engagement in the fight against irregular migration, and in December 2007, the collaboration between the two countries culminated in the signature of a protocol of cooperation aimed at dealing with irregular migration. The main terms of the agreement have been disclosed by the Ministry of the Interior: it is intended to intensify collaboration in the fight against criminal groups involved in trafficking in human beings and exploitation of irregular migration. Under the terms of the accord, the two countries have agreed to mount joint patrols of the Libyan coastline, and that Italy will supply six patrol vessels, to be staffed by Italian and

49 50

51

Gazzetta Ufficiale no. 111 of 15 May 2003, p. 53. “Readmission to Libya was carried out on the basis of agreements entered into with this country, which reproduce the agreements already in force with other Southern Mediterranean countries”: Chiara Favilli, “Quali Modalità di Conclusione degli Accordi Internazionali in Materia di Immigrazione?”, Rivista di Diritto Internazionale 88 (2005): 156–165. The statements rendered by the Ministry of the Interior further to a parliamentary question have indirectly confirmed its existence: ibid.

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Libyan officials. The joint task force will monitor coasts, ports and bays. The Ministry of Interior has pointed out that the deal was similar to the one reached years ago with Albania, which allowed Italy to significantly reduce the number of Albanian immigrants coming to its shores. Italian officers will provide assistance in relation to the training of personnel and the maintenance of the equipment and ships.52 An operational joint command, coordinated by a representative appointed by the Libyan Government and a Vice-Commandant appointed by the Italian Government, will also be set up. In return, the Italian Government will support cooperation programs with Libya at the EU level.53 At the end of August 2008,54 a treaty was signed between the two countries. It was meant to put an end to the dispute on claims relating to Italian colonialism and in this respect it provided for a $5 billion compensation package for the colonial era, which includes construction projects, student grants and pensions for Libyan soldiers who served with the Italians in World War II. In return, Libya is to ensure a more effective containment of the thousands of illegal migrants that try to reach Italian shores across the Mediterranean. Libya is in fact accused of not having adequately delivered on pledges over the past few years to eliminate the problem. Italy will also pay for $500 million worth of electronic monitoring devices on the Libyan coastline. The parties have agreed to intensify co-operation in the fight against irregular migration, on the basis of previous agreements and Protocols that are expressly recalled. To this purpose, the two

52

53

54

Some 16,500 illegal immigrants reached the Italian coasts in 2007 and are believed to have departed from Libya. In 2006 they had been almost 21,000, according to figures provided by the Interior Ministry which considers that such decrease is largely due to cooperation with Libya. http://www.interno.it/mininterno/export/sites/default/it/sezioni/sala_stampa/ comunicati/0865_2007_12_29_libia_meno_sbarchi.html_8783098.html (accessed 4 November 2009). Ministry of Interior, Press Release of 29 December 2007. Further to the JHA meeting of September 2007, the press has reported that the European Union would start negotiations with Libya for cooperation in control of Southern border. The Italian Prime Minister seems to have played an essential role for the adoption of the mandate: Adnkronos/Aki 18 September 2007. More recently, Minister of Foreign Affairs (and former JHA Commissioner) Franco Frattini declared that Italy will provide support to Libya in order to implement a satellite control system at southern border: “We must get the green light from Libya to joint patrols at the Mediterranean border with Libyan staff on board on Italian ships. Thanks to this we will help the management of migratory flows that arrive mainly from Libyan ports”: Adnkronos 1 July 2008. The Treaty on Friendship, Partnership and Cooperation between Italy and Libya was signed in Tripoli on 30 August, 2008. The Treaty has been ratified by Italy (February 2009) and Libya (March 2009). See Natalino Ronzitti, The Treaty on Friendship, Partnership and Cooperation between Italy and Libya: New prospects for cooperation in the Mediterranean? (Rome: Istituto Affari Internazionali, 2009), available at http: //www.iai.it/pdf/DocIAI/IAI0909.pdf (accessed 4 November 2009).


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parties have agreed to set up a border control system for Libyan land borders, for which Italian companies with the necessary technological know-how will be responsible (50% funded by Italy and 50% of the funding sought from the EU on the basis of unspecified understandings reached between Libya and the European Commission in the past). Italy and Libya will formulate initiatives to combat illegal immigration in countries of origin of migratory flows. The agreement also provides that the parties will promote co-operation in the defence field between their respective armed forces, which may include exchanges of missions of experts, instructors and technical experts, as well as military information, and the carrying out of joint manoeuvres. The sharp rise in arrivals by sea in the first months of 2009 has reinforced the conviction that Libya’s collaboration in preventing departures of irregular immigrants was absolutely necessary.55 Based upon the recently signed agreements, cooperation should actually be reinforced, including in relation to armed forces that could be involved in joint military exercises and patrolling. The modalities of conclusion of these agreements with third countries raise some concerns in relation to national law, however. In most cases, they were adopted by a simplified procedure which did not involve Parliament’s ratification and control. A problem of legitimacy arises since, pursuant to Article 80 of the Italian Constitution, agreements of a political nature require the Parliament’s authorisation.56 Although this category of agreements cannot be strictly defined, it cannot be disregarded that Italy is increasingly integrating migration issues into its relations with third countries and that these agreements play a significant role in its foreign policy. It would therefore be desirable that the content of the concerned agreements could be assessed on a case by case basis in order to evaluate the need for ratification. This would be appropriate in particular since Article 10, para. 2 of the Constitution states that “The legal status of foreigners is regulated by law in conformity with international rules and treaties.” This reservation of law-making power was intended to avoid Government discretion in regulating the status of foreigners by ensuring prior control by Parliament. 55

56

Ulteriori iniziative del Governo in materia di contrasto all’immigrazione clandestina – 3 – 00540. Hearing of the Ministry of the Interior before the Camera dei Deputati, 27 May 2009. Pursuant to Article 80 of the Constitution, the Chambers authorize by law the ratification of international agreements that are of political nature, or foresee arbitration or judicial rules, or import variations of the territory or burdens to the finances or modifications of laws. It must be pointed out the conclusion of international agreements in a simplified manner, by merely putting the signature and without ratification, is a widely diffused practice in Italy. Italian authors consider that this practice is lawful provided that it does not apply to the above categories of agreements. See Tullio Treves and Marco Frigessi di Rattalma, “Italie,” in L’Intégration du Droit International et Communautaire dans l’Ordre Juridique National, ed. Pierre-Michel Eisemann (Leiden: Martinus Nijhoff Publishers, 1996).

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The degree of publicity given to these agreements is another issue of particular significance. The relationship with Libya is emblematic in this respect: the technical arrangement of 2003 was signed by an high-level official within the Ministry of Interior and has not so far been published; the existence of the presumed agreement of 2004 has never been disclosed; and, the main terms of the agreement of December 2007 were made public only through a press release issued by the Ministry of the Interior.57 It has to be noted that, as a general matter, under Italian law any international agreement, including those concluded by a simplified procedure, must be published in the Official Journal (Gazzetta Ufficiale). The legitimacy of a secret agreement in one of the matters listed under Article 80 of the Constitution remains doubtful and could hardly be justified under the privilege for State secrets, which would require that such agreements affected the integrity of the State, its institutional activity, its independence vis-à-vis other States or military defence.58 Recent analysis has highlighted a growing tendency towards informal patterns of bilateral cooperation in many countries. The parties concerned may opt for cooperation on readmission issues without necessarily formalising their cooperation, thus having recourse to “other types of deals, including exchanges of letters and memoranda of understanding or by couching it in a broader framework of cooperation including additional forms of mutual assistance (e.g. police cooperation agreements, arrangements)”.59 The reasons for this choice may be diverse and grounded in lower visibility, better adaptability to changing circumstances, limited cost of defection, and domestic and regional security concerns.60 These practical advantages and their wide diffusion do not, however, solve the issue of legitimacy and compatibility in relation to Constitutional safeguards.

5. The balance between human rights protection and control of irregular migratory flows The fight against illegal immigration has to strike a balance between the decision whether or not to allow third-country nationals into the national territory and 57

58 59

60

Maura Marchegiani, “L’accordo di riammissione quale strumento integrato di cooperazione fra Stati per il contrasto all’immigrazione irregolare”, in Il Contrasto al Traffico di Migranti nel Diritto Internazionale, Comunitario e Interno, ed Giuseppe Palmisano (Milano: Giuffré, 2008). For a detailed analysis, see Favilli, above. Jean-Pierre Cassarino, “Informalising Readmission Agreements in the EU Neighbourhood,” The International Spectator (2007) 42: 179–196. Ibid.


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the obligation to protect those genuinely in need of international protection (arising from the European Convention on Human Rights and the Geneva Convention on Refugees) and more generally the obligation to respect fundamental rights and the primacy of the right to life. In this respect, the legislation in the matter of immigration contains specific safeguard provisions aimed at protecting fundamental rights.61 Two issues deserve special attention in relation to Italian law and practice, however: on the one hand, the distinction between rescue at sea and abetting illegal immigration, on the other hand, the need to ensure proper protection for genuine asylum seekers in the increasingly common cases of collective expulsion or pushbacks. Rescue of migrants at sea or facilitating irregular migration? In order to establish a sufficiently effective deterrent against abetting irregular migration, in 2002 the relevant penalties for this offence were made more severe. Unless the facts constitute a more serious offence, any party who, in breach of immigration laws and regulations, performs acts designed to procure the entry of a foreigner into Italy, or acts designed to procure illegal entry into another country of which the person is not a national and in which he or she has not the right to permanent residence, is subject to a penalty. Smugglers are subject to detention for up to three years, or up to fifteen years in the event the object of the entry was the exploitation of minors or prostitution.62 Nevertheless, a specific exemption from criminal liability is granted in the event that assistance is given to foreigners in need: humanitarian aid and assistance provided to these people, who are present in Italy for any reason, does not constitute a criminal offence.63 The political basis for this provision is the greater importance of saving life and of providing appropriate humanitarian assistance, relative to public order protection needs.64 Such exemption seems, however, to be applied in a restrictive manner by the courts65 and it is not clear whether it is also valid in the ‘contiguous zone’. The Decree of 2003 stressed humanitarian reasons even more and it specifies that, while carrying out the assigned tasks, operations must always preserve 61

62 63 64

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Bruno Nascimbene, “Flussi Migratori tra Sovranità Statale e Cooperazione Internazionale,” in Le Migrazioni: Una Sfida per il diritto internazionale, comunitario e interno, ed Umberto Leanza (Naples: Editoriale Scientifica, 2005). Art. 12, para. 1, Legislative Decree 286/1998. Art. 12, para. 2, Legislative Decree 286/1998. Mauro Ronco and Salvatire Ardizzone, eds., Codice penale ipertestuale: Leggi complementari. Commentario con banca dati di giurisprudenza e legislazione (Rome: Utet, 2007). Fulvio Vassallo Paleologo, “Obblighi di Protezione e Controlli delle Frontiere Marittime,” Diritto, Immigrazione e Cittadinanza, (2007): 13–33.

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human life and respect the dignity of the person.66 Moreover, a visit on board of merchant ships suspected of being involved in smuggling of migrants must always be effected in a security framework, in order to ensure the safety both of the inspection team and of the migrants. Should the use of force be necessary, its intensity and duration shall be proportionate to the intensity of the offence and the threat actually faced. Obligations to provide assistance to persons in need at sea are also established under international law. In particular, pursuant to Art. 98, para. 1, of UNCLOS, every State shall require the master of a ship flying its flag to render assistance to any person found at sea in danger of being lost and to rescue persons in distress, if informed of their need of assistance, in so far as such action may reasonable be expected of her. The position of those who rescue “boat-people” in need should, then, be clarified in order to avoid that fishing boats and mercantile ships are dissuaded from providing assistance to migrants at sea, since they fear that they could be charged with facilitating illegal immigration.67 Without examining the matter in detail, which would require an in-depth legal analysis, it is worth mentioning two cases that have caused a tremendous outcry in Italy and abroad, and which are paradigmatic of the conflict between the need to effectively fight against irregular migration and the primary obligation to rescue people in need. The first is the Cap Anamur case, for which there are still criminal proceedings pending before the Agrigento Court at the time of writing.68 The Cap Anamur, flying a German flag and belonging to a humanitarian organization, had rescued 37 shipwrecked irregular immigrants in the Sicily channel, who declared themselves to have escaped from Sudan because of the civil war there. After taking on board the migrants in international waters, the Cap Anamur was deemed to have passed in Maltese territorial waters, without disembarking them there. The boat set sail for Sicily, but at 17 miles from Porto Empedocle, Italian authorities refused the ship entry to the territorial waters. A dispute therefore arose as to the competences and responsibilities of the Maltese, Italian and German States. Finally, three weeks later Italy granted the permit of entry in Porto Empedocle and the

66 67

68

Art. 7. Fulvio Vassallo Paleologo, Southern Maritime Borders and Irregular Migration (July 2007), available at: http://www.europarl.europa.eu/meetdocs/2004_2009/documents/dv/libe_intervention_ prof_vassallo_/libe_intervention_prof_vassallo_en.pdf (accessed 4 November 2009). The trial of Elias Bierdel, Vladimir Dachkevitce and Stefan Schmidt, respectively president of the German NGO Cap Anamur and captain and first officer of the ship, began on 27 November 2006 in Agrigento (Sicily), in whose province the ship docked on 12 July 2004: “Criminalising Solidarity – Cap Anamur Trial Underway” Statewatch, 2007, available at http://www.statewatch .org/news/2007/apr/03italy-cape-anamur.htm (accessed 4 November 2009).


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following day disembarkation was authorised. The captain and the crew were accused of abetting irregular migration and were arrested, while the shipwrecked people were sent to a reception centre. The following day the captain and the crew were released, as the competent court did not confirm the restrictive measures against them.69 The second case involved seven Tunisian fishermen who were arrested at Lampedusa and had their boats seized in August 2007. They claimed to have saved the lives of 44 migrants (including 11 women and two children) from rough seas 30 miles south of Lampedusa, but the captains of two fishing boats and their five crew were charged with abetting illegal immigration. The captains of the two Tunisian fishing boat informed the ‘Maritime rescue coordination centre’ asking for medical assistance for one of the two children aboard. A medical visit was carried out on board and it assessed that the health condition of the migrants was not critical and that therefore the humanitarian reasons at the basis of the exemption from liability did not apply. The Court of Agrigento thus validated the provisional arrest of the captain and crew, finding that there was serious evidence of guilt in their conduct, in relation to the crime of abetting illegal immigration. The two cases are particularly interesting since they raise both the issue of the scope of the criminal offence of facilitating irregular migration, and that of the extent of the exemption from criminal liability for humanitarian reasons. Were they actually mere operations of rescue at sea, to be carried out pursuant to international and national law until people were in a safe place, or were the constitutive elements of a crime present? Did the rescuers merely intend to provide assistance or were they determined to take the shipwrecked migrants on board for other reasons? The reasoning of the decision which validated the initial arrest of the captain and officials of the Cap Anamur (without however ordering provisional detention) contains a reference to the notion of profit: although they were certainly not passeurs, and were therefore not motivated by economic interests, the constitutive element of the crime of smuggling subsisted, since according to the Court they actually wanted to get the greatest media coverage and publicity in favour of the organization.70 As to the extent of the exemption for humanitarian reasons, the decision issued in relation to the provisional arrest agreed with the Public Prosecutor’s position: the captain and officials of the Cap Anamur on the one hand willingly and unlawfully introduced the 37 migrants into Italian territorial waters, in breach of Italian law on migration. On the other, the persons 69

70

Under Italian law, an arrest must be validated by a Court within 48 hours, after assessing that the measure was applied in compliance with legal requirements. When validating the arrest, the Court may issue a decision of provisional detention or release the concerned person. Decision of the Court of Agrigento, 16 July 2004.

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involved were not real asylum seekers, nor they were in a critical status needing prompt assistance. As a consequence, they were not entitled to claim exemption from liability. The Cap Anamur case also raised the issue of the existence of the contiguous zone. Pursuant to the abovementioned provisions contained in the 2003 Decree, it could be affirmed that the ship was actually in the contiguous zone, but in the absence of an express delimitation, the legitimacy of the action carried out by Italian authorities remains questionable under international law. The judgment rendered by the Court of Palermo in the case of the Tunisian fishermen took a more “open” approach.71 It ruled against the decision issued by the Tribunal of Agrigento which validated the provisional arrest of the rescuers. According to the Court of Palermo, the circumstances grounding that order in relation to the conduct of the fishermen were not sufficient to establish that they had acted for the purpose of facilitating illegal immigration. In particular the fact the neither net nor fish were found on the boat by Italian authorities was not considered appropriate evidence (as had been affirmed by the Court of Agrigento). Similarly, in relation to the exemption from criminal liability, the fact that the doctors who visited the shipwrecked migrants on board did not judge that their life was in danger was not sufficient to exclude that the fishermen acted in good faith. It has been pointed out that State obligations to cooperate in rescue operations at sea require appropriate behaviour irrespective of their power to pursue people facilitating irregular migration or to adopt the measures set by the law against irregular migrants.72 The scope of the exemption given by the Single Text in relation to facilitating irregular migration is wider than the general exemption contained in the criminal code for a state of necessity. The relevant judgments on both matters are expected with great interest.73 Hopefully the final decisions that will be issued after an in-depth analysis of the merits of the Cap Anamur and Tunisian fishermen cases, will provide additional elements to assess the scope of the crime and of the relevant exemption from liability. This appears as much important as new restrictive rules have been adopted against irregular migration, which have made more punitive the penalties against facilitating irregular migration.74

71

72

73

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The decision was issued on 25 September 2007 by the Court of Review, which is an appellate body against provisional arrest measures and precautionary sequestration. Guido Camarda, Il Soccorso in Mare: Profili contrattuali ed extracontrattuali (Milan: Giuffré, 2006). After this chapter was written, the decision in the Cap Anamur case was issued by the Agrigento Court, and all the persons involved were acquitted. However, the reasoning has not yet been published. The proceedings of first instance on the merits of the Tunisian fishermen case are still pending before the Agrigento Court at the time of writing. After this chapter was written, more restrictive rules (the so-called “security law”) were adopted by the Parliament, which aimed at more effective prevention of irregular migration, and for this purpose made the relevant penalties more severe.


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Collective drive backs / expulsions and the right of asylum The 2006 Commission Communication Reinforcing the management of the European Union’s Southern Maritime Borders pointed out that the strategy developed at the EU level and by southern border member States requires the analysis of sensitive issues that are likely to raise concern in relation to human rights’ protection.75 It stressed the need to further elaborate and clarify the most appropriate port for disembarkation following rescue at sea and interception. Similarly, the Communication encouraged further evaluation of the extent of States’ protection obligations flowing from respect for the principle of non-refoulement in the many different situations where State vessels implement interception or search and rescue measures. As a general principle under Italian law, foreigners who arrive at border posts without meeting the requirements laid down by the applicable laws are to be refused entry by the border police.76 Legislative Decree 286/1998 expressly states, however, that these provisions concerning refusal of entry do not affect the cases specified by the legislation in force concerning the granting of asylum, the recognition of refugee status or the adoption of temporary protection measures based on humanitarian grounds.77 Moreover, refusal of entry and expulsion to a country where a foreigner may be persecuted on the ground of his/her race, language, nationality, religion, political opinions, personal or social situation, or is at risk of being sent to another country where he/she would not be protected from persecution, is not permitted in any circumstance.78 Specific categories of foreigners, such as minors or pregnant women, cannot be expelled, unless the measure is grounded in reasons of public order or State security.79 Despite these safeguard provisions, Italy has been accused of having carried out several collective expulsions since 2004 from Lampedusa towards countries with which readmission agreements are in force, notably Libya. In many cases, such collective expulsions would have included potential refugees who were thus prevented from applying for asylum, without taking into due account their personal situation and the possible risks they could have incurred. Many of these questions were addressed by the European Parliament in a resolution of 14 April 2005, when it expressed its “concern … at the collective expulsions of migrants from the island of Lampedusa in Italy to Libya carried out by the

75

76 77 78 79

Communication from the Commission to the Council “Reinforcing the management of the European Union’s Southern Maritime Borders”, 30 November 2006, COM(2006) 733 final. Art. 10, para. 1, Legislative Decree 286/1998. Art. 10, para. 4, Legislative Decree 286/1998. Art. 19, para. 1, Legislative Decree 286/1998. Art. 19, para. 2, Legislative Decree 286/1998.

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Italian authorities between October 2004 and March 2005.”80 This resolution followed UNHCR concerns that Italy had not taken the necessary precautions to ensure that it did not send genuine refugees back to Libya, which would not be considered as a safe country for asylum. In the resolution, the Parliament urged the Italian authorities to “refrain from collective expulsions of asylum seekers and ‘irregular migrants’ to Libya as well as to other countries and to guarantee that requests for asylum are examined individually and the principle of non-refoulement adhered to,” and condemned the practice, considering that collective expulsions of migrants are in breach of the non-refoulement principle and that Italy had failed to comply with its international obligations. The Ministry of the Interior, however, defended the Italian Government against the accusation of carrying out collective expulsions without allowing potential refugees to apply for asylum, stating that each individual was given the opportunity to explain his/her personal situation, which was then examined, before a decision was issued.81 It is worth mentioning that in 2005 the Corte di Cassazione gave advice on the scope and legitimacy of “collective expulsions”.82 The Court issued a decision in relation to a judgment of the Milan Court which had annulled expulsion decrees adopted against several Romanian citizens of Roma origin. According to the Corte di Cassazione, the term ‘collective expulsion’, set out in Article 4, Protocol 4 of the ECHR, refers to a measure which is applied to a group of foreigners, without carrying out a reasonable and objective analysis of every individual’s defence. It would therefore be possible to expel several people identified during the same operation, provided that the expulsion measure was adopted further to an effective examination of the individual position, including in the light of the above mentioned safeguard provisions which prohibit expulsion under specified circumstances. The need to ensure an appropriate evaluation of the individuals’ position is of particular concern with regard to people intercepted at sea. According to UNHCR estimates, in 2008 about 75% of those who arrived in Italy by sea applied for 80 81

82

European Parliament Resolution on Lampedusa, 14 April 2005, P6_TA (2005)0138. ‘Immigrazione: prorogato lo stato di emergenza a Lampedusa e proposta la nomina di un Commissario ad hoc’, Interior ministry press release, 11 November 2005, available at www .interno.it. According to the Ministry of the Interior, thanks to the experience obtained in the application of previous bilateral agreements, it was possible to assess the migrants’ nationality in a few hours: “Sbarchi, l’Onu contro il governo ‘Rimpatri senza garanzie’ ”, Repubblica, 5 October 2004. Judgment no. 16571/05 of 19 May 2005. The Court of Milan annulled the expulsions, pursuant to art. 4 para. 4 do of the Protocol to the European Convention on Human Rights, stating that expulsions carried out against several persons and grounded on the same reasons and the same wording were prohibited under to that provision.


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asylum, and around 50% of those who applied were granted refugee status or protection on other humanitarian grounds.83 Based upon these figures, restriction of the right to apply for asylum, in the event that ships are intercepted during joint patrol operations along Italian coasts and driven back towards the countries of origin, does not appear a theoretical scenario, taking into consideration that people are often sent towards countries that have not set up appropriate procedures and that may not even be signatories of the Geneva Convention of 1951. This issue received great attention in summer 2009, after the entry into force of the abovementioned partnership agreement between Italy and Libya, which led to an intensification of maritime patrols aimed at preventing irregular migration flows by sea. Strong reactions came not only from NGOs, with both the UNHCR and the European Commission addressing letters to the Italian Government in relation to the operations carried out by Italian naval units which intercepted boats carrying migrants and sent them back to their ports of departure, mainly in Libya. Such interventions have raised concerns over the fate of the persons involved, especially as regards the protection of their fundamental human rights, and in relation to the assessment of these migrants’ possible asylum-seeker status.84 From a legal perspective, it is under dispute whether States’ obligations towards refugees are fully engaged as long as refugees have not managed to enter their territory. According to some authors, States are not obliged to process asylum applications or to grant asylum, as no such obligation appears in the Refugee Convention, and “therefore they may choose to remove individuals to third countries without considering their protection claims, provided that the principle of non-refoulement be respected.”85 Other authors consider that any conduct having the effect of placing the person concerned at risk of persecution would be prohibited: a conduct “amounting to rejection at the frontier – also in transit zone or on the high sea – will in all likelihood come within the jurisdiction of the State and would engage its responsibility.”86 83 84

85

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UNHCR, ‘Garantire accesso alla protezione a chi arriva via mare’, Press release, 9 January 2009. UNHCR Rome sent a letter to the Italian Government on 12 May 2009, asking for the readmisison of those persons who were sent back by Italy and who were identified by UNHCR as seeking international protection. In a letter dated 15 July 2009 the Deputy President of the Commission, Jacques Barrot, who was responsible for Justice, Freedom and Security issues, asked what steps had been taken to ensure that returned foreign nationals received adequate protection. María-Teresa Gil-Bazo, “The Practice of Mediterranean States in the context of the European Union’s Justice and Home Affairs External Dimension. The Safe Third Country Concept Revisited,” International Journal of Refugee Law (2006): 571–600. Elihu Lauterpacht and Daniel Bethlehem, “The Scope and Content of the Principle of Nonrefoulement: Opinion” in Refugee Protection in International Law, ed. Erika Feller, Volker Türk and Frances Nicholson, (Cambridge: Cambridge University Press, 2003).

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In this respect, the 2003 Ministerial Decree, which as mentioned above detailed the exercise of the powers to be carried out in order to control and prevent irregular migration by sea, requires that naval units, if adequate safety conditions permit, stop the ships suspected of being used for smuggling of migrants, also for the purpose of sending them back to the ports from where they came.87 This provision appears rather problematic, however, since it would authorise driving people back collectively, in so far as it would allow a vessel to be turned back without proceeding to identify the migrants and assessing, even summarily, the situation and the motivations of the individuals on board.88 It is not specified whether this power would be allowed only in national waters, in the contiguous zone or on the high sea. Coinciding with the above-mentioned sharp rise in the fight against illegal migration by sea, the provisions set out in the 2003 Ministerial Decree seems to have been more often applied after 2007, when various boats intercepted on the high seas have been pushed back to the ports of origin by Italian naval units.89 The possibility to establish adequate mechanisms to ensure even a brief analysis of the personal situation – also in view of the ad hoc provisions contained in the Single Text which prohibit refusal of entry at borders and expulsions in specified humanitarian circumstances – in order to avoid that genuine asylum seekers are deprived of the possibility to apply for asylum, should be carefully assessed.

6. Concluding remarks Migration at sea will continue to be a relevant concern over the next years, and at both the European and national level, much effort will be devoted to the fight against it. The Mediterranean sea remains an area of great interest for this phenomenon, since in the last decade arrivals from extra-Mediterranean seas have been considerably reduced.90 It seems that the flows in this region have actually decreased when transit countries have collaborated and prevented the ships from departing.91 However, pressure exercised by European countries (individually or at the European level) on North African countries for the control of irregular movements has contributed to concentrate departures in Libya, thus making the relationship with this country a crucial issue for the management of sea migration flows. 87 88

89 90

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Art. 7, para. 2, Ministerial Decree 14 July 2003. Paolo Bonetti and Annamaria Casadonte, “Ingresso, Soggiorno e Allontanamento” in Diritto degli Stranieri, ed Bruno Nascimbene (Padova: Cedam, 2004). Vassallo Paleologo, note 65, above. It is today almost impossible to pass through the Suez Channel and the Dardanelles Straits to get into the Mediterranean to disembark in Sicily: see Monzini, n. 6 above. Coslovi above.


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It must nevertheless be pointed out that, speaking in Brussels about the immigration situation in the Mediterranean which he described as “increasingly alarming”, the executive director of the EU’s Border Control Agency, admitted in September 2008 that the anti-immigration patrols carried out in the centre of the Mediterranean have not achieved the desired results. Increased EU patrols in the Mediterranean are failing to prevent an increase in clandestine migrants reaching Italy, Malta and Greece by sea: arrivals on the Italian island of Lampedusa increased by 190% in the first six months of 2008, compared with the same period in 2007.92 The analysis carried out above in relation to the Italian case shows how complex and multi-faceted the phenomenon of migration by sea is and explains the difficulty in adopting an effective strategy. If a lesson can be drawn from the Albanian success story it is that the drastic reduction of the Adriatic route is not the result merely of a restrictive practice based upon intensification of controls at sea. In that case, the Italian Government engaged in a continuous and comprehensive form of bilateral collaboration, which along with agreements on irregular migration, also implied increased development aid, reinforcement of institutional capacity and close police and judicial cooperation.93 In addition, a more careful rethinking of existing rules on control of immigration at sea would also be appropriate, since the issues relating to human rights protection require to be taken into consideration. Such attentive consideration appears appropriate as the Italian strategy – which this country is also promoting at the EU level – is intended to reinforce the involvement of countries that are accused of not properly apply the main human rights instruments, or are not even signatories of them.

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‘Frontex Chief Admits Failure’, Times of Malta, 21 September 2008. According to figures provided by the UNHCR, arrivals by sea increased from 49,158 in 2007 to 68,613 in 2008. Arrivals have increased as follows: Italy from 19,890 to 36,077, Greece from 9,420 to 15,314, Cyprus from 265 to 1,094, Malta from 1,706 to 2,704. The only country showing a decrease in the number of arrivals is Spain, from 18,057 to 13,424: “Immigrazione, chiede asilo il 75% di chi arriva per mare”, Corriere della Sera, 31 January 2009. In 1998, 28,458 irregular migrants were intercepted on the Apulian coasts, in 1999 they were 46,481. This number has dropped drastically over the years and amounted to 61 people in 2007. See Coslovi, above.

Extraterritorial Strategies to Tackle Irregular Immigration by Sea: A Spanish Perspective Paula García Andrade1 1. Introduction The pressure exerted on the European Union (EU) Member States by irregular immigration by sea has increased considerably in recent years. This migration constitutes, however, 31% of the total of irregular immigrants arriving in the EU, as compared to 50% of migration by land.2 Still, the belief that there is an avalanche of immigrants, together with a sense of threat to the Union’s security, seem to have infused the European perception. Nonetheless, the especially sensitive and vulnerable situation in which the immigrants find themselves when they undertake these journeys, and the humanitarian significance of a phenomenon involving the deaths of thousands of people, require urgent and effective solutions. As regards the main migration routes identified in the Mediterranean and Atlantic regions,3 the Southern Member States of the EU are clearly the most affected by the increasing migration flows coming from the African continent by sea. Due to its vast maritime border and its geographical proximity to Africa, Spain is undoubtedly one of the main destinations for immigration by sea. This situation has led Spain to adopt new political strategies which go beyond traditional border controls. One of the most controversial consists of the implementation of joint sea patrols operations within the territorial waters of third

1

2

3

The author would like to express her gratitude to Emiliano García, Cristina Gortázar, Antonio Obregón and Irene Claro for all their valuable comments. This chapter was completed in June 2009. “Frontex afirma que llegan menos pateras a Canarias por un “efecto desplazamiento” a Italia,” Europa Press, 30 July 2008, http://www.europapress.es. The western irregular migration routes comprise the West Africa route, starting in the West African countries and ending in the Canary Islands; the West Mediterranean route, beginning also in West Africa, through Morocco or Algeria and ending in mainland Spain; and the Central Mediterranean route, starting in West Africa, through Algeria, Libya and Tunisia to end in Italy or Malta. Source: ICMPD, EUROPOL, FRONTEX, Arab and European Partner States Working Document on the Joint Management of Mixed Migration Flows, Office for Official Publications of the European Communities, Luxembourg, 2008, 19–21.


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countries of departure of migration flows. Through these operations, based on bilateral agreements between Spain and a number of African countries, the interception powers of Spain extend to maritime zones under the sovereignty of other States, so as to prevent would-be immigrants from starting their journeys towards the Spanish coasts. In addition, within the framework of the “fight” against clandestine immigration, Spanish legislation has recently been amended in order to extend the criminal jurisdiction of the Spanish courts, so that they are competent to try the skippers of vessels intercepted on the high seas for the crime of smuggling of immigrants, even if committed before they step onto Spanish soil. The common denominator which justifies the analysis of these practices together here is that they are carried out or take effect outside Spanish territory. Therefore, they may be considered to be examples of the extra-territorialisation4 of the enforcement and prescriptive jurisdiction of the State,5 something which has become more and more usual among countries of destination of immigration by sea. These developments deserve our attention mainly for two reasons. Firstly, since the territoriality principle is at the heart of State sovereignty, extraterritorial strategies raise significant legal questions with regard to their conformity with international law and, more specifically, with the law of the sea and obligations of international protection. For this reason, it is essential to determine Spain’s powers to operate in foreign territorial waters, or to extend its criminal jurisdiction outside its own territory, and also the limits to those powers. Secondly, the existence of an area with no internal borders between Schengen States means that clandestine migration by sea bound for certain southern Member States is an issue of common concern for all the EU.6 The establishment of a Community policy on external border controls, and the tasks which have been conferred on the European Agency FRONTEX in this field, oblige us to connect Spanish policy to European developments. 4

5

6

For the application of the term “extra-territorialisation” to migration controls, see Jorrit Rijpma and Marise Cremona, The Extra-territorialisation of EU Migration Policies and the Rule of Law, (Florence: EUI working paper LAW no. 1, February 2007), 11 et seq., http://ssrn.com/ abstract=964190 and Thomas Gammeltoft-Hansen, The Refugee, The Sovereign and the Sea: EU Interdiction Policies in the Mediterranean (DIIS Working Paper no. 6, March 2008), 12 et seq., http://www.diis.dk/sw52742.asp (accessed 30 June 2009). ‘Prescriptive jurisdiction’ is used to refer to the power of a State to prescribe rules, while ‘enforcement jurisdiction’ refers to the power to enforce those rules. The right of courts to try cases, which could be referred to as “curial jurisdiction” is understood to be included in the previous categories. See Vaughan Lowe, “Jurisdiction”, in International Law, ed. Malcom D. Evans (Oxford: Oxford University Press, 2006), 338–339. See, among others, Justice and Home Affairs (JHA) Council meeting of 13 June 2002, Conclusions on “Illegal immigration and external borders”, doc. 9620/02, 9–12; Programme

Spanish Perspective on Irregular Immigration by Sea

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Consequently, section 1 of this chapter will explore the interception operations carried out by Spain in order to prevent irregular immigration by sea towards its coasts. Reference will be made to the interdiction powers at the disposal of a State according to the law of the sea7, to the Spanish authorities competent to exercise those powers, and to the modern technical resources which they make use of to detect and intercept immigrants at sea. We will then address the specific interception operations led by Spain in the sovereign waters of third countries, and their connection with operations coordinated by the FRONTEX Agency. In the second section, we will analyse the reform of the Spanish criminal jurisdiction law undertaken in order to allow for the extraterritorial pursuit of the smuggling of irregular migrants, as well as the Spanish case law on this issue. The section will end with a brief discussion of the criminal sanctioning of smuggling within the Spanish legal order, and of the repatriation process to which intercepted immigrants are subject.

2. Spain and the extraterritorial interception of migrants at sea General remarks: interception powers and competent authorities The interdiction powers of a State with regard to vessels suspected of transporting irregular immigrants depend on the legal nature of the maritime waters where the vessel is situated, according to the United Nations Convention on the Law of

7

of measures to combat illegal immigration across the maritime borders of the Member States of the European Union, 28 November 2003, Council doc. 15445/03; JHA Council meeting of 5–6 October 2006, Conclusions on “Reinforcing the southern external maritime borders”, doc. 13068/06, 15–18; European Commission, Communication on “Reinforcing the management of the European Union’s Southern Maritime Borders”, COM(2006) 733, 30 November 2006; JHA Council meeting of 18 September 2007, Conclusions on “Southern Maritime Borders”, doc. 12604/07, 8–12 or European Council of 18–19 June 2009, Presidency Conclusions, doc. 11225/09, 14. This chapter will not tackle the issue of the search and rescue of people in distress at sea. Although Spain – and more specifically fishing boats under the Spanish flag - are frequently involved in rescue operations and that interception and rescue are often difficult to differentiate in practice, we will concentrate on the study of interception powers, considering the distinction between the two types of operation with regard to the applicable international law. Regarding search and rescue at sea, see Richard Barnes, “Refugee Law at Sea,” International and Comparative Law Quarterly 53 (2004): 47–77 and Michael Pugh, “Drowning not Waving: Boat People and Humanitarianism at Sea,” Journal of Refugee Studies 17 (1) (2004): 50–69.

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the Sea (hereinafter “UNCLOS”).8 Without going into this matter in depth,9 Spain’s competence to patrol the waters included in its territorial sea, extending up to no more than 12 nautical miles from its baseline,10 does not raise legal problems, since this zone falls under its sovereignty.11 The same can be said about the contiguous zone, extending up to no more than 24 nautical miles from the same baseline,12 in which Spanish authorities are entitled to adopt the necessary measures to prevent infringements of Spain’s immigration laws and regulations committed within its territory or territorial sea, as well as to punish those infringements.13 As far as international waters are concerned, every ship enjoys freedom of navigation on the high seas, and is subject to the exclusive jurisdiction of the flag State.14 According to UNCLOS, this exclusive jurisdiction can only be excluded when the ship is engaged in piracy, the slave trade or unauthorized broadcasting.15 However, an intervention on the high seas against a vessel suspected of carrying irregular migrants seems to be implicitly allowed by the Convention when it refers to other “acts of interference derive(d) from powers conferred by treaty”.16 In our opinion, these powers have been conferred by the 2000 Palermo Protocol Against the Smuggling of Migrants by Land, Sea and Air (hereinafter “the Smuggling Protocol”).17 This Protocol permits the interception of vessels on the high seas suspected of transporting would-be irregular migrants under

8

9

10 11

12 13 14 15 16 17

United Nations Convention on the Law of the Sea of 10 December 1982, adopted in Montego Bay, Jamaica; entered into force on 16 November 1994 and for Spain on 14 February 1997; BOE (Boletín Oficial del Estado, Spanish Official Bulletin) of 14 February 1997, no. 39. See Ruth Weinzierl and Urszula Lisson, Border Management and Human Rights. A study of EU Law and the Law of the Sea, (German Institute for Human Rights, December 2007), 32–35, http://www.institut-fuer-menschenrechte.de/webcom/show_shop.php/_c-488/_nr-75/i .html (accessed 30 June 2009); J. Daniel Oliva Martínez, Derecho del Mar e inmigración irregular (2008), http://www.intermigra.info/intermigra/archivos/documentacion/SAREDMII.pdf (accessed 30 June 2009). Art. 3 of UNCLOS. Although this sovereignty is limited by the right of innocent passage through the territorial sea, the passage of a vessel transporting irregular migrants is considered prejudicial to the peace, good order and the security of Spain, thus making the passage “non-innocent” and allowing the Spanish authorities to exercise coercive measures against it: Art. 19.1 and 19.2 (g) of UNCLOS. Art. 33.2 of UNCLOS. Art. 33.1 of UNCLOS. Art. 87.1(a) and 92.1 of UNCLOS. Art. 110 of UNCLOS. Art. 110.1 of UNCLOS. Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime, adopted in New York on


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certain conditions dependent on the flag State of the ship in question,18 unless the vessel has no nationality, in which case it will not benefit from the freedom of navigation, giving the State a right of unilateral intervention.19 The patera and cayuco20 kinds of vessels, used by African migrants to reach Spanish coasts, are likely to be included within the category of vessels with no nationality, therefore the power of the State to intercept these do not raise any doubts under the Smuggling Protocol and the UNCLOS. It may even be that, given their size and state, these boats do not enjoy the status of ‘ship’, because of their unseaworthiness on the high seas. Therefore, their mere existence would generate a rescue obligation, which must be fulfilled irrespective of the legal nature of the waters where the boat is located. Under Spanish legislation, control of entry to and exit from the national territory, and the enforcement of the Law on Aliens concern the National Police Corps, whereas it is the Guardia Civil which is competent for the custody of ports, coasts and borders.21 Consequently, interdiction functions at sea against vessels suspected of transporting irregular migrants are carried out by the Guardia Civil, an armed institution of a military nature22 as opposed to the civil nature of the National Police.23 More specifically, these tasks are assumed by the Maritime Service of the Guardia Civil. Royal Decree No. 246/1991, regulating it, echoes the interception powers laid down in international rules, stating that the Maritime

18

19 20

21

22

23

15 November 2000. The first has been ratified by Spain through an Instrument of 21 February 2002, BOE of 10 December 2003, no. 295, and the latter through an Instrument of 21 February 2002, BOE of 29 September 2003, no. 233. In the case of a ship flying the flag of the interdicting State, the latter will enjoy exclusive jurisdiction over it and may request the necessary assistance from other States Parties (Art. 8.1 of the Protocol). If the ship is flying the flag of another State Party, the interdicting State shall request authorisation from the flag State to take appropriate measures with regard to that vessel (Art. 8.2). Art. 8.7 of the Protocol and art. 110.1(d) of UNCLOS. ‘Patera’ is the term used to refer to small wooden boats usually employed by African migrants to make short crossings like the Straits of Gibraltar, while the term ‘cayuco’ refers to a kind of fishing canoe of greater length, typical of countries like Mauritania and Senegal. Cayucos are the vessels which habitually arrive in the Canary Islands. Art. 12. 1. B (d) of the Spanish Organic Law No. 2/86, of 13 March, on the State Security Forces (Ley Orgánica de Fuerzas y Cuerpos de Seguridad), BOE of 14 March 1986, no. 63. Lutterbeck refers to this fact when he considers the use of “semi-military security forces, namely police forces with a military status, to deal with undocumented immigration by sea” as “one aspect of this process of border militarization along the Mediterranean frontiers of both Italy and Spain […]”, in Derek Lutterbeck, “Policing Migration in the Mediterranean,” Mediterranean Politics 11(1) (2006): 64–65. When the Spanish Guardia Civil performs the functions conferred on it by Organic Law 2/86, it acts under the authority of the Interior Ministry, whereas, when it must carry out military

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Service’s functions “shall be exercised in the Spanish maritime waters up to the external limit of the territorial sea and exceptionally, out of the territorial sea, in accordance with the rules contained in International Treaties in force”.24 The same will be provided in the future Maritime Navigation Law, which awaits the approval of the Spanish Parliament at the time of writing.25 In relation to this, we must point out that Guardia Civil “Centres for the maritime surveillance of coasts and borders” were created recently by a Ministerial Order no. 2523/2008, of 4 September 2008.26 Using compliance with EU obligations as justification,27 the aim of the reform is to have an adequate structure to coordinate, advise and manage surveillance operations at sea, and to monitor crisis situations. This Order foresees the establishment of a Coordination Centre in Madrid and the setting up of several Regional Centres of the Guardia Civil charged with maritime surveillance for the Mediterranean (Valencia), the Straits (Algeciras), the Atlantic (Las Palmas) and the Cantabrian Sea (A Coruña). New technologies and interception at sea Reference may also be made to the technical resources used by the Spanish Government to exercise those powers more efficiently. Firstly, in 1999, the Integrated System of External Surveillance was created, known by its Spanish acronym ‘SIVE’. SIVE is an operative system, in the charge of the Guardia Civil, applying new technologies to the surveillance of the Spanish maritime borders in order to combat drug trafficking and irregular immigration heading to Spanish territory. SIVE radars consist of fixed and mobile sensor stations, which enable the long distance detection of vessels suspected of transporting would-be clandestine immigrants, before they enter Spanish territorial waters, so that the Guardia Civil agents may start their interception.28 Therefore, this system exceeds the traditional concept of “border” controls and has been turned into one of the

24 25

26 27

28

missions, it will do so under the authority of the Ministry of Defence (Art. 9 (b) of the Organic Law No. 2/86). BOE of 1 March 1991, no. 52. BOCG (Boletín Oficial de las Cortes Generales, Official Bulletin of the Spanish Parliament), Congreso de los Diputados, Serie A, 19 December 2008, no. 14–1. BOE of 5 September 2008, no. 215. The Order’s Preamble refers to the feasibility study MEDSEA carried out by FRONTEX in which the Agency recommended the creation of national coordination centres with a view to the setting up of the Mediterranean Coastal Patrols Network. See FRONTEX, “MEDSEA feasibility study on a Mediterranean Coastal Patrols Network”, of 14 July 2006, partially declassified in Council of the EU, doc. 12049/06, 20 November 2006. For more detailed information on the technical functioning of SIVE, see the Spanish Guardia Civil website http://www.guardiacivil.org/prensa/actividades/sive03/index.jsp (accessed 30 June 2009).


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first instruments developed by Spain at the service of the extra-territorialisation of migration controls. The law of the sea does not seem to contain, however, any legal objection to the placing of surveillance devices on the coasts, even when those mechanisms allow for the detection of vessels as they depart from the country of origin.29 The introduction of this new operative system, justified at first by the Spanish Government by the need to comply with Community obligations regarding border control, is now also presented as an instrument for humanitarian purposes, since it may detect vessels in distress and help to save human lives.30 This assertion is quite controversial, however, because of the negative consequences the new technologies may have in the displacement of migration routes destined for Spanish territory. Although the main route used by smugglers and would-be irregular immigrants was at first to the Andalusian coast, the deployment of the SIVE in this area, together with Moroccan cooperation on border controls, led to a substantial shift of migration flows towards the Canary Islands, where interdictions increased notably during the first years following the establishment of the SIVE on the Spanish mainland.31 In turn, the intensified surveillance of the Canary Islands coasts seems to have increased the flows towards less common destinations such as the Spanish eastern Mediterranean coast and the Balearic Islands.32 Consequently, the shifting of the routes may not solely provoke a rise in undetected vessels, but may lead the journeys of migrants to become longer and more dangerous, increasing the death toll at sea.33 The Spanish Government plans to further extend the system to new areas.34

29

30 31

32 33

34

Commission Staff Working Document, “Study on the international law instruments in relation to illegal immigration by sea”, SEC (2007) 691, 15 May 2007, 14. See the Guardia Civil website quoted above. Jørgen Carling, “The Merits and Limitations of Spain’s High-Tech Border Control,” Migration Information Source (June 2007), http://www.migrationinformation.org/Feature/display.cfm?id= 605 (accessed 30 June 2009). “La llegada de inmigrantes por el Este crece un 7.000%”, El País, 2 January 2008. Carling observes that because of the strong currents at the shortest route across the Strait, the new routes are not necessarily more dangerous. However, he points out, on the one hand, that new arrival areas are not adequately prepared for the reception of migrants in terms of infrastructure and services, and, on the other, that the higher likelihood of detection leads smugglers to reduce their organisational costs, increasing the risk for migrants’ lives: Carling, supra note 31. To date, SIVE stations have been established in the Campo de Gibraltar and Algeciras (2002), in Málaga (2003), Cádiz and Granada (2004), Almería (2006) and Huelva (2008), at the Andalusian coast; in Ceuta (2005); in Fuerteventura (2003), Lanzarote (2006), Gran Canaria (2007), Tenerife, Hierro and Gomera (2008), in the Canary Islands; in Murcia (2008) on the eastern Mediterranean coast and Ibiza (2008), in the Balearic Islands. The system will extend in 2009 to Alicante and Valencia, on the eastern Mediterranean coast; and to the rest of the Balearic Islands. Moreover, it has been announced that SIVE stations could even be set up in Galicia, in the

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Another new use of technology which we must point to is the utilisation of SPAINSAT, a military satellite, which is the property of the Spanish Ministry of Defence. This has been in orbit since 2006 and has been put into service in the detection of migrants’ vessels from the beginning of 2009.35 The use of this satellite takes place within the SEA HORSE Network, a project led by Spain and financed by EU funds which consists of an intranet of encoded information aimed at assisting in the tracking down of irregular immigrants, involving Portugal, Mauritania, Senegal and Cape Verde and extending soon to Morocco, Gambia and Guinea Bissau.36 These surveillance systems deployed by Spain may be linked to the proposal of the European Commission to create a European Border Surveillance System (EUROSUR), focusing initially on the southern and eastern external borders of the EU. According to its communication of 13 February 2008, the Commission considers that there is a need to upgrade the existing national border surveillance systems and to extend them to other sensitive parts of the external borders which are not yet covered.37 One of the objectives will be that of interlinking national infrastructures in a communication network, which would provide them with full awareness of the situation at their external borders and therefore increase their capability to detect and intercept those attempting to enter the EU illegally.38 In spite of the new proposals, the functioning of the already existing national surveillance systems like SIVE should make Member States and the EU reflect on the effects that these systems have on the diversion of routes, and on the consequences for migrants, before considering new and expensive technical developments. Spanish bilateral arrangements for the establishment of joint sea border patrols Once the interception powers in Spanish jurisdictional waters and the high seas, the competent authorities to perform them, as well as the technical means used

35

36

37

38

north-western Spanish coast: Appearance of the Director General of the Police and Guardia Civil before the Spanish Congress, 22 April 2009, Diario de Sesiones, Comisión de Interior, no. 259. See “Pesca de ‘sin papeles’ vía satélite”, El País, 26 May 2008 and “España se une por satélite con varios países para frenar la inmigración”, Diariodecadiz.es, 7 January 2009, http://www .diariodecadiz.es. Appearance of the Interior Minister before the Spanish Congress on 17 February 2009, Diario de Sesiones, Comisión de Interior, no. 197, p. 7. See European Commission, Communication on “Examining the creation of a European Border Surveillance System (EUROSUR)”, COM (2008) 68, 13 February 2008. For a more in-depth analysis of this proposal, see Julien Jeandesboz, Reinforcing the surveillance of EU borders. The future development of FRONTEX and EUROSUR, (Brussels: CHALLENGE research paper no. 11, August 2008), available from http://www.ceps.eu.


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for these functions have been clarified, the next question to address is the legitimacy of Spain’s carrying out border controls in foreign territorial waters. In recent years, Spain has striven to obtain the operational cooperation of third countries situated on the migratory routes headed to its coasts, with the aim of reducing the growing migration pressure at sea affecting it. The main instrument employed by the Spanish Government for that purpose consists of organising joint sea patrols between the Spanish Guardia Civil and the security forces of African countries. In this area, one of its major partners has been Morocco, a country both of origin and of transit of significant irregular migration flows bound for Spain. In 2003, the press reported the signing of an agreement by the two countries aimed at combating the trafficking and smuggling of human beings.39 Under this agreement, the Spanish Guardia Civil and the Moroccan Gendarmerie Royale put joint sea patrols in place in the area surrounding the Canary Islands and in the Straits of Gibraltar.40 During 2005, these patrols contributed to a 40% decrease in the arrivals of pateras coming from Morocco. However, they also provoked a diversion effect on the routes, so that they started to depart from the more distant shores of Mauritania or Senegal, making the journey much more perilous.41 More recently, as a result of the aforementioned migration route diversification, bilateral arrangements on sea border surveillance have been concluded by Spain with Senegal42 and Mauritania (2006),43 with Cape Verde (2007),44 and with Gambia, Guinea and Guinea Bissau (2008).45 A basic obstacle we are confronted with in analysing these instruments is the lack of publication. Although their confidential character may be justified due to

39

40

41

42

43 44

45

See Jean-Pierre Cassarino, “Migration and border management in the Euro-Mediterranean area: heading towards new forms of interconnectedness,” Med. 2005 Mediterranean Yearbook (2005): 228. Signed on 4 December 2003, Maroc Hebdo International no 584, 12–18 Dec. 2003, 6; “Acebes anuncia que las patrullas conjuntas con Marruecos comenzarán a funcionar en enero”, ELPAÍS. com, 4 December 2003. See Sarah Wolff, “Border management in the Mediterranean: internal, external and ethical challenges,” Cambridge Review of International Affairs 21(2) (2008): 262. Spanish Ministry of Interior, Press Release, 22 August 2006, http://www.mir.es/DGRIS/Notas_ Prensa/Ministerio_Interior/. In May 2008, Spain and Senegal agreed to the extension of this bilateral arrangement for another year: Spanish Ministry of Interior, Press Release, 19 May 2008. Ibid. Memorandum signed with Cape Verde in March 2007 which makes the joint surveillance of maritime areas under Cape Verde sovereignty possible. Spanish Ministry of Defence, Press Release, 6 October 2007, http://www.mde.es/gabinete/notasPrensa/. Spanish Ministry of Interior, Press Release, 28 February 2008, http://www.mir.es/DGRIS/ Notas_Prensa/Ministerio_Interior/.

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the sensitivity of the objectives they pursue, the operative issues they deal with, and their effects on African countries,46 the lack of public access to the text of the arrangements hinders democratic control, transparency and the scrutiny of their compatibility with international law. For these reasons, our discussion of them is limited to the information published by the Spanish Ministries press office and the media. According to the exclusive sovereignty that coastal States enjoy over their territorial waters, the authorities of another State are not permitted to carry out control or interdiction activities in those waters without the coastal State’s permission, since these would constitute a limitation of its sovereign rights.47 We must assume that the authorisation is contained in the maritime surveillance arrangements mentioned above. As regards the exercise of specific powers in the framework of joint sea patrols, a coastal State could authorise a third State, Spain in this case, to perform surveillance and interception activities, either by allowing the presence of Spanish agents on board the coastal State’s ships, or by permitting the deployment of surveillance operations undertaken by Spanish State ships.48 In any case, the powers of the authorised State’s agents depend on the scope of the authorisation given by the agreement or memorandum signed for that purpose, and in any event national agents of the African countries involved should be on board, since only the latter are entitled to enforce the third country internal legislation on border control with regard to vessels intercepted inside its territorial waters.49 As a consequence, Spanish agents ought to limit themselves to providing technical assistance to African agents, and are entitled neither to stop those vessels trying to leave the jurisdictional waters of the country in question, nor to divert

46

47

48 49

Sergio Carrera, “The EU Border Management Strategy. FRONTEX and the challenges of irregular immigration in the Canary Islands”, CEPS Working Document no. 261 (March 2007): 22, available from http://www.ceps.eu. See Ruth Weinzierl and Urszula Lisson, supra note 9, 34, 58; J. Daniel Oliva Martínez, supra note 9, 20. See SEC (2007) 691, supra note 29, 18. According to FRONTEX information: “A Mauritanian or Senegalese law enforcement officer is always present on board of deployed Member States’ assets and is always responsible for the diversion”: FRONTEX, News Releases, “Hera 2008 and Nautilus 2008 Statistics”, 23 September 2008, http://www.frontex.europa.eu/newsroom/news_releases/art40.html (accessed 30 June 2009). In a similar way, Regulation EC No. 2007/2004 establishing the FRONTEX Agency, as amended by Regulation No. 863/2007, states that during operations in the territory of a Member State, guest officers of other Member States “may only perform tasks and exercise powers under instructions from and, as a general rule, in the presence of border guards of the host Member State” (Art. 10.3). Moreover, the decision to refuse entry shall be taken only by border guards of the host Member State (Art. 10.10).


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them back to the coast. However, the presence of Spanish agents in the territorial waters of other States party to maritime surveillance arrangements has similar effects in practice, turning the latter into extraterritorial instruments of migration controls. It would be a different issue if Spain simply sent material resources to its African partners so that they might carry out more effective border controls on their own. On the contrary, the use of Spanish ships and the fact that they are commanded by Spanish agents imply, in our view, participation to some extent in the third countries’ public order activities, despite the African agents being on board. Thus, instead of being circumscribed to controlling its own borders, Spain agrees with third countries of departure that it will be involved in the control of their frontiers to such an extent that Schengen borders blur and shift to the point of departure of the migration voyage. In this way, the so called “fight against irregular immigration” seems to be turning into the control of “irregular emigration”, with the implications this may have for human rights. Firstly, what of the controversial fundamental right of every person to leave a country, including his own?50 Although this is not an absolute right, and so may be subject to restrictions provided by law which are necessary and proportionate for achieving certain legitimate state interests such as the maintenance of public order, public safety or national security,51 doubt remains as to whether exit controls can be easily justified on these grounds. Secondly, we do not know exactly which specific actions take place with regard to detected vessels and the persons travelling on board, or whether the latter are entitled to the due legal safeguards which would apply to any person stopped when trying to cross Spanish borders irregularly. In this respect, both the Schengen Borders Code and Spanish legislation on aliens are apparently sufficiently protective, since they provide the immigrant with the right to be informed about the applicable measure, the right of (free) legal assistance, the right to an interpreter and the right of appeal against the decision to refuse entry.52 However,

50

51

52

Art. 12.2. ICCPR: “Everyone shall be free to leave any country, including his own”. In a very similar wording, Art. 2.2 of Protocol No. 4 to the ECHR and Art. 12.2 of the 1981 African Charter on Human and Peoples’ Rights. Art. 12.3 ICCPR; Art. 2.2 Protocol No. 4 of the ECHR and Art. 12.2 of ACHPR, among others. See in this regard, Vincent Chetail, “Freedom of movement and transnational migrations: a human rights perspective,” in Migration and International Legal Norms, ed. T. Alexander Aleinikoff and Vincent Chetail (TMC Asser Press, 2003), 47–60; Galina Cornelisse, Immigration detention, territoriality and human rights: Towards destabilization of sovereignty’s territorial frame ?, PhD thesis, Department of Law, European University Institute, Florence (February 2006), 140 et seq. Art. 13 of EC Regulation No. 562/2006, of 15 March 2006, establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 105, of 13 April 2006, Art. 58 of Organic Law No. 4/2000 on the rights and liberties of aliens

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these guarantees do not apply.53 As we are in the jurisdictional waters of a third country and interdiction powers are exercised by its own agents, the applicable legislation is that of the third country, whose legal safeguards we do not know. In their absence, one could ask oneself whether it would be possible to argue that Spain is cooperating in the violation of the migrants’ rights. Moreover, joint sea border patrols deployed in the waters of countries of departure seem to conflict with the right to seek asylum and the “non-refoulement” principle. For instance, if the person intercepted by Senegalese agents in Senegalese waters is a third country national who flees from persecution in his country of origin, he will be able to ask the Senegalese agents for asylum. On the contrary, Senegalese citizens who try to leave their country will not be entitled to apply for asylum, since the Geneva Convention on Refugees cannot be invoked unless the asylum seeker is outside the country of his nationality.54 The situation envisaged would be more complicated if the person stopped had gone on board the Spanish ship which participated in the joint patrol. In that case, could we consider that, since the person would be under Spanish jurisdiction, the return to Senegalese territory would imply a violation of the “non-refoulement” principle by Spain?55 Furthermore, what if the third country with which Spain puts joint patrols in place has not enacted a law on asylum nor does it have the adequate procedure for according asylum? In order to respond to these questions, it is necessary to establish whether possible violations of the “non-refoulement” principle and other fundamental rights committed by a third country’s agents, as a result of the common action of Spain and that country, can trigger the international responsibility of both states. While this question falls outside the scope of this contribution,56 in our opinion, the lack of consensus over it is being used by European States to their own benefit. Claiming that border controls are performed by the third State’s agents and inside

53 54 55

56

in Spain and their social integration (Ley Orgánica sobre derechos y libertades de los extranjeros en España y su integración social, hereinafter “LOEx”), consolidated version, and Art. 157 of Royal Decree No. 2393/2004, of 30 December, approving the Executive Regulation of Organic Law 4/2000. See Carrera, supra note 46, 26–27. Art. 1 of the Convention Relating to the Status of Refugees of 1951. See María-Teresa Gil-Bazo, “The practice of Mediterranean States in the context of the European Union’s Justice and Home Affairs External Dimension. The safe third country concept revisited”, International Journal of Refugee Law 18 (2006): 571–600. Concerning international responsibility of States in this issue, see Den Heijer’s contribution to this volume. Also Savitri Taylor, “Offshore barriers to asylum seeker movement: the exercise of power without responsibility?”, in Forced Migration, Human Rights and Security, ed. Jane McAdam (Hart Publishing, 2008), 94–127; Ruth Weinzierl and Urszula Lisson, supra note 9, parts IV and V.


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the latter’s jurisdiction, countries like Spain free themselves from their international duties regarding human rights when conducting migration controls in foreign territorial waters.57 Finally, the lack of publication of the surveillance agreements prevents us from finding out whether these are signed by the representatives of the States involved, legitimised to engage them internationally, or whether instead they are directly concluded between border authorities, who lack a treaty-making power. In some cases, it is pointed out that the agreements have been concluded between the Spanish Guardia Civil and the other State’s Gendarmerie,58 whereas, in some other cases, reference is made to the Spanish Interior Ministry and its counterpart.59 As far as Spain is concerned, the Guardia Civil cannot be included among the Spanish organs responsible for international relations and entitled to bind Spain internationally. The fact that the presence of Spanish ships in foreign territorial waters with surveillance purposes seems to be permitted in some cases through memoranda concluded by the Guardia Civil is not correct. It would require, in our view, an additional international treaty covering the questions of limitation of sovereignty and of responsibility for the actions which are conducted. In this regard, the most recent development is the publication in June 2009 of an international agreement between Spain and Cape Verde “on the joint surveillance of maritime spaces under Cape Verde’s sovereignty and jurisdiction”.60 This agreement was signed on February 2008 and entered into force in April 2009, although joint patrols between Spain and Cape Verde have been in place since March 2007 as we have seen above. By this treaty, the Parties agree on the conditions for the deployment of joint patrols in Cape Verdean waters with the aim of fighting against different forms of organised crime, especially drug trafficking, the arms trade and “illegal emigration”.61 This agreement responds to some of the questions raised above. Indeed, it can be considered to be the authorisation needed for the deployment of Spanish naval and air forces into Cape Verde’s waters, according to international law.62 Regarding the distribution of powers 57 58

59

60 61 62

See Gammeltoft-Hansen, supra note 4, 19 et seq. See the information that has been published in relation with the setting up of SpanishMauritanian joint patrols within the framework of the ATLANTIS project: Guardia Civil, Spanish Ministry of Interior, Press Release, 21 June 2006, http://www.mir.es/DGRIS/Notas_ Prensa/Guardia_Civil. See the Press Release regarding the recent agreements concluded with Gambia, Guinea and Guinea Bissau: Spanish Ministry of Interior, Press Release, 28 February 2008, http://www.mir .es/DGRIS/Notas_Prensa/Ministerio_Interior/. BOE of 5 June 2009, no. 136. Note the term used. In this regard, the preamble of the agreement makes reference to the UNCLOS and Palermo Protocol Against the Smuggling of Migrants by land, sea and air.

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between the two States, it stipulates that patrols may be executed using either Cape Verdean vessels or aircraft with Spanish personnel on board, or by Spanish vessels or aircraft with “effective and mandatory presence of Cape Verdean personnel” on board.63 The text specifies that at least one member of the Cape Verdean Coastal Guard should always be on board Spanish vessels or aircraft,64 and that control, visit or arrest interventions – and especially the latter – should only be carried out by Cape Verdean authorities or under their command,65 endorsing what has been said above. Specific questions like patrol modes, periods, length, operational procedures or exchange of information are to be agreed on by the Parties66 – through, in our opinion, memoranda of understanding like the already existing one. This is precisely the main criticism to be made of the agreement. Although it solves the problem of publicity and the need for an international agreement allowing for the limitation of sovereignty that the deployment of foreign patrols implies, the joint patrols between Cape Verde and Spain, as we said, have been in place since 2007, something which is even acknowledged by the agreement itself when it makes reference to the memorandum of understanding signed in March 2007 on joint maritime patrols.67 Consequently, this new agreement seems to be a belated measure adopted with the sole aim of filling a legal vacuum. Moreover, since the Spanish ratification of this treaty needed the previous authorisation of the Spanish Parliament,68 it is, in our view, difficult to accept that this authorisation has been requested one year after the setting up of joint patrols, thus rendering useless the Parliament’s opinion on the issue.69 Concerning responsibility issues, the agreement between Cape Verde and Spain firstly indicates that each Party shall account for the actions carried out during the joint surveillance missions “within the limits of its responsibilities”.70 In our view, this provision cannot exclude the hypothesis of Spanish responsibility 63 64 65 66 67 68

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Article 3 of the agreement. Article 6.4. Article 6.5. Articles 3.2 and 6.6. See supra note 44. Authorisation granted by the Spanish Congress on 11 December 2008 (BOCG, Congreso de los Diputados, Serie C, no. 70–3, 16 December 2008) and by the Spanish Senate on 11 February 2009 (BOCG, Senado, Serie IV, no. 59 (c), 16 February 2009). Art. 94.1 of the Spanish Constitution requires the previous authorisation of the Spanish Parliament as regards the consent to enter into international agreements of political nature (94.1(a) ), of military nature (94.1(b) ), affecting the territorial integrity of the State or fundamental rights (94.1(c) ), implying financial obligations (94.1(d) ) or implying a legislative modification or derogation or requiring legislative measures for their implementation (94.1(e) ). Although it has not been indicated in the authorisation, this case could be related to letters a, b, c or d. Article 8 of the agreement.


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for possible human rights violations committed by Cape Verdean authorities, in case this could be asserted according to general international law. Secondly, the agreement states that its provisions shall be without prejudice to the rights and obligations of the Parties arising from other international treaties or conventions.71 This clause could be read as an implicit reference to the Geneva Convention on refugees and other human rights international instruments. Consequently, it is the effective implementation of the agreement which has to be monitored in order to make sure that intercepted persons are able to apply for asylum, that the non-refoulement principle is respected and that legal guarantees are accorded to the individuals affected. Therefore, after the publication of this agreement, we could conclude that some of the concerns expressed above remain valid, and obviously with regard to the other African partners with which Spain has put in place joint patrols for the surveillance of their jurisdictional waters. Joint sea border operations deployed by Spain under those arrangements Under the maritime surveillance arrangements referred to above, Spain has engaged in several sea operations for irregular immigration control with certain African countries. By way of illustration, reference can be made to the ATLANTIS Project, which started in May 2006 for a three-month period, with the aim of fighting against irregular immigration by sea coming from Mauritania with Spanish territory as its destination.72 This maritime operation included training for the Mauritanian border agents to be provided by the Guardia Civil; the supply of surveillance equipment (patrol boats, all-terrain vehicles and computer material);73 sending a Spanish liaison officer and, of course, the implementation of joint sea patrols by the Spanish Guardia Civil and the Mauritanian Gendarmerie. It is worth stressing that the project was 60% financed by the European Commission. Its follow-up was called “Operación Cabo Blanco” and extended from August to December 2006.74

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Article 12. Guardia Civil, Spanish Ministry of Interior, Press Release, 21 June 2006, http://www.mir.es/ DGRIS/Notas_Prensa/Guardia_Civil/. It is worth highlighting the subsidy accorded by Spain to Mauritania, consisting of material resources for the surveillance of its coasts to the value of €655,000, by virtue of Royal Decree 187/2007, of 9 February 2007 “regulating the granting of an extraordinary subvention to the Islamic Republic of Mauritania in order to improve its border controls and the fighting against illegal emigration”, BOE of 14 February 2007, no. 39. Government’s answer to written parliamentary question, no. 184/136290, author: Gil Lázaro (PP), BOCG, Congreso, Serie D, no. 666, 18 January 2008.

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Also in 2006 the SEA HORSE Project was launched. Led by Spain and operatively managed by the Guardia Civil, this project is aimed at stemming irregular immigration by sea through the cooperation of third countries situated on migration routes towards Spain.75 On the African side, Morocco, Mauritania, Senegal and Cape Verde are involved, while, on the European side, Italy, Germany, Portugal and France are associated with the project. Among the planned activities are the training of African border guards; specific training to help Mauritania in the establishment of a maritime service; the creation of a liaison officers network in ports; the strengthening of joint patrols with Morocco76 and their later extension to the other African countries involved.77 The project is three years long and is funded within the framework of the AENEAS Community programme.78 Finally, we may mention the so-called Operation NOBLE CENTINELA (“Loyal Sentry”), activated in May 2006 with the purpose of patrolling the area covering Cape Verde, Senegal, Mauritania and the Canary Islands, in cooperation with these countries. Besides employing naval forces to carry out the joint patrolling, this operation implies the supply of air forces with the same purpose, as well as the training of third countries’ agents.79 This operation was launched under intervention protocols signed by the Spanish Ministry of Defence and not the Ministry of Interior, the department upon which responsibility for irregular immigration has been directly conferred. This is explained by the fact that the Spanish Army, entitled to act both within national territory and out of it, collaborates with the Guardia Civil in the surveillance of maritime zones.80

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Spanish Ministry of Interior, Press Release, 1 March 2006, http://www.mir.es/DGRIS/Notas_ Prensa/Ministerio_Interior/. Like Mauritania, the Moroccan Government has also been granted material support for border surveillance purposes, amounting to €11million, pursuant to Royal Decree 845/2006, of 7 July 2006, BOE of 8 July 2006, no. 162. For instance, Operation “Gorée” was developed under the framework of the Sea Horse project from 8 September 2006 to 31 December 2006 and consisted in the deployment of mixed patrols between Spain and Senegal. Government’s answer to written parliamentary question, no. 684/050026, author: Badia i Chancho (CIU), BOCG, Senado, Serie I, no. 705, 9 May 2007. Regulation No. 491/2004 of the European Parliament and of the Council, of 10 March 2004, establishing a programme for financial and technical assistance to third countries in the areas of migration and asylum (AENEAS), OJ L 80, 18 March 2004, replaced by the Thematic Programme for the cooperation with third countries in the areas of migration and asylum, laid down by Regulation No. 1905/2006 of the European Parliament and of the Council, of 18 December 2006, establishing a financing instrument for development cooperation, OJ L 378, 27 December 2006. Spanish Ministry of Defence, Press Release, 6 October 2007, http://www.mde.es/gabinete/ notasPrensa/. Art. 16 (a) of the Organic Law No. 5/2005, of 17 November, on National Defence, BOE of 18 November 2005, no. 276. Under Art. 16 (c), the Army also collaborates in search and rescue functions.


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Concerning the effectiveness of the operations implemented to date, the Spanish Government celebrates the fact that the arrival of irregular immigrants by sea to Spanish territory has decreased. In 2007, arrivals on Spanish coasts were 54% lower than in 2006, passing from 39,180 to 18,057.81 In 2008, the figures continued to decline, with 13,424 arrivals.82 Recent data also show that during the first six months of 2009 immigration by sea to the Canary Islands dropped by 47% by comparison with the same period in 2008.83 According to the Government, this decline is explained by the growing cooperation of the African countries where migrants start their journey, since 9,819 people were intercepted thanks to the Mauritanian cooperation during 2006,84 while in 2007 and 2008 8,574 and 8,024 migrants, respectively, were prevented from departing, due to the collaboration of the African partners.85 In the light of these data, we can agree with the Spanish Government that maritime joint operations are efficient in preventing would-be immigrants from leaving for Spanish coasts. It is true that the above-mentioned figures show a substantial decrease of clandestine immigration by sea from 2006 to 2008. That does not imply that irregular migration is being effectively tackled, however. Reference has already been made to the diversion of migration routes, something that is occurring not only between the routes with Spain as the destination, but also among the numerous routes towards other EU Member States.86 It should not be forgotten either that 2006 was the year of the “migration crisis” explosion for Spain, when arrivals by sea increased from 11,781 in 2005 to 39,180 in 2006,87 before plummeting in the subsequent years (see figures above). Taking into account that in 2005 most of the joint control measures were not yet in place and that the figures that year were not very high, we come to the conclusion

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Spanish Ministry of Interior, “Balance de la lucha contra la inmigración ilegal 2007”, 9 January 2008, http://www.mir.es/DGRIS/Balances/ (accessed 30 June 2009). Spanish Ministry of Interior, “Balance de la lucha contra la inmigración ilegal 2008”, 12 January 2009, http://www.mir.es/DGRIS/Balances/. Up to April 2009, 1,472 migrants have arrived to the Canary Islands, while 2,784 did during the same period of the year 2008. Overseas Immigration News, 15 May 2009. Spanish Ministry of Interior, “Balance de la lucha contra la inmigración illegal 2006”, 21 February 2007, http://www.mir.es/DGRIS/Balances/. See the Assessment of 2007 already mentioned and the Appearance of the Interior Minister before the Spanish Congress, supra note 36, 4. According to Gil Arias, Deputy Director of FRONTEX, a diversion effect in Sub-Saharan migration flows heading to the Canary Islands has taken place, since they are now moving to Libya in order to take afterwards the maritime route to Lampedusa (Italy) or Malta. “Frontex afirma que llegan menos pateras a Canarias por un “efecto desplazamiento” a Italia”, Europa Press, 30 July 2008, http://www.europapress.es/. See the Assessment of 2006 mentioned before.

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that other factors beyond cooperation on border control must have also contributed to the reduction shown by recent data concerning immigration by sea to Spain.88 Nor do we share the emphatic Government assertion that irregular migration by sea is decreasing, since the Government can only provide the numbers of migrants who have been intercepted before leaving the country of departure, or when trying to cross Spanish borders. It cannot know accurately the number of persons who have managed to slip past border controls and irregularly enter its territory. Nor do Government data take into consideration the number of people who have died or disappeared in their attempt to reach a better life.89 In this regard, some try to justify the usefulness of joint patrols on the basis of humanitarian concerns, since intercepted persons would have been saved from certain death at sea, implying a higher death toll in their absence.90 Notwithstanding this, it seems clear that the humanitarian justification is merely incidental, as the clear objective of pre-border measures is migration control.91 In addition, against those justifications, others argue that increasing interceptions at sea may even contribute to the rising death-toll among the would-be immigrants.92 Lastly, the effects these strategies have on the third countries of transit which actively collaborate in controlling our borders are not taken into account. At present, migration stocks appearing in the countries which constitute the last stage of the journey to Europe are growing in such a way that these are being transformed into immigration countries.93

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For instance, the economic crisis: “La crisis económica frena en seco la llegada de inmigrantes irregulares”, ELPAIS.com, 27 April 2009. During 2006, the number of migrants who died or disappeared in their attempt to reach Spanish soil amounted to 1,167, although the estimated numbers rise to 7,000. In 2007, the death toll was set at 921, with estimates of 3,500. In 2008, 581 victims have been reported, with estimates rising to 2,900. See: APDHA, “Derechos Humanos en la frontera sur”, reports of 2006, 2007 and 2008, http://www.apdha.org (accessed 30 June 2009). See for instance, at European level, “The Hague Programme: strengthening freedom, security and justice in the European Union”, OJ C 53, 3 March 2005, point 1.6.1, and, at Spanish level, Appearance of the Minister of Interior before the Congress, Diario de Sesiones del Congreso, Comisión de Interior, 21 February 2007, p. 11. Roderick Parkes, Joint Patrols at the EU’s Southern Border. Security and Development in the control of African Migration (Berlin: German Institute for International and Security Affairs, SWP Comments 21, August 2006): 2. Derek Lutterbeck, supra note 22, 69; Thomas Spijkerboer, “The Human Costs of Border Control,” European Journal of Migration and Law, 9 (2007): 136, 138. Mohamed Kachani, “La emigración subsahariana: Marruecos como espacio de tránsito,” Documentos CIDOB Serie Migraciones no. 10 (Diciembre 2006): 25–26.


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From our point of view, this means that Spanish policy has not discouraged would-be migrants from starting their journey, but merely prevents arrivals on Spanish soil. This turns the extraterritorial strategies of migration control into short-term and self-interested measures, which take into account neither the pernicious effects they provoke in countries of origin and transit, nor their limited influence on the need to migrate. Connection with FRONTEX operations at sea Within the framework of EC border policy, operational cooperation among Member States and its extension to third countries of origin and transit is seen as a key instrument for the reduction of irregular immigration. The creation in 2004 of the European Agency for the management of operational cooperation at the external borders of the EU Member States (FRONTEX), and the tasks conferred on it, are clear evidence of this purpose.94 FRONTEX has been mandated, among other functions, to coordinate operational cooperation in border control between Member States,95 as well as to facilitate this cooperation between Member States and third countries.96 As far as maritime border control is concerned, those functions have led to the implementation of joint operations coordinated by FRONTEX, many of which have been aimed at curbing irregular migration by sea towards Spain. Amongst those operations, we can mention the HERA operation, launched at the request of the Spanish Government on the basis of Art. 8 of Regulation No. 2007/2004, which foresees support for Member States confronted with special circumstances requiring increased technical and operational assistance. This joint operation is divided into several modules. Firstly, HERA I was devoted, from July to October 2006, to assisting Spain in the identification of irregular migrants who arrived at the Canary Islands without documentation, while HERA II, deployed from August to December 2006, aimed at preventing the departure of

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For a more in-depth analysis of the role of FRONTEX, see Baldaccini’s contribution to this volume; Ilkka Laitinen, “FRONTEX and African illegal migration to Europe”, in Africa and Fortress Europe, Threats and Opportunities, ed. Belachew Gebrewold (Ashgate, 2007), 127–137; Hélène Jorry, Construction of a European institutional model for managing operational cooperation at the EU’s external borders: Is the FRONTEX Agency a decisive step forward? (Brussels: CEPS, CHALLENGE Research paper no. 6, March 2007), available from http://www.ceps.eu, and Carrera, supra note 46. Art. 2.1 (a) and Art. 3 of the Council Regulation No. 2007/2004 of 26 October 2004 establishing a European Agency for the management of operational cooperation at the external borders of the Member States of the European Union, OJ L 349, 25 November 2004 (as amended by Regulation No. 863/2007). Art. 14 of Regulation No. 2007/2004.

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vessels from the African coasts towards the Canary Islands, through the establishment of joint patrols in the coastal areas of Mauritania, Senegal and Cape Verde. HERA III, which ran from February 2007 until April 2007, combined two parts corresponding to the previous activities developed within HERA I and HERA II: the identification of irregular migrants and joint patrols in the countries of origin. As a follow-up, HERA 2007 and HERA 2008 also involved air and naval surveillance of the Western Africa migration route heading to the Canary Islands. The whole operation HERA is therefore the longest one coordinated by FRONTEX to date. Furthermore, from July to September 2006, the AGIOS operation was put in place with the aim of controlling ferry passengers travelling from North Africa to the seaports of Tarifa, Algeciras, Almería and Alicante and detecting the use of forged documents. Similarly, the MINERVA operation was launched in August 2007 with the purpose of exhaustively controlling the southern coast of mainland Spain, involving border controls at the seaports of Algeciras and Almería, identity checks in the seaport of Ceuta, as well as the control of the Spanish coastal waters with the greatest number of arrivals of migrants from Algeria and Morocco. Finally, the HERMES operation consisted of the organisation of joint patrols during September 2007 in order to tackle irregular immigration heading by sea from North Africa, especially Algeria, to Spain and Italy, while INDALO 2007, deployed in November of that year, aimed at patrolling the re-opened migratory route from Morocco and Algeria to the Spanish coast of Levante.97 Following this brief review, the first remark to make is that some of the operations undertaken under the FRONTEX umbrella share specific objectives, third country partners and even sometimes time periods with the operations led by Spain, analysed in the previous section. In addition, FRONTEX operations involving the deployment of joint patrols in the territorial waters of third States are based upon the bilateral arrangements on maritime surveillance entered into by Spain with African countries, referred to above.98 Consequently, these agreements do not only allow sea operations 97

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All the information related to the above-mentioned operations comes from “Joint Operations”, FRONTEX website, http://www.frontex.europa.eu/examples_of_accomplished_ operati/; FRONTEX general reports 2006, 2007 and 2008, http://www.frontex.europa.eu/ annual_report (both accessed 30 June 2009). The outcomes of these operations may be consulted in the Commission Staff Working Document accompanying the Communication on the Report on the evaluation and future development of the FRONTEX Agency, Statistical Data, SEC (2008) 150, 13 February 2008. See, for instance, the FRONTEX News Release of 19 December 2006, (http://www.frontex .europa.eu/newsroom/news_releases/art8.html, accessed 30 June 2009), which explains HERA operation and makes reference to the bilateral agreements signed by Spain with Senegal and Mauritania as the legal basis for the joint patrols set up under the Agency’s coordination.


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headed by Spain, but also constitute the authorisation required for organising joint sea patrols coordinated by FRONTEX in the maritime zones of the third countries involved. Since other Member States take part voluntarily in the latter, the presence in foreign waters of ships from those Member States seems also to be covered by the Spanish bilateral agreements.99 In this regard, FRONTEX itself is entitled to negotiate and conclude “working arrangements” with third countries “in matters covered by its activities and to the extent required for the fulfilment of its tasks”.100 Priority countries with which FRONTEX plans to conclude these kinds of agreements are the candidate countries for EU accession, neighbouring countries and other third countries considered as countries of origin or transit for irregular migration or other serious border crimes.101 To date, FRONTEX has signed arrangements with Russia, Switzerland, Ukraine, Croatia, Moldova, the Former Yugoslav Republic of Macedonia, Georgia, Serbia, Albania, Bosnia and Herzegovina, the United States and Montenegro102 and has been mandated to negotiate with Turkey, Cape Verde, Egypt, Libya, Mauritania, Morocco and Senegal.103 In these “working arrangements”, it is expressly stated that, among other actions, FRONTEX will

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See the Press Release of the Spanish Interior Ministry of 28 February 2008, concerning the agreements on maritime surveillance that have been concluded by Spain with Gambia, Guinea and Guinea Bissau (see footnote 45). Moreover, the text of the agreement concluded between Spain and Cape Verde, recently published, makes reference, under the implementation conditions, to the possible integration in other operations coordinated by FRONTEX (see footnote 60, Article 6.2). Art. 14 of Regulation No. 2007/2004 in connection with Art. 2. See, in this regard, the Commission’s proposal to extend the mandate of the Agency, so that it would be able to carry out technical assistance projects with third countries as beneficiaries: European Commission, Communication on “Report on the evaluation and future development of the FRONTEX Agency”, COM (2008) 67, 13 February 2008, 8. See also European Parliament, “Report on the evaluation and future development of the FRONTEX Agency and of the European Border Surveillance System (EUROSUR)”, Committee on Civil Liberties, Justice and Home Affairs, Rapporteur: Javier Moreno Sánchez (2008/2157(INI) ), 11 November 2008, points 19 and 27. See www.frontex.europa.eu/external_relations/ (accessed 30 June 2009). Regarding the negotiation and conclusion procedure, see Decision of the Management Board of FRONTEX of 10 September 2006, “laying down the procedures for negotiating and concluding working arrangements with third countries and international organisations”. The text of some of the arrangements has been consulted by the author after formal request to FRONTEX. Concerning the arrangements with Serbia, Albania, Bosnia and Herzegovina, the United States and Montenegro, see FRONTEX News Releases of 17 February 2009, 20 February 2009, 3 April 2009, 29 April 2009 and 18 June 2009, respectively, available from http://www.frontex.europa.eu/newsroom/news_releases/. COM (2008) 67, supra note 100, 8–9 and the answer given by Mr Barrot on behalf of the European Commission, Parliamentary question No. E-3811/2008, 10 September 2008.

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coordinate joint operational measures between Member States and the third country in question. Furthermore, according to the information published by the Spanish Ministry of Interior, during the negotiations on the recent agreements concluded by Spain with Gambia, Guinea and Guinea Bissau, the Deputy Director of FRONTEX was present, since the Agency “has in mind to absorb those agreements in a near future”.104 All these considerations inevitably lead us to assess the distribution of competences in external border control between Member States and the FRONTEX Agency. At the moment, the rules contained in Regulation No. 2007/2004 favour a shared competence. Article 1.2 recalls that responsibility for the control and surveillance of external borders continues to lie in the hands of Member States, and that the Agency’s task is to facilitate cooperation between them. Concerning more specifically operational cooperation, Article 2.2 of the Regulation clearly rules out the exclusive competence of the Agency,105 as it allows Member States to continue operational cooperation with other Member States and/or third countries outside the FRONTEX umbrella, which makes the aforementioned Spanish operations compatible with European Law.106 Nonetheless, the Regulation stipulates, in its Article 2.2, that Member States’ powers shall be permitted “where such cooperation complements the action of the Agency”, and continues on to state that Member States shall refrain from any activity which could jeopardise the functioning of the Agency or the attainment of its objectives. Member States shall report to the Agency on these operational matters at the external borders outside the framework of the Agency.

Because of this, it is legitimate to ask whether the simultaneous conduct of border operations at sea, organised bilaterally by Spain, on the one hand, and carried out under FRONTEX coordination, on the other, sharing objectives,

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Spanish Ministry of Interior, Press Release, 28 February 2008, http://www.mir.es/DGRIS/ Notas_Prensa/Ministerio_Interior/ (author’s translation). See Valsamis Mitsilegas, “Border security in the European Union: Towards centralised controls and maximum surveillance,” in Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy, ed. Anneliese Baldaccini, Elspeth Guild and Helen Toner (Oxford: Hart Publishing, 2007), 370 and Steve Peers, EU Justice and Home Affairs Law (Oxford: Oxford University Press, 2nd edition, 2006), 143. It is also necessary to recall that Protocol No. 31 on the external relations of the Member States with regard to the crossing of external borders, added by the Amsterdam Treaty in 1997, maintains the competence of Member States to negotiate or conclude agreements on border issues with third countries “as long as they respect Community Law and other relevant international agreements”, OJ C 321 E, 29 December 2006. In the future Treaty of Lisbon, this protocol is kept with a similar wording as Protocol No. 23, OJ C 115, 9 May 2008.


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third countries and using as a basis the same bilateral agreements, are complementary or rather overlapping. We would add that Spanish operations have been made possible, in many cases, thanks to Community funding, as indicated above. The question that might be raised here is whether the Agency should be granted the exclusive power to manage the operational cooperation at the external borders of the EU and thus avoid any risk of overlap. It is true that, at present, it seems difficult to argue in favour of an exclusive competence, taking into account the current wording of the Agency’s Regulation.107 However, the obligation of compliance with the principle of loyal cooperation of the Member States towards the Community enshrined in Article 10 of the EC Treaty and, specifically, towards the Agency, pursuant to Article 2.2 of its Regulation, should not be forgotten, as a duty limiting the exercise of national competences.108

3. Spain and the extraterritorial pursuit of organised crime at sea, especially the smuggling of migrants General remarks: international cooperation to combat organised crime Immigration by sea cannot be tackled exclusively through control mechanisms aimed at preventing persons entering the countries of destination irregularly. It is also essential to decisively combat the organised criminal groups which prepare the journeys, profiting from putting migrants’ lives at risk. Since the strengthening of migration controls may have brought about a growing involvement and professionalisation of smugglers,109 cooperation in the pursuit of this crime seems even more necessary. The determination to fight against this new form of organised crime has led to the implementation of several patterns of international cooperation, both among the countries of destination and between these and the countries of origin and transit. The best-known example is the United Nations Convention against Transnational Organised Crime (hereinafter “UNCTOC”) signed in New York in 2000 and the aforementioned Palermo Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing it.110 These instruments lay down 107

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It is also difficult to see how FRONTEX working arrangements would replace the bilateral agreements signed by Spain with third countries, allowing the presence of Member States’ ships and aircraft in the jurisdictional waters of third countries. In this regard, the limits of the Agency’s mandate and its apparent lack of international legal personality must be recalled. See in this regard Jorrit Rijpma and Marise Cremona, supra note 4, 11. Derek Lutterbeck, supra note 22, 74 and 78. Although we will not deal with trafficking of human beings in this contribution, we can not fail to mention the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially

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a series of obligations, as well as powers to be used by the States that are party to them, in order “to prevent and combat the smuggling of migrants”.111 As far as Spain is concerned, in the light of these texts, several measures have been adopted to enhance criminal cooperation with the African countries located on the migration routes towards its territory. Immigration liaison officers have been sent to partner countries with the intention of reinforcing the fight against smuggling within the framework of the maritime operations led by Spain commented on above, such as the ATLANTIS112 or SEA HORSE projects.113 The objective is to set up and maintain contacts with third country authorities in order to facilitate the exchange of information concerning migration routes, usual places of boarding and disembarkation, means of transport, methods employed by criminal organisations, etc.114 Furthermore, at the Spanish Interior Ministry’s proposal, a network of liaison officers has been created in West Africa devoted to combating illegal immigration, bringing together officers deployed by Member States of the so called G-6115 in the countries of the West African coast.116 This network is coordinated by Spain, from the Canary Islands.117 Also within this field, the Spanish Government has attempted to achieve the signing of bilateral conventions in the fight against organised crime with West African countries of origin and transit. The aim of these agreements is to strengthen cooperation in the struggle against several crimes, especially in their organised forms, among which “illegal immigration and trafficking of human beings” are

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women and children, supplementing the UNCTOC and ratified by Spain on 21st February 2002, BOE of 11 December 2003, no. 296. Preamble of the Protocol, recital no. 1. The Spanish Government has sent a liaison officer to Mauritania who is in permanent contact with the Interior Attaché at the Spanish embassy: Spanish Ministry of Interior, Guardia Civil, Press Release, 21 June 2006, http://www.mir.es/DGRIS/Notas_Prensa/Guardia_Civil/. The initial project envisaged the deployment of Spanish officers in Alhucemas and Tarfaya (Morocco); in Nouadhibou (Mauritania), in Dakar (Senegal) and in Santa María (Cape Verde). At the same time, it was planned that foreign officers from Morocco and Mauritania would be posted to Fuerteventura and officers from Morocco to Almería. The detachment of liaison officers may find its basis in Art. 10 of the Smuggling Protocol read in accordance with art. 27.1 (d) and (e) of the UNCTOC. Gathering the Ministers of Interior of France, Germany, Italy, United Kingdom, Poland and Spain. Responding to what is envisaged in EC Regulation No. 377/2004, of 19 February 2004, on the creation of an immigration liaison officers network, whose art. 4 lays down that “Member States shall ensure that their immigration liaison officers posted to the same third countries or regions constitute local or regional cooperation networks among each other. […]”, OJ L 64, 2 March 2004. Spanish Ministry of Interior, Press Release, 29 March 2006, http://www.mir.es/DGRIS/Notas_ Prensa/Ministerio_Interior/.


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included. The cooperation which is foreseen will take the form of exchange of information and experience, cooperation in investigation and search for suspects, coordination of activities, technical and scientific assistance, professional training, etc.118 To date, Spain has concluded agreements of this kind with Cape Verde and Senegal, located in the migration route towards the Spanish coasts.119 The extraterritorial extension of Spanish criminal jurisdiction Within the framework of the so-called “fight” against clandestine immigration by sea, the controversial concept of extra-territorialisation also affects the efforts to combat the smuggling of migrants and to criminally pursue the mafias who are responsible for it. In order to address this form of organised crime, another mechanism put into practice consists of preventing this offence going unpunished, by making it possible for the participating States’ courts to try smugglers arrested both in their territories and beyond their frontiers. Spain is an example worth examining. On 19 November 2007, Organic Law No. 13/2007 for the extraterritorial pursuit of illegal trafficking in or smuggling of persons, was enacted.120 It modified the Spanish Law on the Judiciary (“Ley Orgánica del Poder Judicial”, hereinafter, ‘LOPJ’)121 with the aim of enabling the extension of Spanish criminal jurisdiction to cover the act of smuggling of migrants committed outside Spanish territory. Before this reform, the criteria contained in Article 23 of the LOPJ did not authorise the Spanish courts to initiate a judicial process against the crew of a vessel suspected of trying to bring persons irregularly into Spain when intercepted or rescued outside its territorial sea.122

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In this case, the basis of the conventions against organised crime could lie in art. 27.2 of UNCTOC. Convention between the Kingdom of Spain and the Republic of Cape Verde on cooperation in the fight against crime, done “ad referendum” at Praia on 26 June 2006, BOE of 25 June 2008, no. 153 and Convention between the Governments of the Kingdom of Spain and the Republic of Senegal on cooperation in the fight against crime, done “ad referendum” at Dakar on 5 December 2006, BOE of 14 March 2009, no. 63. Both conventions are inscribed in the so-called Plan África, enacted by the Spanish Government in order to regulate its relations with Sub-Saharan Africa. BOE of 20 November 2007, no. 27, entered into force on 21 November 2007. Organic Law No. 6/1985, of 1 July. We shall refer specifically to the territorial sea, since neither the contiguous zone nor the exclusive economic zone may be included into the concept of Spanish territory for the purposes of territorial criminal jurisdiction. According to UNCLOS, in the contiguous zone, the coastal State is only competent to prevent and punish infringements of its immigration laws committed within its territory or territorial sea. With respect to the EEZ, the coastal State only has jurisdiction with regard to the establishment and use of artificial islands, installations and structures, marine scientific research and the protection and preservation of the marine environment.

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State criminal jurisdiction is, as a general rule, essentially territorial,123 and the common view is that extraterritoriality is prohibited unless international law contains permissive rules for this purpose.124 The territoriality principle must therefore be combined with a number of exceptions, including the personality or active nationality principle, regarding crimes committed by nationals of the State abroad;125 the protective principle, enabling prosecution for conduct which attacks an essential State interest;126 and, the universality or universal justice principle,127 which requires our attention.128 According to the universality principle, state courts are competent to rule on crimes which, regardless of the place of commission and the nationality of their authors and victims, attack international or supranational legal rights of special significance and, for this reason, go beyond the sphere of the individual and specific interests of one or several States.129 The need for a permissive rule in international law, as mentioned above, means that the possibility of asserting universal jurisdiction with regard to the smuggling of immigrants requires pre-existing conventional or customary international legality. For that reason, according to its preamble, the legislative change achieved by Spanish Organic Law No. 13/2007 is based on the Spanish ratification of the UNCTOC and the Smuggling Protocol. The latter binds State Parties to establish

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This is recognised in Art. 23 of the Spanish LOPJ, which also includes the flag or registration principle, assimilated to that of territoriality, under which the Spanish courts shall try the offences committed not only in their territory but also on board Spanish ships or aircraft. Although the assertion of extraterritorial criminal jurisdiction with the exceptions established by the prohibitive rules of international law could be derived from the Lotus case ruled on by the PCIJ in 1927, nowadays it is commonly accepted that the rule is the opposite. See Art. 23.2 of LOPJ. Stipulated in Art. 23.3 of the LOPJ, including offences such as treason, crimes against the Crown or forgery of Spanish currency. See art. 23.4 of LOPJ, which stipulated, in its wording prior to the reform, that the Spanish courts were competent “to try the facts committed by Spanish citizens or aliens outside national territory capable of being typified, according to the Spanish criminal law, as one of the following offences: a) genocide; b) terrorism; c) piracy and illicit seizure of aircraft; d) forgery of foreign currency; e) crimes related to prostitution and corruption of minors or the handicapped; f ) illegal trafficking of psychotropic, toxic and narcotic drugs; g) those related to female genital mutilation, provided that the persons responsible are in Spain; h) and any other that, pursuant to international treaties or conventions, must be pursued in Spain” (author’s translation). We may also mention the principle of passive personality, applicable when the victim of an offence committed abroad is a State national, and the aut dedere aut judicare principle (suppletory justice) in order to try offences committed by aliens abroad, which are harmful to internal interests when the State is not able to extradite the suspect. Ángel Sánchez Legido, Jurisdicción universal penal y Derecho Internacional (Valencia: Tirant Lo Blanc, 2004), 40.


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the smuggling of migrants as criminal offence, understood as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident”.130 As far as jurisdiction is concerned, Article 15 of UNCTOC entitles State Parties to extend their jurisdiction when the offence is committed outside its territory.131 In this way, the Convention recognises the possibility of universal jurisdiction, although it requires a certain connection with the State that tries to exercise it: that the offence “is committed outside its territory with a view to the commission of a serious crime within its territory”.132 As a result, the Spanish Government has made use of the power conferred by the UNCTOC by including “illegal trafficking in or smuggling of persons, whether workers or not” among the offences capable of activating its courts’ jurisdiction extraterritorially, under the new paragraph (g) of Article 23.4 of the LOPJ. These offences, which are set out in Articles 313.1 and 318 bis of the Spanish Criminal Code,133 are deemed to be offences of mere activity so that it is sufficient to “promote, encourage or facilitate” trafficking or smuggling by any means in order for the offence to be committed. It is irrelevant that the migrants do not enter Spanish territory, or that the operation was not completed for reasons beyond their control.134

130 131

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Article 3 (a) of the Protocol. According to Article 1 of the Protocol, “1. This Protocol supplements the United Nations Convention against Transnational Organised Crime. It shall be interpreted together with the Convention. 2. The provisions of the Convention shall apply, mutatis mutandis, to this Protocol unless otherwise provided herein.” Article 15.2(c)(i) (emphasis added). This criterion becomes the connecting point which legitimises the extraterritorial extension of jurisdiction. In this regard, see Francisco Bueno Arús and Juan De Miguel Zaragoza, Manual de Derecho Penal Internacional (Madrid: Universidad Pontificia Comillas, 2003), 144. Art. 313 of the Spanish Criminal Code (CP) punishes the promotion or facilitation of clandestine immigration of workers to Spain, whereas art. 318 bis penalises the promotion or facilitation of trafficking in or smuggling of persons from, in transit or towards Spain. The differentiation between the offences of Art. 313 and 318 bis, on the one hand, and the distinction between the concepts of “illegal trafficking” and “smuggling of migrants” used in Art. 318 bis, on the other, are considered a difficult question in Spanish commentary and case-law. For a more in-depth analysis of these issues, see Esteban J. Pérez Alonso, Tráfico de personas e inmigración clandestina. Un estudio sociológico, internacional y jurídico-penal (Valencia, Tirant Lo Blanc, 2008), 149 et seq.; 247 et seq.; Cristina J. Gortázar Rotaeche, Emiliano García Coso and Antonio Obregón García, “Trafficking in and Smuggling of Human Beings: The Spanish approach,” in Immigration and Criminal Law in the European Union, ed. Elspeth Guild, Paul Minderhoud (Martinus Nijhoff Publishers, 2006), 298–324. See, for instance, the Judgment of the Spanish Supreme Court of 15 June 2007, No. 561/2007, F.J°. 3°. Among the doctrine, we may refer to Cristina J. Gortázar Rotaeche, Emiliano García Coso and Antonio Obregón García, supra, 320.

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In 2007 and 2008, the Spanish Supreme Court (Tribunal Supremo) ruled in several judgments that there was jurisdiction to try the offence of smuggling of immigrants committed by aliens intercepted outside Spanish territorial waters even before Organic Law No. 13/2007 came into force.135 Following the Public Prosecutor’s declarations, the Supreme Court accepted the existence of Spanish jurisdiction, because of pre-existing international legality, derived from UNCLOS, UNCTOC and the Smuggling Protocol, and because of Article 23.4(h) of the LOPJ. Under the latter, Spanish courts may try any other offence committed outside national territory, independently of the author’s nationality, “that, pursuant to international treaties or conventions must be pursued in Spain”.136 In most of these cases, the court of first instance had found a lack of jurisdiction, because the universal justice principle was not applicable to the smuggling of migrants, unless that was oriented to their sexual exploitation.137 For example, in the trial of six third country nationals, charged with having brought 55 SubSaharan immigrants to Spain on board a vessel intercepted outside Spanish jurisdictional waters, the Provincial Court of Las Palmas de Gran Canaria ruled out the application of Article 23.4 (h) of the LOPJ, on the grounds that UNCTOC and, its specific aforementioned Article 15.2.c (i), required Spain to adopt internal rules permitting the use of the power conferred by the Convention.138 In our view, the argumentation followed by the Supreme Court in its judgments is questionable, and the conclusion of the courts of first instance is to be preferred. The extraterritorial extension of jurisdiction contained in Article 15.2(c) of UNCTOC has indeed an optional character. Therefore, it obliges a State which wishes to make use of it to include that extension in its national legislation, even in the case of a State like Spain which follows ‘moderate monism’ in its conception of the relationship between international and internal law.139 For this reason, the reference made by the Supreme Court in its decisions 135

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Judgements of the Spanish Supreme Court of 15 June 2007, No. 561/2007; of 21 June 2007, No. 582/2007; of 21 June 2007, No. 628/2007; of 25 June 2007, No. 554/2007; of 26 June 2007, No. 618/2007; of 5 July 2007, No. 622/2007; of 8 October 2007, No. 788/2007; of 27 December 2007, No. 1092/2007; of 3 January 2008, No. 1121/2008; of 18 February 2008, No. 122/2008. Emphasis added. According to Art. 23(4)(e) of the LOPJ, something that the preamble of the new Organic Law No. 13/2007 acknowledges. Judgment of the Provincial Court of Las Palmas (section 6), 26 October 2006, No. 3/2006. In the same sense, JPC of Las Palmas (section 6), 26 October 2006, No. 1/2006; JPC of Las Palmas, 26 July 2006, No. 108/2006; JPC of Las Palmas, 26 July 2006, No. 109/2006. In a similar way, see JPC of Granada (section 2), 16 February 2007, No. 111/2007. Ángel Sánchez Legido, supra note 129, 85–94.


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to Art. 23.4 (h) of the LOPJ does not seem appropriate, since this provision is only applicable to the offences where international conventions have imposed the exercise of universal jurisdiction compulsorily. The enactment of the new Law No. 13/2007 also endorses this narrower view, when noting in its explanatory preamble that: nowadays, in the event that a vessel is rescued by a Spanish ship outside the territorial sea, with persons who, allegedly, were seeking to enter Spain, regardless of border crossing points authorised to this effect and lacking the appropriate documentation for this purpose, it would not be possible to consider that the Spanish courts have jurisdiction over the preliminary investigation and judgment of the case, unless the smuggling of human beings detected in international waters was oriented to their sexual exploitation, in view of the express provision contained in article 23.4(e) of the Organic Law on the Judiciary.140

The truth is that, by the time of the judgments of the Supreme Court adopted after the entry into force of Organic Law No. 13/2007, the Spanish courts had already acquired the competence to try the smuggling of immigrants committed outside Spanish territory. Consequently, those judgments were not incorrect in their outcome, but in their argumentation. The new law could have been applied by the Supreme Court, since the prohibition on retroactivity of criminal law stipulated by Article 9.3 of the Spanish Constitution is not applicable to procedural rules.141 Concerning the judgments adopted before the entry into force of the new law, however, the assertion of extraterritorial jurisdiction does not appear to have been in conformity with the law for the reasons stated above. Difficulties are also posed by the fact that the Supreme Court’s case law found universal jurisdiction under the UNCTOC and the Smuggling Protocol, without showing much concern for the necessity to prove that those committing the offence were members of an organised criminal group.142 The Protocol always

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Author’s translation. See the National Court (Audiencia Nacional) Orders of 4 and 5 November 1998, Plenary, Criminal Courtroom [third legal finding], although this question is subject to discussion. In this regard, see Francisco Muñoz Conde and Mercedes García Arán, Derecho Penal. Parte General (Valencia: Tirant Lo Blanc, 2007), 141–143. The Supreme Court judgment of 5 July 2007, No. 622/2007, provides in its fourth legal finding that “The fact of the operation of organised illegal immigration to enter Spanish territory illegally is obvious,” whereas the judgment at first instance of the same case had noted that “finally, we would not be faced with an structured criminal organisation, given that all the passengers of the ‘cayuco’ undertake the journey to live in our country, and those who skipper the vessel receive the only benefit of saving the travel price, thus making inapplicable the United Nations Conventions on organised crime, such as the one signed in Palermo from the 12 to the 15 December 2000, against Transnational Organised Crime”: JPC of Las Palmas, 26 October 2006, No. 1/2006 (author’s translation).

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refers to the offence of smuggling of migrants where it involves an organised criminal group,143 while the Convention, in its Article 15.2(c) (i),144 requires the same condition for the extension of jurisdiction.145 In spite of this, the Spanish Criminal Code does not include membership of an organised group as a component of the basic type of offence, but rather treats it as an aggravating circumstance. Organic Law No. 13/2007 does not refer to the commission of an offence by an organised group either. Nevertheless, Article 15.6 of UNCTOC might implicitly allow this when stating that “without prejudice to norms of general international law, this Convention does not exclude the exercise of any criminal jurisdiction established by a State Party in accordance with its domestic law.” In short, we may welcome the extraterritorial widening of Spanish criminal jurisdiction, as human smugglers are responsible for a transnational criminality difficult to repress individually by only one State. However, this jurisdictional extension has to be carried out in accordance with the appropriate legislative channels, such as the new Spanish Organic Law No. 13/2007 does, and not by the courts, which is contrary to legal certainty and the rule of law. Justifications based on humanitarian concerns, or on the efforts to put an end to impunity ought not to serve as a pretext to avoid legal obligations imposed upon States by international law, as well as by their own internal legal order. Other issues concerning the criminal punishment of smuggling and the repatriation process of intercepted migrants The enactment of Organic Law No. 13/2007 aimed at amending the Spanish LOPJ has also included changes to the Spanish Criminal Code as regards the illegal trafficking and smuggling of persons. From now on, not only will the person who “directly or indirectly, promotes, encourages or facilitates the illegal trafficking in or smuggling of persons from, in transit or towards Spain” be punished, but this conduct will also be penalised when the foreseen destination is “another

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Art. 4 of the Protocol. This article establishes that the offence is “One of those established in accordance with article 5, paragraph 1, of this Convention”, which refers to criminal organised groups. Judge Bacigalupo Zapater stated in his concurring opinion to the Supreme Court judgment of 3 January 2008 that “it is, in the first place, at least dubious that in the light of such a succinct factual material it can be held that we are in the presence of an organised criminal group, given that there is no element of judgment in the appealed decision on the existence of the organisation. Precisely, the existence of the organisation and its evidence constitute a procedural assumption that must be proved so that the aforementioned Protocol may be applicable and through it the UN Convention against Transnational Organised Crime” (author’s translation).


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country of the European Union”.146 In our opinion, this amendment is closely linked to the extraterritorial extension of Spanish criminal jurisdiction. If its purpose were merely to include those arrested within Spanish territorial waters but heading to another Member State, the new wording would not have been necessary since this conduct could have been covered by the phrase “in transit”. For this reason, the captains of vessels bound for another EU Member State which are intercepted by the Spanish authorities outside the territorial sea are now responsible for the offence of clandestine immigration under the Spanish Criminal Code and, therefore, may be tried by Spanish courts. Thus, the legal right protected by Article 318 bis of the Criminal Code is slightly transformed: it is not just about protecting the general interest of controlling migration flows to Spanish territory, but also that of the other EU Member States.147 This appears to be logical, if we take into consideration that these States share an area with no internal borders, where freedom of movement is assured de iure for some and de facto for others, and where the establishment of a common policy of immigration has begun. This remark is connected to the first part of the present contribution in relation to State interdiction powers of migrants at sea. In our view, Spain is not exclusively competent to intercept those vessels which, crossing Spanish territorial sea or contiguous zone, intend to disembark irregular immigrants on Spanish coasts. Equally, in the view of the European Commission, in the event that the intention of these vessels is to head towards the coast of another Member State, Spain would also be entitled and even bound to intercept them in its own waters.148 Coming back to the criminal punishment of smuggling, it is worth stressing that in the Spanish legal order the immigrant is not deemed to be criminally responsible for the commission of an offence – this is the case only for a person who promotes or facilitates the illegal immigration of others. The immigrant is on the contrary regarded to be an offender of the Spanish Law on Aliens, since he does not comply with the conditions required to enter Spanish territory legally. However, if the persons are intercepted or rescued on the high seas by the Spanish authorities, one could ask oneself which legal mechanisms will be activated in this case, taking into account that these persons have not entered Spanish territory and have not infringed the Spanish rules on aliens. Firstly, it appears

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Art. 318 bis of the Spanish Criminal Code, according to the wording conferred by the Organic Law No. 13/2007. The same has occurred with regard to the offence against the foreign workers’ rights, under art. 313 of the CP. Regarding the controversial legal right protected by art. 318 bis of the CP, see for instance Cristina J. Gortázar Rotaeche, Emiliano García Coso and Antonio Obregón García, supra note 133, 308 et seq. SEC (2007) 691, supra note 29, 4 and 16.

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that in most of the cases the authorities would not be able to divert the patera or cayuco back, as this would imply, in our view, a breach of human rights, and specifically of the prohibition on inhuman or degrading treatment, bearing in mind the hazardous state in which these vessels sail.149 Hence, the result is that, even if they have not infringed the Spanish law on aliens, those people will be transferred to Spanish territory in order to identify them and determine their nationality. Thus, once the nationality is established, and in the case that there is no application for international protection, they will be repatriated to their country of origin since they lack the proper documents to remain in Spain legally. To this effect, it will be necessary to activate the enforcement of the relevant readmission agreements concluded by the Spanish Government with the migrants’ countries of origin or, when there are no such agreements, to request respect for the obligation to readmit its own nationals, enshrined in customary international law.150 For Spain, as for other countries of destination, repatriation procedures are enormously cumbersome and very costly. People who engage in migration crossings by sea usually lack the necessary documentation that proves their nationality. In consequence, the Spanish administration calls for the cooperation of the consular or diplomatic authorities of the presumed countries of origin so that the latter interview the migrants and, in the event that their nationality is confirmed, issue the travel document necessary to enforce repatriation. While the aforementioned process goes on, the immigrants can be retained in detention centres, under judicial authorisation, and never beyond 40 days, at the expiration of which they must be released.151 This time limit decreed by the Spanish legislation on aliens forces the Spanish authorities to act promptly in order to complete the repatriation process152 in which the cooperation of third countries of origin turns out to be essential.153 149 150

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J. Daniel Oliva Martínez, supra note 9, 7. Spain has concluded bilateral readmission agreements with the following African countries: Morocco (1992), Nigeria (2001), Algeria (2002), Mauritania and Guinea Bissau (2003). More recently and within the framework of the Plan Africa, the Spanish Government has signed framework agreements on migration cooperation with Guinea and Gambia (2006), Cape Verde and Mali (2007), Niger and Guinea Bissau (2008). These treaties deal with the different aspects of migration in a single instrument, including the readmission of persons in an irregular situation. Art. 62.2 of LOEx and 153.5 of Royal Decree No. 2393/2004. The Spanish Government’s bill on the reform of the Law on aliens, whose processing by the Spanish Parliament is scheduled for autumn 2009, foresees the extension of this period, from 40 to 60 days, in order to make the repatriations easier, adopting the possibility opened by Directive 2008/115/EC on return. On 19 September 2008, a flight with 101 Gambian immigrants on board who were going to be repatriated to their country of origin had to return to Spain in view of the Gambian


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For these reasons, and as the current Minister of Interior has explained, the Spanish authorities’ assessment is that the complexity of repatriations justifies having recourse to interception in the territorial waters of countries of departure.154 Therefore, Spain does not merely request from countries of origin that they police their own borders in order to stem irregular immigration to Spanish territory, but also that they assist in its attempts to avoid the enforcement of repatriation mechanisms. When dealing with their own nationals, the country of departure will know how to identify them, whereas when they are third country nationals, they will remain under its responsibility too as it is clear that they have tried to leave its territory. At this point, one could ask oneself about the legal safeguards which are applied by Spain’s African partners when they return these people to their countries of origin, an issue which provokes great concern to judge by the presumed violations of human rights committed by some of those countries.155 Nonetheless, this is not the only effect that the extra-territorialisation of migration controls has on the fundamental rights of migrants within the framework of repatriation. Spanish and European pressure has additionally led to the criminalisation of “irregular emigration” in some African countries. For example, Law No. 02/03, enacted by Morocco in November 2003, punishes any person who leaves Moroccan territory in a clandestine manner with a fine of 3,000 to 10,000 dirham and imprisonment of one to six months.156 The migrant himself is therefore criminalised.157 Consequently, maritime interceptions which take place near the departure points mean that the persons arrested in their attempt to emigrate will not always be returned to their countries of origin. They may be convicted and imprisoned, breaching the right to liberty and the right of anyone to leave a country, including his own.

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authorities’ refusal to allow for disembarkation at the airport of Banjul. This occurred despite the fact that the identifications were carried out by a mission sent to Spain by the country of origin and that Gambia has concluded an agreement on migration cooperation in 2006, including the commitment to readmit and the procedures to be followed. Some of the immigrants had to be released as the time limit of 40 days of retention laid down in Spanish legislation had expired: El País, “Gambia rechaza en el aeropuerto una repatriación de inmigrantes”, 20 September 2008. Alfredo Pérez Rubalcaba, “Ministerio del Interior e Inmigración”, in Inmigración, Estado y Derecho, ed. Manuel Balado Ruiz-Gallegos (Barcelona: Bosch, 2008), 76. See, for instance, the APDHA reports on “Derechos Humanos en la Frontera Sur”, 2006, 2007 and 2008, mentioned above note 89. Article 50 of the Loi No. 02-03 relative à l’entrée et au séjour des étrangers, à l’émigration et l’immigration irrégulières, de 11 novembre 2003. According to this provision, the person may be subject to only one of the sanctions or both of them and without prejudice to the applicable provisions of the Criminal Code. For further comments on the Moroccan law, see Mohamed Kachani, supra note 93, 45–51.

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4. Conclusions The extraterritorial strategies put into practice by Spain and other EU Member States to more effectively tackle irregular migration by sea involve the shifting of Schengen borders to places not necessarily coincident with the demarcation lines of their respective territories.158 In the first part of this paper, we have tried to show that joint sea border patrols deployed in territorial waters of third countries constitute the way in which Spain moves its border controls to the countries where migration journeys start, so that vessels are intercepted as near as possible to the points of departure. At the same time, arguing that these controls over persons are performed by the coastal State’s agents although on board Spanish ships, Spain expects to free itself from responsibility with regard to intercepted migrants, their further repatriation and the possible examination of international protection applications. However, pre-border checks should not be used in order to circumvent international and European law obligations incumbent on EU Member States.159 The so called “fight against irregular immigration” seems to be turning into a control of “irregular emigration” with all the implications this may have for the right to leave a country, the legal safeguards applicable during interception, or the right to seek asylum and the “non-refoulement” principle. A major problem, in our view, is that supervision of the conformity of these actions with international rules turns out to be extremely difficult, due to the lack of publication of the arrangements serving as a legal basis of the joint operations at sea160 and the intervention protocols that must be followed by the authorities involved. This leads us to question whether security and migration control constitute legitimate enough interests to undermine the application of the principles of legal certainty, transparency and democratic control to State action abroad.

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As expressed by Elspeth Guild, “In both law and practice the border for the movement of persons to and within Europe is no longer consistent with the edges of the physical territory of the Member States”: Elspeth Guild, “Danger – Borders Under Construction: Assessing the first five years of border policy in an area of freedom, security and justice,” in Freedom, Security and Justice in the European Union. Implementation of the Hague Programme, ed. Jaap de Zwaan and Flora Goudappel (TMC Asser Press, 2006), 45. See in this respect the Meijers Committee comments on pre-border controls and processing of illegal immigrants intercepted at sea: Standing Committee of experts on international immigration, refugees and criminal law, “Proposal for a Regulation establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation 2007/2004 as regards that mechanism”, CM06-14, 24 October 2006, http://www.statewatch.org/news/2006/ oct/meijers-cttee-rabits.pdf (accessed 30 June 2009). With the exception of the agreement on joint maritime surveillance concluded between Spain and Cape Verde commented on above, itself not free from criticism.


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We have also argued that both extraterritorial interceptions and the new technologies at their service have not triggered a real decrease in the need to migrate, but rather a shifting of migration routes and a subsequent greater danger to the lives of migrants. This poses some difficult challenges: how will EU Member States face up to the inadmissible death toll of would-be migrants who try to reach European soil? What about the situation of third countries of transit which are becoming destination countries without being properly prepared to confront with their new status? With these questions, we are not trying to argue in favour of reducing the current degree of border control, which must undoubtedly be preserved. Nevertheless, it is also essential to implement other long-term measures aimed at improving living conditions in countries of origin so that would-be migrants do not feel the necessity to migrate. Although this approach has already penetrated the EU’s and Spanish political discourse, its practical implementation should be given at least the same impetus as the security approach. Furthermore, the conferral of the management of operational cooperation in the EU external borders on the FRONTEX Agency requires greater commitment to the principle of loyal cooperation of Member States with the Community, so that any risk of overlap between bilateral border operations and operations coordinated by FRONTEX, both in third countries’ waters, is avoided. In our view, the effectiveness of the Community response to irregular immigration by sea requires this. Nonetheless, further reflection on the distribution of competences between FRONTEX and EU Member States, and between the latter and the EC, is needed. A possible answer could lie in the proposal to create a European Border Guard, a project which might increase efficiency in operational terms, but whose full implications would need to be thoroughly explored.161 Another field in which we have observed the application by Spain of the concept of extra-territorialisation is that of the criminal pursuit of mafias involved in the smuggling of immigrants. Although the new Organic Law No. 13/2007 adopted by the Spanish Parliament to pursue the persons responsible for vessels intercepted or rescued out of the territorial sea may be deemed to be appropriate, it is not justified that the Spanish courts place themselves as legislators, outside the framework imposed by both international and internal law. It is striking that these same courts do not show the same tendency to extend their competence as regards incidents where Spanish responsibility is questioned because of the presumed infringements of human rights committed beyond its borders.

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The European Pact on Immigration and Asylum, adopted by the European Council of October 2008, agrees that “the possibility of setting up a European system of border guards may be examined” (EU Council, doc. no. 13440/08, 24 September 2008, 9).

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Finally, in addition to the controversies mentioned above, the extraterritorialisation of border controls raises concerns as to the response of the African partners, which conduct questionable repatriations as a result of interceptions in places of departure, or criminalise emigration and immigration in their own legal orders. EU Member States should not close their eyes to the dubious conformity with international human rights law of the practices they are encouraging. It seems clear that cooperation by third countries of origin and transit is essential in order to tackle irregular migration by sea and the tragedies it gives rise to, as well as to fight against the mafias responsible for their increase. Nevertheless, that cooperation must be achieved without calling into question the rule of law and the protection of human rights, some of the fundamental values that the Union has undertaken to promote in its relations with the wider world. Once more, the term “security” of the much pursued area of freedom, security and justice seems to spread with no frontier limitations, whereas freedom and justice and, hence, protection, continue to be confined to territorial boundaries.

Controlling Migration by Sea: The Australian Case Susan Kneebone* Australia’s sons let us rejoice For we are young and free We’ve golden soil and wealth for toil Our lands are girt by sea …1

1. Introduction: policies in context Despite the welcoming words of Australia’s national anthem, ‘Advance Australia Fair’, its large expanse of unprotected shores is a key factor in shaping the history and policy of Australia’s migration and refugee law. In the pre World War II period this was manifested by policies which kept out uninvited immigrants from the neighbouring countries of Asia and the Pacific, and which aimed to ensure that Australia was populated by persons of ‘British’ background.2 In the post World War II period, a strong ‘culture of control’3 in relation to immigrants and refugees developed to prevent unwelcome arrivals. Australia’s exclusionist policy was progressively strengthened in this period through, initially, a system of entry permits, which was replaced in 1989 by a visa regime. All persons seeking to enter Australia must hold a valid visa,4 thus attempting to ensure that the surrounding sea cannot be the means of ‘illegal’ entry. As the focus of this chapter is upon ‘Controlling Migration by Sea’, the emphasis will be upon the ‘boat people’ who have challenged the visa regime

* Thanks to Dr Savitri Taylor for her helpful advice during the preparation of the final version of this chapter, including use of her unpublished paper: “Effective Protection under Australia’s Regional Cooperation Arrangements with Indonesia and PNG: Whose Responsibility?” (unpublished paper presented to workshop of the Institute for International Law and the Humanities, University of Melbourne, 23 February 2007 on Protection Elsewhere: International Law and the off-shore processing and protection of refugees – copy on file with the author). 1 Peter Dodds McCormick, “Advance Australia Fair” (original version, 1878) verse 1. This song became Australia’s official national anthem in 1984. 2 Malcolm Langfield, More People Imperative: Immigration to Australia 1901–39 (Canberra: National Archives of Australia, 1999), 85. 3 Kathryn Cronin, “A Culture of Control: an Overview of Immigration Policy Making”, in The Politics of Australian Immigration, ed. James Jupp and Marie Kabala (Canberra: AGPS, 1993), chapter 5. 4 Some concession is made for New Zealand citizens who can apply for a Special Category Visa on arrival in Australia. Bernard Ryan, Valsamis Mitsilegas, Extraterritorial Immigration Control, pp. 347–374. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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and all that it stands for, namely, the desire to control ‘who shall come to this country and the conditions in which they come’ as previous Prime Minister John Howard so often recited. In practice, a large proportion of those persons will be asylum seekers,5 that is, putative refugees seeking asylum. The right to seek asylum is recognised in the Universal Declaration of Human Rights (‘UDHR’),6 which includes Art. 14, the ‘right to seek and to enjoy in other countries asylum from persecution’. Because it is necessary to process such persons, to enable them to actually ‘seek’ asylum, and because they are often turned back without being processed, it is difficult to know how many of the cohort are refugees7 in fact. Although refugees are as such exceptions to the usual rules of migration and for admission to territory,8 the reality today is that many states view refugees as none other than ordinary migrants. That is, the special status which is accorded to refugees under international law is not respected. In Australia as in other countries, migration law and policy makes little distinction between refugees and migrants. For example, persons who intend to claim asylum in Australia must obtain a valid visa to travel to Australia. In fact, most asylum seekers enter Australia on a valid visa, and subsequently claim asylum. However the story that is told in this chapter is how response to the ‘boat people’ has moved migration control off-shore. By way of introduction it should be explained that, in support of the visa regime, Australia has put off-shore barriers in place to prevent the arrival of non-visa holders and those who are suspected of having obtained their visas through false statements. This is achieved through several methods, which have the potential

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An ‘asylum seeker’ is a person seeking asylum from persecution who has yet to be recognised as a ‘refugee’ as defined in Art. 1A(2) of the Convention relating to the Status of Refugees, Geneva, 28 July 1951, in force 22 April 1954, 1989 UNTS 137 (‘Refugee Convention’) and the Protocol relating to the Status of Refugees, New York, 31 January 1967, in force 4 October 1967, 19 UST 6223, 6257 (‘Refugee Protocol’). But note that the United Nations High Commissioner for Refugees (‘UNHCR’) takes the view that a person who satisfies that definition is a ‘refugee’ without the need for a determination to that effect. This is known as the ‘declaratory’ theory – see UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Geneva: UNHCR, 1979, reedited 1992) (‘UNHCR Handbook’), para. 28. Universal Declaration of Human Rights, Paris, 10 December 1948, GA Res. 217 A (III), UN Doc. A/810. In everyday parlance a ‘refugee’ is a person in flight, a person seeking refuge. However, in international law a ‘refugee’ is a person who comes within the definition in Art. 1A(2) of the Refugee Convention. Michael Walzer, “Membership” in Spheres of Justice: A Defence of Pluralism and Equality (Oxford: Basil Blackwell, 1983), p. 31.

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to impact upon asylum seekers. First, Australian Airline Liaison Officers (ALOs) have been positioned at 16 airports including Jakarta, Johannesburg, Kuala Lumpur,9 which are major gateways to Australia. Because of the universal visa regime, most putative asylum seekers enter Australia on student or visitor visas. Although the purpose of the ALO system is to detect document fraud, this could include preventing putative asylum seekers from travelling to Australia on ‘false’ visas.10 The offshore ALO system is supported by carrier sanctions which appear to have worked as a further deterrent to breaches of the visa regime.11 The main external barrier to ‘unlawful’ entry focuses upon boat arrivals through the prevention of departures and the policing of waters under the Regional Consultative Process known as the ‘Bali Process’. This involves a program of practical cooperation with Indonesia and 40 other Asian and Pacific countries resulting from the Regional Ministerial Conferences on People Smuggling, Trafficking in Persons and Related Transnational Crime first held in Bali in February 2002, and then in April 2003. Arising from this process, on 11 December 2002 Australia signed the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000)12 (the ‘Trafficking Protocol’), which supplements the Convention against Transnational Organised Crime (2002).13 On the 27 May 2004 Australia ratified another relevant supplementary Protocol, namely the Protocol Against the Smuggling of Migrants by Land, Sea and Air.14 In April 2009, in the context of a sharp increase in asylum seeker boat arrivals, Australia, Indonesia and other governments in the region attended the Third Regional Ministerial Conference and re-confirmed their commitment to the Bali Process.15 Thus Australia deals with smuggling of migrants and asylum seekers in the context of combating transnational organised crime and global ‘irregular’ international migration.

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Savitri Taylor, “Offshore Barriers to Asylum Seeker Movement: the Exercise of Power without Responsibility?”, in Forced Migration, Human Rights and Security, ed. Jane McAdam (Oxford: Hart Publishing, 2008), pp. 95–96. Ibid., pp. 97–99. Ibid., pp. 100–101. Doc. A/55/383, Annex II. Doc. A/55/383, adopted by resolution A/RES/55/25 of 15 November 2000 at the fifty-fifth session of the General Assembly of the United Nations. Entered into force on 25 December 2003. Doc. A/55/383, Annex III. A third Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition further emphasizes the transnational organised crime context. http://www.baliprocess.net/index.asp?pageID=2145831461 (accessed 9 November 2009). By 6 May 2009, 11 boats had been detected in Australia’s northern waters. Paul Maley, Paige Taylor, “Rudd faces biggest boatpeople spike since Pacific Solution”, The Australian, 6 May 2009, p. 1.

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The focus of this chapter is upon the policy of excision of off-shore territory, and extra-territorial and off-shore processing which was introduced through the Pacific Plan formulated in 2001. In this chapter, after describing the development of Australia’s national legal policy to refugees, I will turn to the regional context and to an evaluation of extra-territorial and off-shore processing as practised in Australia.

2. Australia and refugees – a history of deterrence of ‘boat people’ Although Australia readily signed up to and actively supported the drafting of the 1951 Refugee Convention,16 it did not distinguish refugee policy from general migration policy until it was confronted by the reality of ‘boat people’ from Indo-China following the fall of the South Vietnamese government in 1975. At that time, Australia was faced with its first refugee crisis, and was forced to act as a country of first asylum. Henceforth, the policy of refugee protection in Australia has been shaped by the issue of ‘boat people’ arriving uninvited on its shores. Australia received many ‘Displaced Persons’ or refugees selected from Europe in the post war period. Through this experience and subsequent involvement in the Comprehensive Plan of Action for Indo-Chinese refugees (CPA) following the fall of the South Vietnamese government in 1975,17 Australia developed a preference for selecting immigrants and refugees from offshore. Following the fall of South Vietnam in 1975, between 1976 and 1978 2,087 Vietnamese asylum seekers arrived in Australia on 55 boats.18 In 1979 there were over 300,000 Indo-Chinese refugees in camps in Southeast Asia.19 By 31 July 1979 Australia had accepted a total of approximately 6,000 of these Indo-Chinese refugees.20 16

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Mary Crock, “The Refugees Convention at 50: Mid-life Crisis or Terminal Inadequacy? An Australian Perspective”, in The Refugees Convention 50 Years On: Globalisation and International Law, ed. Susan Kneebone (Aldershot: Ashgate, 2003), p. 47. Australia acceded to the Refugee Convention in 1954 and to the Protocol relating to the Status of Refugees in 1973. See Susan Kneebone and Sharon Pickering, “Australia and the Pacific Region”, in New Regionalism and Asylum Seekers: Challenges Ahead, ed. Susan Kneebone and Felicity Rawlings-Sanaei (Berghahn Books, 2007), pp. 167–187. Mary Crock, Immigration and Refugee Law in Australia (Leichardt: Federation Press, 1998) 127. Those who were not accepted as refugees during this period were permitted to remain in Australia pursuant to an amnesty for ‘illegal immigrants’ in 1980. Barry York, “Australia and Refugees, 1901–2002: Annotated Chronology Based on Official Sources: Summary” (Department of the Parliamentary Library, Chronology No. 2 2002–03, 16 June 2003) at p. 10. Andreas Schloenhardt, “Australia and the Boat-People: 25 Years of Unauthorised arrivals”, University of NSW Law Journal 23 (2000): 33 at 36.


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On 24 May 1977 during the height of the Indo-China refugee crisis, the Australian government had articulated a refugee policy for the first time.21 Importantly one of the key principles was that: ‘The decision to accept refugees must always remain with the Government of Australia’.22 In 1982 in line with its selection orientated approach, the Australian government reached an agreement with the government of Vietnam for an Orderly Departure Program23 (ODP) based on family reunification, and set up a system of individual assessment of refugee claims. By 1986, 100,000 Indo-Chinese refugees had been admitted to Australia, most under the ODP directly from Vietnam, under which the government gave priority to those with family already settled in Australia. Then in June 1989, Australia endorsed the Comprehensive Plan of Action for Indo-Chinese refugees (CPA) which was agreed upon in Geneva by the UNHCR, countries of first asylum and 50 resettlement countries in the West, following a renewed surge in Vietnamese departures in the 1987–88 period, including Australia as a destination country.24 Under the CPA more than 18,000 Vietnamese were resettled in Australia from camps in South-East Asia. Thus the CPA reinforced the trend to selective resettlement, and the distinction between ‘onshore’ and ‘offshore’ refugees which persists in Australian refugee policy today. However, the CPA did not stop the flow of boat people. In the 1990s, Australia’s legal response towards refugees developed around three policies which were specifically intended to deter asylum seekers who arrived spontaneously on Australia’s shores. They were the mandatory detention policy, the linking of the onshore and the offshore ‘quotas’ under the Humanitarian Program, and the introduction of the Temporary Protection Visa (TPV) regime. In 1992 the Australian government introduced the first of the deterrence measures with the mandatory detention regime, by way of the addition of Division 4C (‘Detention of unlawful non-citizens’) to the Migration Act 1958. Despite challenges to its constitutionality, it was upheld as a valid exercise of Executive power, as a system of administrative ‘non-punitive’ detention which applied to all ‘unlawful non-citizens’, which in practical terms meant ‘boat

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York p. 9 referring to the statement by the Hon. Michael Mackellar MP, the then Minister for Immigration and Ethnic Affairs. Ibid. The ODP arose from the International Conference on Refugees and Displaced Persons in Southeast Asia held in Geneva, 20–21 July 1979 and attended by 65 countries. Pursuant to this agreement, countries in the region agreed to provide ‘first asylum’, third countries (Western) agreed to accelerate the rate of resettlement and Vietnam undertook to promote orderly departures. UNHCR agreed to supervise the ODP. UNHCR, The State of the World’s Refugees 2000: Fifty Years of Humanitarian Action, chapter 4: “Flight from Indochina” (Oxford University Press, 2000).

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people’ who arrived without a valid visa.25 By contrast, ‘lawful non-citizens’ (that is, those who arrived with a valid visa, typically by air, and subsequently claim asylum) were not detained and were able to live in the community so long as they held a valid visa. The next measure was the shaping of the Humanitarian Program which had been introduced into government policy in the 1970s. This programme, which received official recognition in 1996, is one part of Australia’s Migration Program26 which in the 1990s hovered around an annual intake of 100,000. Between 1996 and 2003 the number of available places was capped at 12,000 with 10,000 notionally allocated for offshore resettlement and 2,000 for onshore asylum seekers. The offshore program was directed at two categories of persons: – The Refugee component for those who meet the Refugee Convention definition of a ‘refugee’ and; – The Special Humanitarian (SHP) component for persons subject to ‘substantial discrimination’ or human rights abuse. Very roughly, in most years until the late 1990s when the outpouring of asylum seekers from Afghanistan ‘tested the waters’, the offshore program was shared almost equally between these two components and any unmet places were rolled over. Some years (in fact most) the targets were not met. There was a dramatic escalation in the number of boat arrivals in the 18 month period leading up to early 2001.27 This is indicated by the statistics which show that in the 1998–99 period 926 boat people arrivals were detained, but in 1999– 2000 the figure was 4,174. This was a reflection of the deterioration of conditions in the Middle East, in particular Iraq and Afghanistan, at that time. The third plank of the policy of deterrence against boat people was the introduction of the Temporary Protection Visa (TPV) regime under which those found to be in need of protection as Convention refugees were granted three year temporary visas which carried limited rights.28 Under this policy only ‘lawful non-citizens’ (that is, those who arrived in Australia on a valid visa) could acquire a permanent protection visa. These TPV holders were recognised refugees,

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On 29 July 2008 the newly elected Rudd government announced New Directions in Detention policy which has modified this policy, but as related in this chapter, boat arrivals who arrive in excised territory will be taken to Christmas Island for initial detention and processing. The other part being titled simply ‘The Migration Stream’ which in turn is made up of categories such as Skilled Migration and Family Reunion. Adrienne Millbank, “The Detention of Boat People” (Parliamentary Library, February 2001) available at http://www.aph.gov.au/library/pubs/CIB/2000-01/01cib08.htm (accessed 9 November 2009). See Susan Kneebone, “The Pacific Plan: the Provision of ‘Effective Protection’?”, International Journal of Refugee Law 18 (2006): 696–721.


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‘lawfully staying’ in Australian territory, and yet they were denied many of the rights guaranteed by the Refugee Convention. These included the right to housing (Art. 21), public relief (Art. 23), social security (Art. 24) and travel documents (Art. 28). Moreover TPV holders were denied the basic right to family reunion (the right to a family life: ICCPR, Art. 23), and were treated unequally and discriminated against in relation to other (resettled) migrants under the Humanitarian Program. Although the TPV regime was discriminatory towards the ‘boat arrival’ asylum seekers (who were classed as ‘unlawful non-citizens’ under the Migration Act), and imposed penalties and denied rights provided by the Refugee Convention,29 it remained in place despite strong critiques from both the national and international communities, until May 2008, when the newly elected Rudd Labor government announced that the policy would be abandoned (see below).

3. The regional context: arrangements with Indonesia Australia receives asylum seekers from all parts of the world but the greatest number is from the People’s Republic of China. Generally, the largest proportion is made up by those who arrive by air on a visa, and subsequently claim asylum or simply overstay their visa. However, as explained above, policy towards asylum seekers has been shaped by the ‘boat people’, including the mandatory detention policy. In the period leading up to 2001, the number of boat arrivals escalated in response to the conflicts in Afghanistan and the Middle East and the proportion of asylum seekers arriving by air in relation to boat people was reversed. For this cohort of people, the ‘boat people’, Australia’s neighbour Indonesia played a key role. This section of the chapter describes the role of Indonesia in dealing with this ‘refugee crisis’ and the importance of Australia’s relationship with Indonesia. For those coming from the Middle East and from Pakistan and Afghanistan, the common trajectory of asylum seekers is to travel by air to Malaysia and Indonesia30 and then onward to Australia.31 For those originating in Afghanistan and Iraq, countries of transit have initially been Pakistan, Turkey, Syria and Saudi 29 30

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Refugee Convention, Arts. 3 and 31. See Kneebone, International Journal of Refugee Law, op. cit. Department of Immigration and Multicultural Affairs (‘DIMIA’) Fact Sheet 73. People Smuggling http://www.immi.gov.au/media/fact-sheets/73smuggling.htm and DIMIA Fact Sheet 74a Boat Arrival Details (on Australian Mainland) http://www.sievx.com/articles/psdp/ DIMIA74a_boatarrivals.pdf (both accessed 9 November 2009). In April 2009 evidence emerged that boats were leaving from Surabaya on Java, but other asylum seekers from Sri Lanka were coming by other routes: Tom Arup and Tom Allard, “Another boat arrives, and eight on its way”, The Age, 23 April 2009, p. 1. Malaysia is used as a staging post for asylum seekers from Sri Lanka: Brendan Nicholson, Jewel Topsfield and Tom Allard, “Mission aims to stem flow of asylum seekers”, The Age, 25 April 2009, p. 7.

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Arabia with Yemen and Oman being countries of secondary transit, some have then sought to move through Malaysia, others through South Africa and then finally most embark on the final leg of their journey from Indonesia. In fact it has been estimated that about 85 percent of unauthorised arrivals (‘boat people’) have come to Australia via Indonesia.32 Until 1997 most boat arrivals sought to reach mainland Australia directly, however in 1997 there began a trend to target Australia’s northern islands – mainly Ashmore Reef and Christmas Island which lie closer to Indonesia than to Australia.33 Christmas Island, which is where boat arrivals are processed under the Rudd Labor government’s policy, is 380 km south of Java, but 2600 km northwest of Perth, or four and a half hours by air. Australia had put in place a ‘Regional Co-operation Model’ with Indonesia in 2000, which was later formalised by the International Organisation for Migration (IOM) through the ‘Bali Process’ as mentioned earlier this chapter. The focus of this process is on prevention of people smuggling and disruption of departures to Australia from Indonesia.34 In the period leading up to September 2001 when Australia formally obtained the cooperation of Indonesia in the interception of ‘unauthorised migrants’, the Indonesian authorities had apprehended around 1,500 people attempting to reach Australia.35 At the first Regional Ministerial Conference held in Bali 26–28 February 2002, Australia stated that over 6,000 people had been smuggled into Australia by boat between 2000 and 2002. Indonesia has recently been described as the ‘historical’ ‘gateway’ to Australia for people smuggling.36 The AFP has reported that in cooperation with Indonesian authorities, its AFP International Network has prevented ‘a number of peoplesmuggling ventures based in Indonesia’.37

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Savitri Taylor, “Effective Prot ection under Australia’s Regional Cooperation Arrangements with Indonesia and PNG: Whose Responsibility?”, unpublished paper presented to workshop of the Institute for International Law and the Humanities, University of Melbourne, 23 February 2007 on Protection Elsewhere: International Law and the off-shore processing and protection of refugees (copy on file with the author), p. 6, citing Peter Mares, Borderline: Australia’s Response to Refugees and Asylum Seekers in the Wake of Tampa, 2nd ed (Sydney: University of NSW Press, 2002), pp. 238–239. However, there is some evidence that operations are moving east to Timor – see Paul Toohey, “Tamils cheated by smugglers”, The Australian, 22 October 2008, p. 5. DIMIA, Fact Sheet 74a, n. 30, above. See Co-Chairs’ Statement issued at Third Ministerial Conference on People Smuggling, Trafficking In Persons and Related Transnational Crime, Bali, Indonesia, 14–15 April 2009 available at http://www.baliprocess.net/index.asp?pageID=2145831461 (accessed 9 November 2009). Peter Mares, “Moving The Barriers Off-Shore: Cooperation with Indonesia reduces the number of ‘boat people’ arriving on Australia’s shores”, Rantau (ed. 2) September 2001, p. 10. Australian Federal Police, Annual Report 2007–08, p. 26. Ibid. See also The Age, 4 November 2008, p. 2 “Illegal Immigration: Boat intercepted”.


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In addition to the policing arrangements with Indonesia for the interception of irregular migrants, an arrangement was entered into between Australia, Indonesia and IOM for the care of such persons within Indonesia.38 Upon encountering unauthorised migrants Indonesian officials detain them (in local police stations or ‘quarantine’ centres) and are then responsible for contacting IOM. IOM’s role is to provide an initial assessment to irregular migrants who wish to claim asylum and advise them of their options, one of which is voluntary return to their country of origin or a transit country. If a fear of return is expressed, IOM is obliged to contact the UNHCR, who will then process the asylum seeker’s claim and register such person as a refugee as appropriate. Refugees must then await resettlement in Australia or another country by UNHCR. Pursuant to this arrangement, intercepted persons are provided with accommodation, food and emergency medical assistance by IOM at Australia’s expense. However, the ability of this cooperative arrangement to provide protection to asylum seekers is questionable, as the provision of temporary refuge is entirely dependent upon UNHCR and IOM, organisations which do not have the same legal accountability as a sovereign state and which rely upon cooperation from Indonesian authorities. Although Indonesia is not a signatory to the Refugee Convention,39 and despite its own massive internal problems, it has been willing to co-operate with the UNHCR in relation to the maintenance and processing of asylum seekers. At the time of the Tampa episode described below, in 2001 Indonesia was coping with its own internal refugee problem of 1.3 million people, and 4 million ‘shanty dwellers’ living in poverty. It was also hosting an estimated 4,000 asylum seekers mainly from Middle Eastern countries. According to IOM, by May 2006 it had assisted a total of 2,843 irregular immigrants in Indonesia since the commencement of the regional cooperation arrangement. Until recently, the number of persons seeking asylum in Indonesia had fallen steadily. In 2006, the figure was 414; in 2007 it was 278 and in 2008 230 persons sought asylum in Indonesia.40 However, in April 2009, in response to conflicts in Sri Lanka and Pakistan, and in line with global trends, there was a sharp increase in the number of asylum seekers attempting to reach Australia by 38

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See Taylor unpublished paper, above, who describes the arrangement as ‘unwritten’ and ‘semiformal’. Taylor cites in particular IOM Indonesia, Irregular Migrants Assistance Program. Indonesia is however party to the International Covenant on Civil and Political Rights, New York, 16 December 1966, in force 23 March 1976, UN Doc. A/6316 (1966), 999 UNTS 171 (‘ICCPR’) and the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, in force 26 June 1987, UN Doc. A/39/51 (1984), 1465 UNTS 85 (‘CAT’) which contain complementary protection against torture and degrading treatment. Paul Maley, “Low asylum figures for Indonesia belie ‘new wave of boatpeople’ claim”, The Age, 6 October 2008, p. 4.

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boat from Indonesia. In the first four months of 2009, there were 263 arrivals, mainly from Indonesia. These arrivals represent only a proportion of asylum seekers currently in Indonesia. The ability of UNHCR to process asylum seekers in Indonesia is limited by resources,41 and resettlement is slow as the number of places available globally is limited. Australia has a prioritised quota for resettlement places,42 and does not process asylum seekers directly from Indonesia. Many asylum seekers therefore chose to travel on to Australia by boat to try their chance there, instead of waiting in Indonesia and facing an uncertain future. These facts are essential background to Australia’s response at sea, including the MV Tampa incident described in the next section.

4. The MV Tampa incident and the formation of the Pacific Plan – policy made at sea Australia’s Pacific Plan was a seemingly ad hoc response to the arrival of the Norwegian registered container ship, the MV Tampa with a cargo of 433 asylum seekers in the waters off Australia’s Christmas Island in late August 2001. In fact, it was a deliberate and calculated denial of the right to seek asylum which was directly modelled on the USA Caribbean Plan.43 Furthermore, it was a continuation of a policy of discouraging asylum seekers on Australian shores which began with the 1989 Comprehensive Plan of Action for Indo-Chinese refugees (CPA). The Pacific Plan was conceived as a way of deterring and punishing asylum seekers who arrive spontaneously. The implementation of the Pacific Plan was through naval and military invention. The lasting images of this episode are of navy boats rescuing ‘children overboard’, and of the SAS storming the MV Tampa boat. The rhetoric and legal reasoning in the litigation that followed was about ‘border control’ or ‘protection’ and ‘enemy aliens’.44

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Stephen Fitzpatrick, “Surabaya starting point for voyage”, The Australian, 21 April, 2009, p. 6. Australia will only take a proportion of refugees from Indonesia. It is difficult to find statistics but in 2001 out of 389 refugees resettled by UNHCR from Indonesia, Australia took 41, New Zealand 65 and Canada 70: Human Rights Watch, ‘By Invitation Only’: Australian Asylum Policy, Australia Vol. 14 No. 10(C) December 2002. Nathan Hancock, “Refugee Law – Recent Developments” (Parliamentary Library, September 2001) at http://www.aph.gov.au/library/pubs/cib/2001-02/02cib05.htm (accessed 9 November 2009). Ruddock v. Vadarlis (2001) 110 FCR 491 (‘Vadarlis’) reversing Victorian Council for Civil Liberties Incorporated v. Minister for Immigration (North J) (2001) 110 FCR 452.


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The timing of the Tampa incident – in the last weeks of the 2nd term of office of the Howard Liberal government – was not a mere coincidence. As the leader of the Opposition queried during the election campaign following the incident – why was it that the Australian government suddenly decided to take a very tough stance in relation to the 137th boat which made the journey across the sea from Indonesia in a 12 month period, having allowed the other 136 to land in Australian territory (from which the asylum seekers were flown to detention camps on the mainland for processing)? No explanation emerged during evidence given in the subsequent Tampa litigation, except the admission that the government was determined not to allow the Tampa asylum seekers to come into the ‘migration zone’ as defined under the Migration Act (which at that time included Christmas Island) to enable them to invoke the protection obligations which Australia owes under the Refugee Convention, which meant in practical terms, the right to apply for a protection visa under section 36 of Australia’s Migration Act.45 Clearly the government was determined to show the electorate that they were determined to take a tough stance on boat arrivals, as the ‘season’ was in full swing.46 As one cartoonist cynically portrayed there might have been 433 human beings on the MV Tampa but they represented millions of votes to the Howard government. Coincidentally at this time there was considerable antiMuslim sentiment in the community.47 By 2001 the vast majority of arrivals were from Afghanistan, Iraq and Iran. During the litigation which followed to gain the release of the Tampa asylum seekers, the government announced on the 31st August 2001 that it had reached agreement with the governments of New Zealand and Nauru48 “for the processing of the people rescued by the MV Tampa.” The statement, read to the court by the Solicitor-General continued: Under the terms of the agreement, the rescuees will be conveyed to Nauru and New Zealand for initial processing. New Zealand has agreed to process 150 of those aboard the Tampa. It is envisaged that this will include family groups

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Migration Act, s. 36 provides for the granting of ‘protection visas’. This is the form in which Australia’s obligations under the 1951 Refugee Convention and 1967 Protocol are implemented. It was common knowledge that many asylum seekers waited in Indonesia for a boat passage to Australia and that such journeys had to be carried out before the onset of the monsoon season. Adrienne Millbank, “The Problem with the 1951 Refugee Convention” (Parliamentary Library, September 2000), available at http://www.aph.gov.au/library/pubs/rp/2000-01/01RP05.htm (accessed 9 November 2009). Nauru is a former Australian protectorate which was granted independence in 1975. However, it is very dependent on Australian aid and benefited financially from its participation in the Pacific Plan. It is located in the South Pacific, almost midway between Australia and Hawaii.

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involving women and children. Those found to be genuine refugees in New Zealand would remain there. The remainder of the rescuees will be assessed in Nauru and those assessed as having valid claims from Nauru would have access to Australia and other countries willing to share in the settlement of those with valid claims. Australia will bear the full cost of Nauru’s involvement in this exercise. Arrangements will be made to safely tranship the rescuees through a third country. We are currently in discussions with appropriate countries to effect this. We are also working closely with the International Organisation for Migration and the UNHCR to ensure that these arrangements are managed carefully and that the rescuees receive appropriate counselling and assistance. Australia will continue to ensure that the rescuees receive all necessary humanitarian assistance while these arrangements are put in place.…

On 11 October 2001, Australia signed a second agreement or Memorandum of Understanding (MoU) with Papua New Guinea, to build a detention facility on their territory, that was to accommodate asylum seekers for six months or ‘as short a time as is reasonably necessary’ to process their claims.49 The detention centre was established on 21 October 2001, at the Lombrum Naval Base, a former World War II air and naval staging point on the equatorial and malarial Manus Island, 350 kilometres from the Papua New Guinean mainland.50 Taking advantage of the atmosphere of crisis which it had created through the Tampa incident, the government rushed through a swag of legislation.51 First, it legislated to excise certain remote islands, including Christmas Island, from Australia’s ‘migration zone’, so as to prevent the making of valid applications for visas52 in those places (where there had been ‘boat arrivals’ from Indonesia in recent years). Then in a dubious use of the notion of ‘effective protection’, it provided that asylum seekers were to be taken to a ‘safe third country’ for processing.53 New Zealand, Nauru and Papua New Guinea were subsequently named as

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Oxfam/Community Aid Abroad, Adrift in the Pacific: The Implications of Australia’s Pacific Refugee Solution, 6 February 2002; Department of The Parliamentary Library, Protecting Australia’s Borders, Research Note 2003–04, No 22, 24 November 2003, 1. DIMIA, “Offshore Processing Arrangements”, Fact Sheet 76, http://www.immi.gov.au/facts/ 76offshore.htm (previously accessed, 27 February 2004). See Nathan Hancock, “Refugee Law – Recent Developments”, n. 43, above. On 26 September 2001 two Acts were passed, the Migration Amendment (Excision from Migration Zone) Act 2001; and the Migration Amendment (excision from Migration Zone) (Consequential Provisions) Act 2001. The amendments excised Christmas Island, Ashmore Reef, the Cocos (Keeling) Islands, and offshore sea and resource installations from Australian territory from the ‘migration zone’ under the Migration Act. The Minister for Immigration may declare that a particular country (i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and (ii) provides protection for persons seeking asylum, pending determination of their refugee status; and


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such safe ‘declared countries’ under the Pacific Plan legislation and arrangements.54 By virtue of Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act, a new category of person known as an ‘offshore entry person’ was created. Under this legislation, an asylum seeker who arrives in an ‘excised zone’ is prohibited from bringing legal proceedings challenging their ‘entry, status, detention and transfer’.55 Further an offshore entry person is prohibited from applying for a protection visa in Australia, unless the Minister for Immigration personally grants permission.56 Moreover, the ‘safety net’ provision in section 417 of the Migration Act, the so called humanitarian discretion which is conferred on the Minister, is not available for those whose applications failed. Such persons are thus at risk of refoulement. Simultaneously, the government also legislated to create wider ‘border protection’ powers by granting greater interdiction powers including the power to intercept, turn-around, search and detain asylum seekers who were attempting to enter Australia without authorisation. Additionally, parallel to the excision measures, legislation introduced two new categories of temporary entry visas (TEVs); one for people intercepted en route to Australia (that is, ‘boat people’) and the other for ‘offshore entry persons’ who arrive in excised territory (that is, those who actually succeeded in landing on Australian excised territory). Both these visas were intended to deter and punish ‘secondary movers’. Visa subclass 451, known as the Secondary Movement Relocation visa, applied to asylum seekers who moved from a ‘safe first country of asylum’ (such as Indonesia). Visa subclass 447, known as the Secondary Movement Offshore Entry visa, applied to persons taken to offshore processing places under the offshore program. Moreover, the new visas were processed under the offshore Special Humanitarian (SHP) component of the Humanitarian Program, rather than as onshore protection (refugee) visas. This was consistent

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(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and (iv) meets relevant human rights standards in providing that protection. (Migration Act, s. 46A(2) ). Nauru and Papua New Guinea were declared to be ‘safe third countries’ by virtue of the Memorandums of Understanding (MoUs) discussed in the text. As has been pointed out these declarations were made after the putative refugees were transferred to the ‘safe country’ and without any individual consideration of whether such country was indeed ‘safe’: Angus Francis, “Bringing Protection Home: Healing the Schism Between International Obligations and National Safeguards Created by Extraterritorial Processing” International Journal of Refugee Law (2008): 273, 279–280, 286–290. The MoUs with Nauru and Papua New Guinea were signed after other Pacific nations had rejected Australia’s ‘offer’, eg Tuvalu, Kiribati, Fiji and East Timor. Migration Act, s. 494AA. Migration Act, s. 46A.

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with the Australian government’s determination not to recognise the rights of these people under the Refugee Convention. However, those who stayed in a country of first asylum (such as Indonesia) and who were resettled under the offshore program were entitled to permanent visas. Fact Sheet 65 dated 19 July 2002 stated that: The new humanitarian visa system is designed to encourage asylum seekers to remain in their country of first asylum, rather than seeking the assistance of people smugglers to abandon or by-pass effective protection in order to obtain a preferred migration outcome.

The number of persons held under the Pacific Plan peaked in February 2002 at 1,550. This included people taken from the MV Tampa, the Aceng and several other boats intercepted during the naval Operation Relex in the weeks following the Tampa incident. During this period the SIEV X (‘Suspected Illegal Entry Vessel Number 10’) incident occurred, in which more than 300 asylum seekers (including women and children) drowned, as well as the now infamous ‘children overboard’ affair.57 There was also evidence of ‘push backs’ to Indonesia in this period. The most publicised of these latter incidents was that involving the Minasa Bone. In November 2003, the small Indonesian fishing vessel, the Minasa Bone, containing fourteen Kurdish Turkish asylum seekers, was only the second boat to be detected entering Australian waters since the Tampa crisis.58 But the reaction to the incident was swift. The boat was returned to Indonesia after the asylum seekers had set foot on the Australian territory of Melville Island only 80 kilometres from the Australian mainland.59 After some debate, the government conceded that all the men had tried to claim asylum in Australia before being towed back to sea.60 The fact that the Australian government ordered the asylum seekers to be towed back to the high seas to return to Indonesia, rather than ordering that they be brought to shore to be processed in Australia, and that they did not apprehend the Indonesian fishermen to question them about people smuggling syndicates and operations, made clear the Government’s principle objective to maintain ‘border control’ at any cost. 57

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This refers to the SIEV 4 incident in October 2001 when it was announced by the then Minister for Immigration that asylum seekers on an intercepted boat had threatened to throw their children overboard to avoid interception. In fact the vessel was sinking and passengers who entered the water as it sank were rescued by the crew on the navy vessel HMAS Adelaide. This was an example of deliberate manipulation of public opinion at the time which was later revealed as misrepresentation in a Senate Select Committee, Report on a Certain Maritime Incident (2002). Ibid. Editor, “Another case of truth overboard?”, The Age, 15 November 2003. Mark Forbes, Meaghan Shaw, “Kurds did seek asylum: Vanstone”, The Age, 14 November 2003, p. 1.


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In 2002 the government had unsuccessfully attempted to excise further islands. However, this was prevented by an unfavourable report on the Bill.61 But in November 2003, the Government was able to rush through regulations to retrospectively excise almost 4,000 islands from Australia’s migration zone62 to prevent access to Australia’s asylum procedures by the fourteen Kurdish Turks, whose boat was detected earlier that month near Melville Island, north of Darwin.63 The number of unauthorised boat arrivals to Australian territory decreased dramatically after 2002. In the report of the Department of Immigration, Managing the Border: Immigration Compliance 2003–2004 edition, it was stated that in that 12 month period there were only 82 unauthorised boat arrivals on three boats. The government claimed that it had solved the ‘boat people’ problem, but meanwhile many were still languishing on Nauru under the Pacific Plan. It was originally intended that the 1,550 asylum seekers on Nauru and Manus Island would be processed within six months of their arrival. But this did not happen. The processing was painfully, seemingly deliberately slow as the government waited for the situations in the countries of origin to stabilise, presumably so that the asylum seekers could be returned home. As at 7 February 2003, 329 persons processed under the Pacific Strategy, with family in Australia had been granted temporary protection in Australia,64 352 had been resettled in New Zealand, 15 in Sweden, 6 in Denmark and 8 in Canada.65 As at November 2003, 411 ‘failed asylum seekers’ had accepted the ‘voluntary return package’ and a small number of others had returned to their country of origin. However, resettlement countries were hesitant to accept refugees from Nauru and Manus Island, arguing that they were Australia’s responsibility. As of 19 February 2004, Nauru still held 277 asylum seekers including 93 children,66 while just one asylum seeker remained at the Manus Island detention centre.67

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Migration Legislation Amendment (Further Border Protection Measures) Bill 2002. See Legal and Constitutional References Committee, Migration Zone Excision: An examination of the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 and related matters (Canberra: Senate Report, October 2002). The regulations were subsequently disallowed but in August 2005, the government finally succeeded in excising thousands more islands from Australia’s migration zone – see UNity News 430, 5 August 2005, para. [4]. Meaghan Shaw (with AAP), “Islands excised to head off boat”, The Age, 5 November 2003, p. 1. Department of The Parliamentary Library, “Protecting Australia’s Borders”, Research Note No 22, 24 November 2003, p. 1. DIMIA, Fact Sheet 76 “Offshore Processing Arrangements”, n. 53, above. James Button, “Shadowlands”, The Age, 3 January 2004, p. 11. Meaghan Shaw, “Nauru, Manus detention centres cost $170m”, The Age, 18 February 2004, p. 4. Mr Sisalem was finally granted a visa in May 2004.

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In December 2003 under pressure from the UNHCR the government had agreed to review the cases of Afghan asylum seekers on Nauru and on re-processing 168 out of 197 were found to be refugees. Media reports for 2004 recorded the gradually processing of these claims. As at December 2004 there were still 54 asylum seekers remaining on Nauru. Following a very well orchestrated publicity campaign about their plight, a large Afghan family group was released. Four years later, in late August 2005 there were still 30 asylum seekers remaining on Nauru.68 Overall, the DIMIA Fact Sheet 76 dated May 2005 reported that 65.5% of the Pacific Plan asylum seekers were eventually resettled (although unofficial sources suggest a higher percentage). In summary, of this number Australia accepted 58% and New Zealand 38%. A small proportion, as noted above went to other countries including Sweden. From 2005 the government scaled back the Pacific Plan, and instead sent intercepted asylum seekers to the remote Australian territory of Christmas Island.69

5. Evaluation of Australia’s extraterritorial processing under the Pacific Plan The motivations for the Pacific Plan were clearly to deter the spontaneous arrival of asylum seekers on Australia’s coastline and off-shore islands. This was a continuation of the general policy of deterrence which had shaped responses to boat people in the context of the CPA. A new aspect of the policy of deterrence in the Pacific Plan was the punishment of ‘secondary movements’, as noted above.70 Overall, the Pacific Plan was intended to deny asylum seekers access to Australia’s legal system which includes the right to independent merits review and rights of judicial review. These policies were clearly aimed at preventing asylum seekers from exercising their right to seek asylum. They arguably breached provisions of the Refugee Convention, including freedom from detention and penalties (Art. 31)71 and non-discrimination on the basis of mode of arrival (Art. 3).72 The policy of 68 69

70 71

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The Age, 26 August 2005, p. 4. Christmas Island is part of Australian territory although it has been excised for the ‘migration zone’ for the purpose of the Migration Act as is explained in the text above. Thus processing on Christmas Island can be described as ‘offshore’ rather than ‘extraterritorial’. Kneebone, International Journal of Refugee Law, op cit. Susan Kneebone, “The Legal and Ethical Implications of Extra-territorial Processing of Asylum Seekers: the “Safe Third Country” Concept”, in Forced Migration, Human Rights and Security, ed Jane McAdam (Oxford: Hart Publishing, 2008). Art. 3 prevents discrimination on the basis of race, religion or country of origin; arguably these measures directed at persons arriving from Indonesia discriminated on the basis of mode of


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preventing secondary movements was based on a misreading of the right to seek asylum.73 There is also, as described above, clear evidence of ‘push backs’ and return of interdicted asylum seekers to Indonesia. Although the Australian government at that time maintained that return to Indonesia is not refoulement, this is disputed. Indonesia is not a party to the Refugee Convention, and the threat of chain or indirect refoulement is real. Further although the Australian government treats Indonesia as a country of first asylum, there is evidence that it is not ‘safe’ because of the risk of refoulement and conditions in Indonesia.74 The issue that is considered here is whether, apart from the issues referred to above, the extra-territorial processing of asylum seekers under the Pacific Plan complied with relevant standards. First, it is necessary to identify those standards. As is well known, the purpose of the Refugee Convention is to define refugees and their rights. It does not prescribe procedures; these are at the discretion of states. But Art. 16 which requires that all refugees be accorded ‘free access to the courts of law on the territory of all Contracting States’ presupposes that procedures are available to refugees. The purpose of this provision was to recognise the importance of (literally, ‘free’) access to a legal system, to ensure that refugees should have unimpeded access to such for all relevant claims.75 This provision is consistent with the general right of individuals to have their rights respected by State Parties in whose jurisdiction or territory they find themselves (ICCPR Art.2), which includes the ‘right to an effective remedy’ (UDHR Art.8, ICCPR Art.2.3a). As persons intercepted under the Pacific Plan were either under Australia’s control or jurisdiction by virtue of the act of interception, or in some cases actually on Australian territory (even if excised under national law),76 they were clearly persons to whom Australia should have granted access to its courts. The ICCPR, Art.14 is sometimes referred to as the overarching measure for procedural standards in this context, together with the UDHR Art.10. These international human rights standards entitle ‘all persons’ to a fair and public hearing by an independent and impartial ‘tribunal’. This is consistent with

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arrival. The scope of this anti-discrimination provision is extended by other provisions in international human rights law: Kneebone, International Journal of Refugee Law, op. cit. Kneebone, “The Legal and Ethical Implications of Extra-territorial Processing of Asylum Seekers” above. Tara Magner, “A Less Than “Pacific” Solution for Asylum Seekers in Australia”, International Journal of Refugee Law 16 (2004): 53 at 67. James C. Hathaway, The Rights of Refugees Under International Law (Cambridge: Cambridge University Press, 2005), p. 647. Jane McAdam and Kate Purcell, “Refugee Protection in the Howard Years: Obstructing the Right to Seek Asylum”, The Australian Yearbook of International Law 27 (2009): 87 at 95.

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common law principles of natural justice.77 Hathaway argues additionally that if Art.16(1) is read together with Art.14 ICCPR it guarantees a refugee a right of judicial appeal to challenge the legality of the decision.78 The context of refugee status determination suggests that the highest procedural standards are important to guard against constructive refoulement, that is, refoulement arising indirectly from a failure to be given an adequate hearing. The need to establish a credible ‘well founded fear’ of being persecuted under the Refugee Convention definition (Art.1A(2) ) is onerous as it involves assessment of the evidence to determine whether there is an objective, prospective fear of persecution. The UNHCR Handbook paras. 195–205 recognises the complexity of this task.79 The Handbook refers to the shared burden of proof between the applicant and the examiner,80 and to the examiner’s responsibility to assess the validity of the evidence and the credibility of the applicant’s statements. It also refers to the need for the applicant to be accorded the benefit of the doubt ‘when all the available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility’.81 As is stated in para. 202: Since the examiner’s conclusion … and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding ….

UNHCR has suggested that other core standards should be met to ensure a fair hearing: the right to review before an independent body, a right to legal assistance and representation and access to independent interpreters to enable the asylum seeker to present the case, followed reasons for decision and the opportunity for consideration of complementary protection (protection against refoulement).82 It is clear that the Pacific Plan did not meet these standards.

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80 81 82

Hathaway, The Rights of Refugees, 906; Susan Kneebone, “Natural Justice and Non-Citizens: A Matter of Integrity?”, Melbourne University Law Review 26 (2002): 355–380. Hathaway, The Rights of Refugees, pp. 647–656. Cecile Rousseau, Francois Crepeau, Patricia Foxen and France Houle, “The Complexity of Determining Refugeehood: A Multidisciplinary Analysis …”, Journal of Refugee Studies 15 (2002): 43; Brian Gorlick, “Common Burdens and Standards: Legal Elements in Assessing Claims to Refugee Status”, International Journal of Refugee Law 15 (2003): 357. UNHCR Handbook, para. 196. Ibid., para. 204. UNHCR, Global Consultations on International Protection, 2nd meeting, “Asylum Processes (Fair and Efficient Asylum Processes)”, EC/GC/01/12, 31 May 2001, paras. 43, 45–6, 50 cited by Angus Francis, “Bringing Protection Home: Healing the Schism Between International Obligations and National Safeguards Created by Extraterritorial Processing” International Journal of Refugee Law 20 (2008) 278, n. 27.


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The UNHCR initially agreed to process asylum seekers from the MV Tampa and the Aceng, delivered by the HMAS Manoora to Nauru, on the basis that they were ‘rescuees’, but subsequently refused to process any other applicants on Nauru or Manus Island in protest at Australia’s policy. Ellen Hansen, UNHCR spokesperson, said: Ultimately protection of refugees is a state responsibility and a country like Australia which has a very sophisticated and well-developed system of refugee status determination is, we believe, the most appropriate process to be made available to these people.83

The process which the Australian government then adopted was said to be modelled upon UNHCR procedures (which have themselves been critiqued).84 Australian Department of Immigration officials were sent to Nauru to determine refugee status acting under departmental guidelines. This was done by relying almost wholly on oral submissions which involved exploring the grounds for protection and disclosing any potentially adverse inferences before a decision was made.85 However there was no right to legal representation, as lawyers were repeatedly denied access to potential clients and Australian lawyers were denied visas to travel to Nauru. This appeared to be in breach of the right to legal representation in Art. 5(2) of the Nauruan Constitution. The process was purely administrative and internal. In the case of a negative determination, the decision could be reconsidered by a senior departmental officer. Asylum seekers under the Pacific Plan were excluded, as stated above, from accessing the procedures on mainland Australia, even though Australia appeared to have assumed responsibility for the fate of the asylum seekers. Importantly under the Australian administrative procedures, there was no right to an external review. Although Nauru had control over the asylum seekers whilst on Nauru and indeed had issued visas to them,86 they were denied access to the island’s legal system to process their claims for refugee status.87 The process thus appeared to operate within no national legal framework and arguably had no authoritative basis.88 Asylum seekers under the Pacific Plan had ‘no recourse under any national law, for any alleged error by an official – even a decision that might be grossly unreasonable.’89 83 84

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86 87 88 89

Oxfam, Adrift in the Pacific, p. 15. Michael Kagan, “The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination”, International Journal of Refugee Law 18 (2006) 1. Human Rights Watch (HRW), n. 42 above, p. 71. The procedures were set out in DIMIA guidelines. Kneebone, International Journal of Refugee Law, op. cit. Note: Nauru is not a party to the Refugee Convention. HRW, above. HRW, above at 65.

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On 10 December 2003 a group of asylum seekers on Nauru went on a hunger strike that lasted for one month. The asylum seekers, many who had come to Nauru on the Tampa two years earlier, were staging a protest to have their cases reviewed but this time with ‘access to legal representatives and appropriate ethnic interpreters’.90 A key complaint in this incident was the quality of processing of the claims. This protest was indicative of the disquiet at the processing of asylum claims, which indicates that the possibility of constructive refoulement through processing errors was real. These arrangements clearly breached Art. 16 of the Refugee Convention (access to the courts of the Contracting State – in this case Australia) which applies to all refugees. Further, Art. 25 of the Refugee Convention requires that ‘normal’ administrative assistance be provided to refugees residing in the territory of a Contracting State. Although Nauru is not a party to the Refugee Convention, its Solicitor-General had given assurances in the MoU with Nauru that the asylum seekers would be provided with the necessary ‘counselling and assistance’. This situation illustrates the anomalous legal status of the interdicted asylum seekers. By contrast with an ‘offshore entry person’, an asylum seeker in a mainland detention centre has the right to request access to ‘reasonable facilities’ and ‘legal advice’ in order to apply for a visa.91 Thus can be seen the ambiguous legal status and position of asylum seekers on Nauru and the extent to which they were discriminated.

6. Response to the Pacific Plan As stated above, the Pacific Plan was gradually scaled back in the 2003–05 period as the remaining asylum seekers on Nauru and Manus Island were gradually processed. During this period, other boat arrivals were either pushed back (as in the 2003 Minasa Bone incident) or intercepted and taken to the excised territory of Christmas Island for processing as offshore entry persons. In late 2003 a boat load of 53 Vietnamese nationals was interdicted in Australian waters off Port Hedland in northern Western Australia. Subsequently 43 West Papuan asylum seekers reached Australia’s north Queensland shore. Although both groups were technically entitled to be processed under Australia’s on-shore processes and legislation, they were taken to Christmas Island. Prime Minister John Howard justified this (arguably illegal) action on the basis that the government ran ‘the risk of

90 91

Meaghan Shaw, “Protesters unstitch their lips”, The Age, 9 January 2004, p. 3. Migration Act, s. 256.


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sending a message to the rest of the world that it was still possible to get to the Australian mainland’.92 In March 2006 the Department of Immigration decided to grant protection (refugee) visas to 42 out of the 43 West Papuans who had travelled by sea from West Papua. The incident had caused strong protests from the Indonesian government which resulted in the Indonesian government withdrawing its ambassador.93 In April 2006 then Prime Minister John Howard attempted to further extend measures to keep asylum seekers from accessing the Australian legal system with the introduction of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006. The purpose of this Bill was to introduce new measures that would mean that all unauthorised boat arrivals would be transferred to offshore or extraterritorial processing centres (such as Nauru) for assessment of their refugee claims. The Bill went further than all other measures to date. It meant that all unauthorised boat arrivals (‘designated unauthorised arrivals’) arriving in any Australian territory would come under the Pacific Plan.94 Moreover, the whole of the Australian mainland coast would be excised territory. But that was not the only legal fiction or ‘Orwellian doublespeak’ as one Member of Parliament described.95 The Explanatory Memorandum elaborated: The Bill will also deem certain air arrivals to be entry by sea so the persons will be subject to the new regime. Persons who travel most of the way to Australia by sea but travel the last leg by air, before entering (on or after 13 April 2006) and who become unlawful on entry, will be taken to have entered Australia by sea. These are basically situations where persons are airlifted into Australia at the end of their sea journey.96

The Bill was a response to the decision to grant asylum to the West Papuans asylum seekers and was intended to deter others from making claims which compromised Australia’s foreign relationships. Teresa Gambaro MP, Parliamentary Secretary for Immigration and Citizenship said: It is necessary to prevent Australia from being used as a staging post for political protests. In other words, this Bill will act to protect Australia’s sovereignty, not diminish it.97

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Cited by Savitri Taylor, “Sovereign Power at the Border”, Public Law Review 16 (2005): 55 at 67, fn. 106. Mike Steketee, “The Vanstone Wiggle”, The Australian, 27 May 2006, p. 20. Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, Explanatory Memorandum, para. 2. Peter Andren, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 Second Reading Speech (Canberra: House of Representatives, 8 August 2006). Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, Explanatory Memorandum, para. 3. Teresa Gambaro, Summing up Speech, (Canberra: House of Representatives, 10 August 2006).

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The opposition and negative response to the Bill was dramatic. Ten rebel Coalition government MPs threatened to cross the floor. There was widespread opposition to the Bill from NGOs and the community. Coalition government MP Petro Georgiou, who is a prime advocate for refugee rights in Australia, referred to the Bill as ‘the most profoundly disturbing piece of legislation I have encountered since becoming a member of parliament’. Referring to changing public perceptions, he said: Public attitudes shifted. Australians who had once accepted the [mandatory detention] policy as being necessary came to see that it was cruel and wrong.98

The debate on the Bill made it clear that the Members were well informed about the Pacific Plan and profoundly disturbed by its effects. A Senate Committee which was convened to investigate the Bill recommended that the Bill should not proceed. It noted that: With the exception of the Department of Immigration and Multicultural Affairs (Department), all of the 136 submissions and witnesses appearing before the committee expressed complete opposition to the Bill … .99

Particular concerns that the Senate Report highlighted were process issues – denial of natural justice, plus the absence of independent merits and judicial review mechanisms.100 Concerns were also expressed about the nature and quality of offshore processing.101 On 22 June 2006 the Prime Minister said that the Bill would be redrafted and reintroduced. This was not done. In high dudgeon, the then government subsequently transferred any intercepted asylum seekers who were being held on Christmas Island to Nauru. In March 2007 eighty-three Sri Lankans were transferred to Nauru. They joined eight Burmese asylum seekers held on Nauru since August 2006. The government threatened the asylum seekers with removal to Indonesia and Malaysia. In April 2007 the government entered into a reciprocal agreement with the USA for the exchange of asylum seekers from Nauru with those from the USA processing facility in Guantanamo Bay. There was discussion of a new ‘Atlantic Solution’.102 However the Howard Coalition government was 98

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Petro Georgiou, Debate on the Migration Amendment (Designated Unauthorised Arrivals) Bill, (Canberra: House of Representatives, 9 August 2006). Senate Legal and Constitutional Legislation Committee, Provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (Canberra: LCLC, June 2006), para. 3.1. Ibid., para. 3.13. Ibid., paras. 3.140–141. Those people who were to be sent to the United States under the refugee swap have now come to Australia. Brendan Nicholson, “Refugee Status Given to Burmese”, The Age, 10 December 2007, p. 5.


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defeated in the election of late November 2007 and a new Labor government took office under the leadership of Kevin Rudd. One of its first steps was to abolish the Pacific Plan by bringing the remaining refugees held on Nauru to Australia.103 A second step announced by the new government in May 2008 to implement that decision was to abolish the TPV regime (including the temporary Humanitarian visas) and to introduce a new Resolution of Status visa (‘RoS’) from August 2008 for the remaining TPV holders.104 The new government expressly recognised that the TPV regime had not had the deterrent effect which was intended. In principle, the RoS visa granted all the same rights as apply to permanent protection visa holders. The government stated its commitment to treating asylum seekers ‘fairly and with dignity’.105 That is, effectively it acknowledged the failure of the policy of the previous government.106 However, as explained in the next section, there are concerns that the continuation of the excision policy and legislation, coupled with the use of Christmas Island as a detention facility has led to the creation of an ‘Indian Ocean Solution’.

7. Sequel – ‘non-statutory processing’ on Christmas Island The story about Controlling Migration by Sea continues. Although the Rudd Labour government has discontinued the use of Nauru and Manus Island and effectively dismantled the Pacific Solution, the excision legislation remains in place.107 Christmas Island in currently in use as an ‘Australian detention facility’108 and the off-shore processing centre for all persons who come within the 103

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In February 2008 the last of the refugees, a group of 21 Sri Lankans, were granted permanent protection visas and resettled in Australia: Andrea Jackson, “Last refugees bid farewell to Nauru – Government closes book on Howard’s Pacific Solution”, The Age, 6 February 2008, p. 8. See also, Senator Chris Evans, Minister for Immigration, “Opening Statement to the Senate Standing Committee on Legal and Constitutional Affairs”, Canberra, 19 February 2008, p. 22. See http://www.immi.gov.au/media/fact-sheets/68tpv_further.htm (accessed 9 November 2009). Ibid. Interestingly, in the debate over the flurry of boat arrivals in April 2009, the public and many of the Opposition generally opposed the reintroduction of the TPV regime. The Minister in his speech of 29 July 2008 referred to below said that “no decision has been taken on the boundaries of the current excision policy”. Changes to Australia’s contentious detention policy were announced on 29th July 2008 by the new Minister for Immigration, Senator Chris Evans – see http://www.minister.immi .gov.au/media/speeches/2008/ce080729.htm (accessed 9 November 2009). Subsequently the government closed a number of on-shore remote detention facilities, such as the Baxter Detention Centre in Port Augusta, and Port Hedland in Western Australian. However it retains Christmas Island as part of Australia’s immigration detention network.

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scope of the 2001 Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act. That is, there are two avenues for claiming asylum from the Australian government – one for on-shore arrivals who have the right to apply for a protection visa under Australian law (which guarantees a right to independent review, and judicial review) and the other which takes place on the remote Christmas Island and which is referred to as ‘non-statutory refugee status assessment’.109 The current situation on Christmas Island is characterised by discretionary procedures. For example, although persons taken there are ‘offshore entry persons’ who are prohibited from applying for a protection visa in Australia, unless the Minister for Immigration personally grants permission,110 the minister appears to be exercising his discretion under section 46A of the Migration Act to consider applications for such visas. In October 2008, there were 26 Afghan and Iranian asylum seekers on Christmas Island who were intercepted on several boats which departed from Indonesia.111 According to reports, these arrivals were permitted to apply for protection visas. This policy appears to have continued. A more recent report states that since September 2008, 138 asylum seekers on Christmas Island have been granted protection visas and resettled in Australia.112 However, the ability to make such applications is dependent on the minister’s discretion and is not available as of right, in contrast to ‘mainland’ arrivals. But, current indications are that the ‘non-statutory’ offshore processing in place on Christmas Island is of a higher standard than that which operated on Nauru under the Pacific Plan. According to the government: Publicly-funded advice and assistance for asylum seekers is being provided on Christmas Island through the existing contract arrangements between the Australian Government and ten agencies employing professional migration agents, under the Immigration Advice and Application Assistance Scheme (IAAAS). This is the same kind and quality of independent advice and applications assistance that is afforded to protection visa applicants onshore and ensures no disadvantage to asylum seekers on Christmas Island when compared with those Protection applicants on the mainland.113

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Department of Immigration and Citizenship, “Response to Australian Human Rights Commission’s Immigration Detention Report 2008” (‘DIAC Response’), p. 43. It is stated: “The continued use of Christmas Island for the non-statutory processing and accommodation of people who arrive unauthorised at excised offshore places is a matter of Government policy”. Migration Act, s. 46A. Dale Miller and Giovanni Torre, “Boatload of refugees arrives off WA coast”, The Age, 7 October, 2008, p. 3. Paige Taylor, “New arrivals have no right to asylum”, The Australian, 26 April 2009. DIAC Response, p. 44.


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Although those processed on Christmas Island do not have access to the mainland legal review system, the government says that: DIAC has established interim arrangements for independent merits review and is currently working through the development of a longer term review model.114

Currently the Commonwealth Ombudsman has an ‘oversight role’ for the nonstatutory refugee status assessment.115 Thus processing on Christmas Island is a ‘work in progress’ but there are concerns both due to its non-statutory status and the isolated location of this Australian community.116 The minister’s speech of 29th July 2008 ruled out access to the Australian courts.117 At this point it is unclear if and when the government will legislate and what procedures will apply on Christmas Island. In particular it is unclear whether the same or similar problems that arose under the Pacific Plan when asylum seekers were processed by the Department of Immigration under internal regulations will arise in relation to Christmas Island. There are concerns about the ongoing practical ability of asylum seekers on Christmas Island to access legal advice and interpreters. There are concerns about the competency and independence of the proposed internal review mechanism and about the proposal to give the role of external scrutiny to the Immigration Ombudsman. The role of an Ombudsman is to make recommendations on administrative matters, not to adjudicate upon the status of an individual. This is a matter which is only appropriate for a specialised judicial or quasi-judicial body. Another fact which has emerged from the recent arrivals is that different processing (onshore or offshore) will apply according to the method of arrival. For example, on the 16th April 2009 there was on an explosion on SIEV 36 when it was intercepted by the Australian navy on Ashmore Reef. Five persons were killed in that incident and a number of injured were flown to the mainland. After some uncertainty as to the status of these people, it was announced by the Department of Immigration that they would be processed as ‘mainland arrivals’ although they had been intercepted offshore.118 On the other hand, a group of asylum seekers from the same boat who, after the incident, were taken to an oil

114 115 116

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Ibid. Ibid. Christmas Island has a largely Chinese and Malay population which was brought to the island in the late 1880s to work the phosphate mine which is still the main raison d’etre for the island. Paige Taylor, “Boatpeople ‘not testing’ Labor rules”, The Australian, 3 October 2008, p. 5. Migration Act, s. 46B creates an exceptional class of ‘transitory persons’ who are not permitted to make claims for protection visas. This provision might have been applied to these persons; thus this decision is another example of a softer government policy to asylum seekers.

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rig which is on territory which has been excised from Australia’s migration zone will be processed on Christmas Island under the ‘non-statutory process’.119 As stated above, Art. 16 of the Refugee Convention requires that all refugees be accorded ‘free access to the courts of law on the territory’ of Contracting States. As Christmas Island is excised territory for the purpose of the Migration Act, it is arguably inappropriate to provide a process there beyond the preliminary ‘screening’ stage. Further, the process discriminates against asylum seekers according to the method and place of arrival; those intercepted and evacuated for medical reasons and those who arrive legally (with a visa) on mainland Australian territory are processed in accordance with the provisions of the Migration Act. This last group comprises the majority of asylum seekers in Australia. But those who by chance land in excised territory will be subject to a different non-statutory process in an extremely remote location, where despite assurances, it will be difficult to obtain the same ‘services’ as are available on the mainland. Such discrimination is inconsistent with the Refugee Convention.

8. Conclusion – lessons from Australia’s experience This Australian case study shows how a large island continent surrounded by sea can utilise a visa regime to manage its migration policy. In relation to asylum seekers, it shows how a focus on ‘boat people’ can distort a nation’s perception of its obligations under the Refugee Convention. In particular, it shows the problems that arise when policies based upon deterrence, including prevention of ‘secondary movements’ are implemented by compromising high procedural standards. It demonstrates the difficulty of reconciling refugee rights and extraterritorial and off-shore processing. It seems that asylum seekers subject to extraterritorial processing are situated in a legal black-hole in which it is unclear what legal system applies, whereas those who are subject to off-shore processing are discriminated against in relation to ‘on-shore’ asylum seekers. Further, their ‘rights’ are defined in policy and guidelines which give them only precarious protection. The Australian case shows the problems which arise when refugees are denied access to courts in contravention of Art.16 of the Refugee Convention, and access to the legal system of a Contracting State. This study shows that it is really not possible to compromise standards and to guard against refoulement at the same time. The standards which have been identified above as essential to a fair hearing are the right to review before an independent body, a right to legal

119

Lindsay Murdoch, “Oil rig asylum seekers ineligible”, The Age, 22 April 2009, p. 1.


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assistance and representation and access to independent interpreters to enable the asylum seeker to present the case, followed reasons for decision and the opportunity for consideration of complementary protection (protection against refoulement). This study shows above all that states cannot shirk their responsibility to asylum seekers by parking them in extra-territorial and off-shore processing facilities to deter them from arriving spontaneously or to play out a tough government policy. The answer is not to put the ‘problem’, literally out of sight, but to confront it at home with better and efficient processes.

Postscript (January 2010) The issue of ‘boat people’ is rarely absent in the Australian media, but in late September 2009 it escalated to near Tampa proportions with news of two boatloads of Sri Lankan asylum seekers detected en route to Australia from Indonesia. The handling of these incidents has been dubbed the ‘Indonesian Solution’, but as a solution it appears to be fragile. There has been an increased outflow of Sri Lankan Tamil asylum seekers in the region following the cessation of hostilities in Sri Lanka in mid 2009. It has been claimed that Australian-funded surveillance at Colombo airport is responsible for the large outflow of Sri Lankan asylum seekers by boat over the past 6 months.120 The first boat, the Jaya Lestari 5 with 255 Sri Lankans was returned on 11 October 2009 to the Indonesian port of Merak following a direct arrangement between Australia’s Prime Minister and the Indonesian President. As of 26 January 2010 the asylum seekers remain in Merak port and continue to refuse to leave the ship to enter Indonesia. In an interview in mid October 2009, the Prime Minister referred to the fact that this was one of 81 ‘separate disruptions’ of departing boats in partnership with our Indonesian friends’.121 The second boatload of 78 Sri Lankan asylum seekers was rescued on 17 October 2009 by the Australian Customs Ship Oceanic Viking and taken to Bintan Island for processing in an Australian funded detention centre. This move led to a diplomatic incident: the local authorities would not allow the asylum seekers to disembark and the asylum seekers refused to disembark until given assurances that their claims for refugee status and resettlement would be processed swiftly. After

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Matt Wade, ‘Australian-funded cameras linked to rise in boat people’, The Age, 28 October 2009. Paul Kelly, ‘Rudd’s Softer Stance Mugged by Reality’, Weekend Australian, 17–18 October 2009, p. 11.

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a stalemate of some weeks the asylum seekers were disembarked and were processed rapidly amidst outcries of favoured treatment. Although most were resettled in Australia a small percentage were taken by other countries. The Oceanic Viking incident in particular led to political turmoil for Prime Minister Rudd. Meanwhile, the number of boat people arriving in Australian waters has increased to the extent that Christmas Island is now at 95% capacity. During 2009, 2727 boat people arrived in Australian waters.122 In a repeat of the Pacific Solution, this situation has led to riots amongst detainees and tension with the local community. The off-shore processing on Christmas Island has been dubbed the ‘Indian Ocean Solution’. Despite admissions by the Minister for Immigration that it would be cheaper to process asylum seekers on the mainland, the situation is unchanged. The Indian Ocean Solution is a facade to maintain an appearance of border control by a government which is over-mindful of public opinion.

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Editorial comment, The Age, 7 January 2010 p. 10.

US Migrant Interdiction Practices in International and Territorial Waters Niels Frenzen 1. Introduction The US experienced several distinct migratory events in the 1980s and again in the 1990s where large numbers of migrants, primarily Cubans and Haitians, sought to enter the US by sea. Tens of thousands of Cuban balseros and Haitian boat people succeeded in reaching the US, usually landing in the State of Florida. This chapter reviews the history of these migrant flows and describes the changing nature of the flows. Against this backdrop, it reviews the US responses to the early mass flows and describes how the varying responses evolved into the present day migrant interdiction programme. It describes the key US court decisions and Government policies pertaining to the interdiction programme and the resulting changes in position by the US Government regarding its legal obligations towards interdicted migrants under international and domestic refugee laws. The chapter reveals the relationship, most pronounced in the early years of the interdiction programme, between the nationality of the interdicted migrants and the level of protection afforded to the migrants, as well as the relationship between the size of a migrant flow and the level of protection afforded to interdicted migrants. It concludes with a description of the current interdiction programme and a description of how the programme is applied to present day migrant flows, which have changed both in the nationalities of the migrants and in having a wider geographic scope.

2. Origins of the US interdiction programme Expulsion of Haitians from the Bahamas In 1978, the Bahamian Government began to expel large numbers of Haitians. The deportations extended not only to recently arrived Haitians, but also to more established Haitians who had lived and worked in the Bahamas for more than a decade.1 Fearing forcible return to Haiti, thousands of Haitians fled the Bahamas for Florida.

1

“The Haitians are Coming,” Time Magazine, August 7, 1978.


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As the numbers of Haitians reaching South Florida by small boat increased, the US Immigration and Naturalization Service (‘INS’) initially considered the possibility of intercepting Haitian boats at sea and detaining interdicted Haitians at the US Naval Base at Guantanamo Bay, Cuba. The INS decided it did not have the capacity to carry out such an operation and instead formulated a plan, known as the “Haitian Program,” to process the Haitians as they arrived on the US mainland.2 The INS Haitian Program consisted of special processing procedures applied only to Haitian nationals and was designed to accomplish their expulsion from the US regardless of the level of risk that might await them upon deportation to Haiti.3 Of the 4,000 plus Haitians subjected to the Haitian Program not a single one was granted asylum. Mariel Boatlift The Haitian Program ended as the influx of Haitians from the Bahamas ended. But the US quickly faced a significantly larger migration crisis emanating from Cuba, the so-called Mariel Boatlift. Between 20 April and 26 September 1980, over 125,000 Cubans left the Cuban port city of Mariel and sailed in small boats to the US. One of the boatlift’s triggering factors was the occupation of the Peruvian Embassy in Havana by thousands of Cubans seeking asylum within the embassy grounds.4 In response to this and other incidents, Fidel Castro announced that any Cuban who wanted to leave Cuba could do so, but had to depart the country from Mariel. The Cuban Government released a statement informing Cuban-Americans they were free to travel by boat to the port of Mariel

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While Guantanamo was not used as a place of detention for Haitians leaving the Bahamas at this time, it had already been used at this early date to detain small numbers of Haitians encountered by the Coast Guard at sea. Haitian Refugee Center v Civiletti [1980] 503 F.Supp. 442, 484, 515 (SD Fla). Haitian Refugee Center v Civiletti [1980] 503 F.Supp. 442 (SD Fla). There were several causes of the larger crisis between the US and Cuba which led to the boatlift. Among them was the US delay in processing refugee applications within Cuba made by Cuban political prisoners who had received permission to depart Cuba. Cuba viewed the processing delays as an effort by the US to maintain an element of instability within Cuba. Cuba was also upset with the increased number of Cuban vessels highjacked in Cuban territorial waters and taken to the US where on arrival the US would not criminally prosecute the highjackers but would instead grant them legal status. Cuba’s Vice President complained to the US State Department: “You turn away people everyday at the [US Interests Section in Havana] when they apply for entry documents, but if they enter illegally you greet them with open arms”: David Engstrom, Presidential Decision Making Adrift (Lanham, Maryland: Rowman & Littlefield Publishers, 1997), pp. 48–49.

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to pick up relatives and friends. Within days of the Cuban Government announcement over 1,000 boats sailed from the US to Mariel. Upon arrival in Mariel, the Cuban government compelled many of the US boats to transport people chosen by Cuban authorities. Cuba took advantage of the exodus to expel large numbers of criminals and others considered by Cuban authorities as undesirable. The US response to the boatlift was muddled. The Coast Guard made halfhearted efforts to block boats from departing the US for Cuba and the State Department attempted, without success, to negotiate an orderly departure programme with the Cuban Government. The US also made statements that suggested it did not intend to interfere with the boatlift. Early in the first month of the boatlift, President Jimmy Carter said Cubans would be greeted in the US “with open hearts and open arms.”5 In the end, the US took no decisive steps to prevent boats from leaving or returning to the US. The decision to end the boatlift was made by Cuba. Cuba ended the boatlift on 26 September 1980 when Cuban authorities ordered all of the US boats then present in the Mariel harbour to depart without passengers. The 125,000 Mariel Cubans who arrived in the US were detained upon arrival and transported to hastily prepared processing camps throughout the US where they were subjected to health and criminal history screening before being resettled. While the resettlement process was not well handled, the overwhelming majority of the Mariel Cubans were resettled and granted legal status.

3. The initial interdiction programme, 1981–1991 New Haitian influx In May 1981 a new and significant surge began in the number of Haitian boat people arriving in the US. The total number was small compared to the Mariel boatlift, but unlike the Haitian surge a few years earlier, most of the newly arriving Haitians were fleeing directly from Haiti. The new Administration of Ronald Reagan, which had taken office in January 1981, responded quickly. The US ordered the detention of all newly arriving Haitians and opened detention facilities at several locations on the US mainland and in Puerto Rico.6

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16 Weekly Comp. Pres. Doc. 834–35 (5 May 1980). This was the first time the US implemented a nationality-based detention practice – Haitian legal advocates also characterised this as a race-based practice – in an immigration enforcement context. The US of course practised nationality and national origin-based detention during

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The surge in Haitians was caused by deteriorating political and human rights conditions in Haiti which were linked partially to Reagan coming to power. Reagan won the US presidential election six months earlier, defeating President Jimmy Carter. Carter had, with mixed results, made human rights an important component of US foreign policy. Carter’s election loss signalled a new harsher US foreign policy and this, coupled with Reagan’s stated desire to support non-communist authoritarian regimes, emboldened Haitian dictator Duvalier to arrest, kill, or expel real and perceived political opponents.7 First interdiction programme On 29 September 1981, Reagan implemented a new initiative to stop Haitian migrants from entering the US by sea. A proclamation declared illegal migration by sea to be a serious national problem detrimental to US national interests and that henceforth the entry of undocumented aliens would be prevented by interdiction.8 Reagan directed the Secretary of State to enter into cooperative agreements with “appropriate foreign governments” to secure the necessary permission for the Coast Guard to stop and board foreign flagged vessels in international waters. The Coast Guard was ordered to begin interdicting vessels as soon as these agreements could be finalised.9 Neither the text of the presidential proclamation nor the supplemental orders to the State Department or Coast Guard referred directly to Haiti. However, a few days before the issuance of the presidential orders, Haiti, in an exchange of diplomatic notes with the US, authorised US military ships to stop and board Haitian vessels in international waters.10 The Coast Guard was now authorised to interdict US flagged vessels, unflagged vessels, and vessels from any country with which the US had an agreement suspected of carrying unauthorised migrants. If the Coast Guard determined that a vessel’s passengers lacked the necessary documentation that would permit them to enter the US, the Coast Guard was to return the vessel and its passengers to their country of origin.11

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World War II when Japanese immigrants and US citizens of Japanese descent were detained in internment camps. Michel-Rolph Trouillot, Haiti: State Against Nation – The Origins and Legacy of Duvalierism (New York: Monthly Review Press, 1990), p. 218 n. 1; Mark Danner, “Beyond the Mountains – III,” New Yorker, December 11, 1989, 100. Presidential Proclamation No 4865 (29 September 1981). Executive Order No 12324 (29 September 1981). Agreement Affected by Exchange of Notes Between American Ambassador to Haiti and Haitian Secretary of State for Foreign Affairs, Port-au-Prince (23 September 1981) 33 UST 3359. Executive Order No 12324 (29 September 1981).


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The President’s orders included a prohibition on returning a refugee to a country of feared persecution. The Coast Guard and the INS developed screening procedures to implement this aspect of the directive. INS officers were placed on Coast Guard vessels and when a suspect vessel was interdicted, if the commander of the Coast Guard vessel believed it safe to do so, INS officials would interview each person on board the interdicted vessel to determine name, nationality, and reasons for leaving Haiti. If the INS official determined that an interdicted person possessed a bona fide claim to refugee status, that person was to be transported to the US and permitted to make a formal claim for asylum.12 Those without bona fide claims were to be returned to Haiti. Haitian advocacy organisations commenced a legal action challenging the adequacy of the refugee screening procedures on board Coast Guard ships arguing, among other claims, a violation of Article 3, the anti-discrimination provision, of the UN Convention Relating to the Status of Refugees because the interdiction procedures applied only to Haitians.13 The lower court rejected the challenge because it concluded that US refugee laws applied only to persons present within US territory or persons at a border seeking entry and rejected the claim that the UN Protocol was violated because such international agreements were not selfexecuting under US law.14 On appeal, the Court of Appeals determined that the Haitian advocacy organisations which had commenced the case could not raise claims on behalf of interdicted Haitians who themselves were not before the court. In dismissing the case, the appellate court said “although the human crisis is compelling, there is no solution to be found in a judicial remedy.”15 While the advocates lost the challenge, outside of the legal proceeding, the US Government took the position that Article 33’s non-refoulement provisions did apply when the Coast Guard interdicted Haitians in international waters. The head of the INS testified before Congress in 1981 that the interdiction programme was conducted in a manner so as to ensure proper compliance with the UN Protocol.16 Eight years later in 1989 another high-ranking INS official informed Congress that the US, in carrying out the interdiction programme, was strictly observing its international obligations under the UN Protocol.17 Clearly, 12 13 14 15 16

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Haitian Refugee Center v Gracey [1987] 809 F.2d 794, 797 (DC Cir). Haitian Refugee Center v Gracey [1985] 600 F.Supp. 1396, 1401 (D DC). Id. at 1404. Haitian Refugee Center v Gracey [1987] 809 F.2d 794, 841 (DC Cir). Testimony of Acting INS Commissioner Doris Meissner, Asylum Adjudication: Hearings Before the Subcommittee on Immigration and Refugee Policy, Senate Judiciary Committee, 97th Congress, 1st Session 21–22 (1981). Testimony of Deputy INS Commissioner James Buck, Haitian Detention and Interdiction: Hearings Before the Subcommittee on Immigration, Refugees, and International Law, Senate Judiciary Committee, 101st Congress, 1st Session 28 (1989).

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throughout the early years of the interdiction programme, the US took the position that it was bound by Article 33; though the Government also consistently took the position that no court had jurisdiction to review the adequacy of the shipboard screening procedures on Coast Guard ships because the interdiction and screening took place in international waters outside of US territory. The Haitian advocacy organisations’ concerns that shipboard screening procedures were inadequate or not implemented in good faith were well founded. Between October 1981, when the Haitian interdiction programme began, and March 1991, when substantial changes were made to the shipboard screening procedures, approximately 23,000 Haitians were interdicted by the Coast Guard. Of the 23,000 interdicted, only eight Haitians were found to have bona fide refugee claims and brought to the US to pursue asylum claims.18

4. Modified interdiction practices, 1991–1995 Enhanced shipboard screening procedures Haiti’s Duvalier dictatorship ended in February 1986 after popular protests forced Jean Claude Duvalier to flee to France. For the next five years Haiti was ruled by a series of military and civilian juntas. A presidential election was conducted in 1990 and leftist priest Jean-Bertrand Aristide was elected. Aristide was sworn in as Haitian president on 7 February 1991, the fifth anniversary of Duvalier’s overthrow, and diplomatic tensions with the US began almost immediately. Within several weeks of Aristide assuming the presidency, the Coast Guard and INS implemented changes in the shipboard refugee screening procedures that had been in effect for the previous decade. The INS decided to lengthen the screening interviews of interdicted Haitians from approximately four minutes to thirty minutes per individual.19 The decision to expand protections presumably tracked US government concerns that the new leftist government would fail to respect human rights. Over the first six months of their use, the new procedures resulted in twenty Haitians being identified as having potential refugee claims.20 18

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Statement of Cheryl Little, Executive Director, Florida Immigrant Advocacy Center, before the Senate Judiciary Committee Subcommittee on Immigration (17 December 1997), http://www .nchr.org/rmp/archive/clittle.htm (accessed 9 October 2009). US Coast Guard Telex (13 March 1991), http://www.cod.edu/people/faculty/yearman/FOIA/ haitianrefugees/INS_interview_change.pdf (accessed 9 October 2009). Statement of Cheryl Little, Executive Director, Florida Immigrant Advocacy Center, before the Senate Judiciary Committee Subcommittee On Immigration (17 December 1997), http://www .nchr.org/rmp/archive/clittle.htm (accessed 9 October 2009).


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This number, twenty in six months, contrasted sharply with the eight Haitians found to have potential refugee claims during the previous decade when Haiti was ruled by Duvalier and a succession of military juntas. Shipboard safe haven The Aristide government was overthrown on 30 September 1991 in a coup d’état led by Haitian Army officers. A large number of Haitians again began fleeing Haiti by boat. During the first several weeks after the coup, the Coast Guard continued to interdict and screen Haitians for refugee claims. However, as the scale of human rights violations and violence in Haiti became apparent, President George H.W. Bush ordered that no Haitian was to be returned to Haiti. The interdiction programme continued, but Haitians found not to have bona fide refugee claims were held on board Coast Guard ships. The US State Department approached Jamaica, the Bahamas, the Dominican Republic, Belize, Venezuela, Honduras, and Suriname, among other countries, and asked if they would provide temporary safe haven to the growing number of interdicted Haitians who had been found not to have refugee claims. The Bahamas and the Dominican Republic refused because they were already receiving Haitians directly fleeing into their territory. Honduras, Venezuela, and Belize agreed in principle to accept limited numbers of Haitians for temporary safe haven.21 While the search for third countries was underway, the numbers of Haitians on board Coast Guard ships grew, but the US continued to refuse to disembark within the US the Haitians who it had determined did not have bona fide refugee claims. The smaller number of Haitians found to possess bona fide claims were disembarked and detained at Guantanamo. Resumption of forced returns for screened-out Haitians Within six weeks of the military coup, there were almost 2,000 screenedout Haitians on board Coast Guard ships and another 500 screened-in Haitians who had been taken to Guantanamo. On 18 November 1991, the US Government announced that the Coast Guard could no longer continue to maintain growing numbers of Haitians on board its ships and therefore repatriations of the screened-out Haitians would resume. The State Department said: “We fear that any action by the United States to bring large numbers of Haitians

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Lizette Alvarez, “US to Ask Other Nations to House Haitian Refugees,” Miami Herald, November 8, 1991, 6; Christopher Marquis, “US Seeks to Divert Influx of Haitians,” Miami Herald, November 9, 1991, 18; Paul Anderson, “3 Latin Nations Will Shelter Haiti Refugees,” Miami Herald, November 15, 1991, 1.

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without claim to asylum to the United States would bring a massive outflow [of additional boat people from Haiti] resulting in large numbers of deaths on the high seas.”22 Haitian advocates in Miami commenced a new court challenge and succeeded in securing a temporary halt to the forced repatriation of the screened-out Haitians. The court took note of the UNHCR’s position that the Article 33 nonrefoulement principle applied extraterritorially and took note of Reagan’s original 1981 orders establishing the interdiction programme which instructed the INS and Coast Guard to fairly enforce US laws and to ensure the “strict observance of [US] international obligations concerning those who genuinely flee persecution.”23 On 17 December 1991, a Court of Appeals ended the temporary injunction which had stopped the forced repatriations, again concluding that US law did not obligate the Government to comply with Article 33 when acting outside of US territory in international waters or in Guantanamo.24 The advocates sought to appeal to the Supreme Court. In opposing the appeal, the Government informed the Supreme Court that even though not legally obligated to do so, the Government would continue to implement the interdiction programme as it had since its 1981 inception: Haitians would be interdicted and screened for bona fide refugee claims; those with bona fide claims would be allowed to seek asylum in the US and those without claims would be returned to Haiti. The Supreme Court issued an order on 24 February 1992 refusing to hear the Haitians’ appeal. Five days later, the Government announced that it would re-interview those Haitians still detained at Guantanamo who had previously been found to have bona fide refugee claims, to determine whether the previous favourable decisions had been proper. Most of the screened-in Haitians detained at Guantanamo at this time were there because they were HIV positive and the Government was hesitant to bring them to the US.25 Many of the re-screened Haitians with HIV were found not to have credible claims and were forcibly returned to Haiti. Summary return of Haitians: suspension of shipboard screening In May 1992 there was a new and massive surge in the number of Haitians fleeing Haiti. During the first three weeks of May over 10,000 Haitians were

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Howard French, “US Starts to Return Haitians Who Fled Nation After Coup,” New York Times, November 19, 1991, 1. Haitian Refugee Center v Baker [1991] 789 F.Supp. 1552, 1570 (SD Fla). Haitian Refugee Center v Baker [1991] 949 F.2d 1109 (11th Cir). US Supreme Court Brief for US Government, 1992 US Briefs 344, 9 n 4.


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interdicted by the Coast Guard. On 24 May 1992, President Bush issued an emergency order suspending all refugee screening procedures. The Coast Guard was directed to return summarily all interdicted Haitians to Haiti. The order also reversed the Government’s position in regard to its international legal obligations under Article 33; the order included a declaration that the US’s obligations under the UN Protocol did not extend to persons “located outside of the territory of the United States.”26 The White House issued a press statement explaining that the order was humanitarian in nature and designed to protect lives by discouraging Haitians from leaving Haiti in boats not equipped to make a trip to the US safely. Haitians who feared persecution by the military government were urged to stay in Haiti and to present themselves at the US Embassy in Portau-Prince where the US began a new programme of accepting in-country refugee applications. The US Government characterised the decision to accept refugee applications at the US Embassy in Port-au-Prince as an adequate alternative to individuals fleeing the country and seeking asylum in the US or elsewhere. After six months, the Embassy conditionally approved 114 refugee applications out of approximately 9,000 applications. This conditional approval rate of approximately 1.3% contrasted sharply with the interdiction shipboard screening approval rate where almost 30% of the roughly 35,000 Haitians interdicted between October 1991 and May 1992 were found to have bona fide claims.27 A new legal challenge was filed seeking a halt to summary interdiction. During the litigation the Government explained that it had reversed its position regarding the extraterritorial effect of Article 33 because it had previously failed to consult the Department of State regarding Article 33’s reach, but had now done so, and the State Department’s view was that Article 33 did not have extraterritorial effect.28 The Government contrasted Article 33’s prohibition of refoulement with a provision in the 1957 Hague Protocol Relating to Refugee Seamen which does obligate a state to admit refugee seamen under certain limited circumstances.29 No similar provision is found in Article 33. The new summary interdiction policy had its intended effect and the numbers of Haitians fleeing by boat diminished rapidly as Haitians realised that they would almost certainly be stopped and turned over to Haitian military authorities once the Coast Guard returned them to Port-au-Prince. The Supreme Court

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28 29

Executive Order No 12807 (29 May 1992). US Supreme Court Brief for Haitian Centers Council, 1992 US Briefs 344, 11; US Supreme Court Brief for US Government, 1992 US Briefs 344, 5. Sale v Haitian Centers Council [1993] 509 US 155, 161, n 9. US Supreme Court Brief for US Government, 1992 US Briefs 344, 63 n 22.

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upheld the summary interdiction policy, concluding that Article 33’s nonrefoulement provision did not apply in international waters.30 A dissenting justice characterised the decision as one that permitted the US to comply with its obligations under Article 33 when faced with small refugee migrations and to disavow its obligations when confronted with a mass migration.31 Safe haven camps at Guantanamo In June 1994, in anticipation of a US military operation in Haiti against the military junta, the US halted the summary interdiction practice and resumed the shipboard screening procedures for interdicted Haitians. In July the US began offering safe haven at Guantanamo for all interdicted Haitians. Over 16,000 Haitians were interdicted and detained at Guantanamo as a result of the new safe haven policy. On 18 September 1994, the US military entered Haiti and removed the military junta from power. Aristide returned to Haiti in October 1994. As a result, many Haitians in Guantanamo safe haven voluntarily agreed to repatriation, though some continued to resist return to Haiti. On 29 December 1994 the US presented the Haitians who were resisting repatriation with an ultimatum. The Haitians were given one week to agree to return to Haiti and in exchange, each individual would receive US $80. For those who did not agree, forcible repatriations, without the payment, would take place. First interdiction of Cubans On 8 August 1994, Fidel Castro announced that Cuba would not prevent those Cubans who wanted to leave Cuba by boat or raft from doing so. Over the course of a few weeks, approximately 8,000 Cubans succeeded in leaving Cuba. This event did not involve US boats sailing to Cuba, as had been the case during the Mariel boatlift, rather it consisted of Cubans using Cuban boats or building make-shift rafts to leave Cuba.32 On 24 August, in an effort to prevent a chaotic exodus, the Coast Guard for the first time began to interdict Cubans. The US announced that the interdicted 30 31 32

Sale v Haitian Centers Council [1993] 509 US 155. Id. Cuban rafters were able to take advantage of the northerly flowing Gulf Stream that flows away from Cuba’s northern coast towards south-eastern Florida where they were likely to be rescued by the Coast Guard. An anti-Castro US-based organisation, Hermanos al Rescate (Brothers to the Rescue) routinely conducted aerial search missions to spot drifting rafters. Two of the organisation’s airplanes were shot down by the Cuban Air Force when they entered Cuban airspace in 1996.


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Cubans would not be brought to the US, as had always been the case in the past, but would instead be detained at Guantanamo or at a US military base in Panama. Within six months there were approximately 20,000 Cubans detained in Guantanamo. On 9 September, the US and Cuba reached an agreement in which Cuba agreed to again prevent Cubans from leaving Cuba and the US in turn agreed to increase the annual number of immigrant and other visas available to Cubans wishing to leave Cuba for the US.33 On 2 May 1995 the US and Cuba announced a supplemental agreement under which the Coast Guard would return interdicted Cubans found not to have bona fide refugee claims directly to Cuba rather than taking them to Guantanamo. The Cubans who remained in Guantanamo would be permitted to enter the US.34 With this decision taken, the mass detention of Haitians and Cubans at Guantanamo came to an end.

5. Current interdiction practices The domestic legal framework The September 1994 migration agreement with Cuba ended what to date was the last mass maritime migration event experienced by the US. The varying interdiction practices which for years were implemented to respond to the mass migration events originating in Haiti and Cuba have evolved into the current programme designed to address new migrant nationalities and new routes within the Caribbean and the Pacific Ocean. The authority for and reach of the current interdiction programme stem largely from three presidential directives issued in 1992, 1993, and 2002 and formal legal opinions issued by the US Department of Justice. The 1992 Executive Order was issued by George H.W. Bush in response to the May 1992 surge of Haitian migrants.35 This order superseded Reagan’s 1981 order which established the original interdiction programme.36 The 1992 order eliminated the requirement that interdicted migrants be screened for refugee claims. The order contained the new legal determination that US obligations to apply Article 33 did not extend to persons encountered outside of US territory.

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US-Cuba Joint Communiqué on Migration (September 9, 1994) US Dept. of State Dispatch, Vol 5, No 37 (12 September 1994). Joint Statement With Republic of Cuba on the Normalization of Migration, 31 Weekly Comp. Pres. Doc. 752 (2 May 1995). Executive Order No 12807 (29 May 1992). Executive Order No 12324 (29 September 1981).

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The order did however confer upon the Attorney General the discretionary authority to extend Article 33 protection to interdicted persons on a case-by-case basis.37 While the 1992 order only addressed acts of interdiction which took place outside of “the territorial sea of the United States,” a legal opinion issued the following year by the Department of Justice’s Office of Legal Counsel concluded that migrants interdicted within the twelve-mile zone of US territorial waters likewise were not permitted to claim any protection under domestic immigration laws or any entitlement under Article 33.38 The Justice Department’s conclusions were further extended to apply to interdictions occurring within the “internal waters” of the US in a subsequent legal opinion issued in 1996.39 The Office of Legal Counsel concluded that migrants on board a vessel that reaches the internal waters of the US, such as the straits between the Florida Keys, but who have not landed on “dry land” would not be entitled to protection under Article 33 or domestic immigration laws because the migrants would not yet be present on US territory.40 There is a third Office of Legal Counsel opinion which appears to provide additional guidance on interdiction practice within US territorial waters, but the Justice Department has not publicly released the memorandum.41 In 2006, fifteen Cubans landed on an abandoned bridge in the Florida Keys. The bridge had once connected two islands but for many years had not been connected to either island. The Coast Guard concluded that the Cubans had not landed on US territory and therefore returned the Cubans to Cuba as if they had

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“[T]he Attorney General, in his unreviewable discretion, may decide that a person who is a refugee will not be returned without his consent.” Executive Order No 12807 (29 May 1992) §2(c)(3). “Immigration Consequences of Undocumented Aliens’ Arrival in United States Territorial Waters,” Memorandum from Office of Legal Counsel, US Department of Justice (13 October 1993), http://www.USdoj.gov/olc/opinions.htm (accessed 9 October 2009). The memo states, inter alia, that “the State Department has advised us of its view that the United States’s international law obligations under the Protocol do not require it to provide … hearings to aliens who have merely arrived in its territorial waters.” Internal Waters are defined by the Convention on the Territorial Sea and Contiguous Zone (1958) 15 UST 1606 and by 33 USC §2003(o). The Legal Opinion used as examples of inland waters “the straits between the Florida Keys, portions of the Chesapeake Bay, or even the upper reaches of the Potomac River.” “Rights of Aliens Found in US Internal Waters,” Memorandum from Office of Legal Counsel, US Department of Justice (21 November 1996), http://www.USdoj.gov/olc/opinions.htm (accessed 9 October 2009). “Whether the Interdiction of Undocumented Aliens Within United States Territorial Waters Constitutes an ‘Arrest’ Under Section 287(a)(2) of the Immigration and Nationality Act,” Memorandum from Office of Legal Counsel, US Department of Justice (22 April 1994). A request to make the memorandum public was made in September 2009.


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been interdicted at sea. A court in Miami found the Coast Guard’s action to be wrong, because the court concluded the bridge was a part of US territory, and therefore the Cubans were entitled to seek asylum. The US Government was ordered to try to secure the return of the Cubans from Cuba.42 In 1993 in response to what the US characterised as an increase in “Asian criminal syndicate smuggling of Chinese nationals illegally into the US by air, sea and across land borders,” President Clinton issued a presidential directive that expanded the Coast Guard interdiction programme to the Pacific Ocean. The directive ordered the Coast Guard to interdict smuggled aliens “as far as possible from the US border” and, if feasible, to escort interdicted vessels to the nearest non-US port.43 The international legal framework The current practice of the US is to offer Article 33 protection under certain circumstances to interdicted migrants. However, as discussed above, the US Government has made clear that it considers this a discretionary practice which may be suspended at any time. Since the issuance of the 1992 presidential directive, the Government has taken the position that neither Article 33 nor the domestic law implementing Article 33 has any applicability outside of the land territory of the United States. The Supreme Court agreed with the Government’s interpretation in its 1993 decision in Sale v Haitian Centers Council.44 The Supreme Court in Sale focused on what it believed to be the correct meaning of Article 33’s use of the terms “expulsion” and “return” and reasoned that the terms could only apply to persons who were already present within the territory of a state party. The Supreme Court therefore concluded that Article 33 could not “reasonably be read to say anything at all about a nation’s actions towards aliens outside its own territory.” While the US takes the position that its obligations under the UN Protocol do not extend to its interdiction activities in international or territorial waters, the US does rely on various international conventions and bilateral agreements for its authority to stop and board vessels in international waters and, under certain circumstances, in the territorial waters of third countries.

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Movimiento Democracia, Inc v Chertoff [2006] 417 F.Supp.2d 1343 (SD Fla). The court conducted a detailed review of the bridge’s history and noted that it had been temporarily ‘reconnected’ to one of the islands in 1993 in order to be blown up during the filming of the Arnold Schwarzenegger film “True Lies.” Presidential Decision Directive No 9 (18 June 1993), http://ftp.fas.org/irp/offdocs/pdd9.txt (accessed 9 October 2009). [1993] 509 US 155.

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While US interdiction practices have largely been conducted as a means of preventing the entry of unauthorised migrants into US territory, there has always been a rescue at sea component to the practice as well. The US claims an obligation under the 1979 International Convention on Maritime Search and Rescue to rescue migrants on board vessels that appear to be in distress. The Department of State has said this Convention obligates the US to deliver migrants in distress to a place of safety such as a Coast Guard ship.45 The Coast Guard further relies on the 1974 Convention for the Safety of Life at Sea (SOLAS) for the authority to stop vessels it considers to be unsafe for various reasons, including overcrowding, lack of navigational equipment, lack of safety equipment, and lack of a qualified crew. Internal Coast Guard operating procedures make clear that an encounter with a vessel which begins as a search and rescue operation does not preclude the encounter from becoming a migrant interdiction or law enforcement operation.46 The US also ratified the 2000 Protocol Against the Smuggling of Migrants by Land, Sea and Air in 2005. This Protocol authorises the boarding of foreign flagged vessels in international waters with the permission of the flag state if there are reasonable grounds to suspect the vessel is engaged in the smuggling of migrants. In the absence of a search and rescue situation, the Coast Guard is only authorised in international waters to stop and board US flagged vessels and unflagged vessels. In order to stop and board a foreign flagged vessel in international waters, the Coast Guard must either secure permission from the government of the flag state on a case-by-case basis or have standing authorisation pursuant to a bilateral agreement. When the original interdiction programme began in 1981, the US negotiated an agreement with Haiti which authorised the Coast Guard to stop and board Haitian vessels encountered in international waters.47 This agreement was terminated by Haiti in 1994, but the Coast Guard continues to return interdicted Haitians to Haiti without objection from the Government of Haiti.48 There are at least five bilateral agreements in effect which authorise the Coast Guard to interdict vessels under certain circumstances within the territorial

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“Department of State Congressional Response on US Policy Towards Haitian Refugees,” 2002 Digest of US Practice in International Law, Department of State, http://www.state.gov/ s/l/38613.htm (accessed 9 October 2009). “US Coast Guard Maritime Law Enforcement Manual,” Chapter 6, § C.1.c.2, http://www.uscg .mil/hq/cg5/cg531/AMIO/FOIA_Docs.pdf (accessed 9 October 2009). Exchange of Notes Constituting an Agreement Concerning the Interdiction Of and Return of Haitian Migrants (23 September 1981) T.I.A.S. No 10241. Haitian President Aristide terminated the agreement effective October 1994 while in exile in the United States; William Booth, “400 Haitians Intercepted,” Washington Post, April 23, 1994, A3.


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waters of the other country or to interdict the country’s flagged vessels in international waters.49 An agreement with the Bahamas authorises the Coast Guard to enter certain Bahamian territorial waters to stop and board unflagged vessels and to stop and board Bahamian flagged vessels if the Coast Guard ship is carrying a Bahamian official.50 An agreement with the Dominican Republic authorises the Coast Guard to enter territorial waters in hot pursuit of vessels and to board flagged vessels of the Dominican Republic in international waters.51 Both of these agreements have identical provisions where the US agrees not to return an interdicted migrant who is a refugee or who would likely be tortured. The US has negotiated narrower agreements with three countries in the Pacific, Palau, the Marshall Islands, and Micronesia. The agreements authorise the US to stop and board vessels within territorial waters and within the countries’ exclusive economic zones as long as an official from the country is present on the Coast Guard ship.52 There are dozens of other bilateral and multilateral agreements which contain maritime interdiction provisions in areas such as drug and narcotic smuggling, weapons of mass destruction, and terrorism. Vessel interdictions in international waters initiated pursuant to authorisation provided by one of these other agreements may become migrant interdictions when it is discovered that the vessel is transporting migrants. Expanded migrant flows Most migrant interdictions continue to occur in the Caribbean and, with the exception of the 2003–2006 period, continue to involve mostly Cubans and Haitians. But there have been changes in the nature of migrant departures from

49

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In addition to these 5 bilateral agreements, there are three agreements with Cuba which, while not authorising the boarding of Cuban flagged vessels, clearly recognise the fact that the Coast Guard interdicts Cuban nationals in international waters. See Joint Communiqué Concerning Normalizing Migration Procedures (9 September 1994); Joint Statement Regarding Normalization of Migration Procedures (2 May 1995); and Agreement Concerning United States and UNHCR Cooperation in Providing Assistance to the Cuban Boat People, Exchange of Letters at Washington (29 September and 5 October 1994) (listed in 2009 United States Treaties in Force). Agreement Concerning Cooperation in Maritime Law Enforcement (Bahamas-US) (29 June 2004). Agreement Concerning Cooperation in Maritime Matters (Dominican Republic-US) (20 May 2003). Agreement Concerning Cooperation to Suppress Illicit Activity at Sea (Palau-US) (5 and 20 March 2008); Agreement Concerning Cooperation in Maritime Surveillance and Interdiction Activities (Marshall Islands-U.S) (5 August 2008); Exchange of Notes on Cooperative Shiprider Agreement (Micronesia-US) (30 April and 14 May 2008).

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Cuba and Haiti since the mass migration events of the early 1990s, professional smuggling operations are now common for both countries, and there are new migrant flows, the largest being Dominicans who attempt to enter the US by crossing the 100 kilometre Mona Passage between the Dominican Republic and the US territory of Puerto Rico.53 Between 1995 and 1997 the Coast Guard interdicted approximately 9,500 Dominicans in the Mona Passage. From October 2003 to September 2006, migrants from the Dominican Republic constituted the largest single nationality interdicted by the Coast Guard.54 Efforts to smuggle significant numbers of Chinese nationals by sea to the US began in the 1990s. The Coast Guard estimated that between 15,000 to 20,000 Chinese migrants entered the Western Hemisphere annually by sea during most of the 1990s, some landing in Central America and Mexico and then attempting to enter the US by land, others attempting to enter the US through the Caribbean and landing in Puerto Rico, the US Virgin Islands or the US mainland.55 The Coast Guard has characterised Chinese migrant smuggling as highly organised criminal operations involving the use of large vessels to cross the Pacific Ocean and subsequent transfers to smaller vessels to land the migrants at the intended destination.56 Pursuant to the 1993 presidential directive to interdict migrants as far away as possible from US borders, the Coast Guard began to intercept Chinese migrants in the western Pacific Ocean. In the late 1990s several thousand Chinese migrants from interdicted ships were detained for processing on Guam, Midway Island, and the Northern Mariana Islands. Beginning in 1999, Coast Guard drug interdiction patrols began intercepting migrant boats leaving Ecuador heading towards Mexico or Central America. Coast Guard migrant interdiction efforts were therefore expanded to the eastern Pacific. The US proposed a migrant interdiction treaty with Ecuador, but the proposal was rejected by Ecuador.57 The US did, however, negotiate to lease a military airbase in Manta, Ecuador from which drug and migrant surveillance flights were flown. The ten-year lease on the Ecuadorian base ended in September 2009.

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54 55

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US Coast Guard migrant interdiction statistics are available at http://www.uscg.mil/hq/cg5/ cg531/amio.asp#Introduction (accessed 10 October 2009). http://www.uscg.mil/hq/cg5/cg531/AMIO/FlowStats/FY.asp (accessed 10 October 2009). One of the most well-known incidents on the US mainland occurred in June 1993 when the Golden Venture ship carrying 300 Chinese migrants ran around on a New York City beach. “A History of Coast Guard Aviation – the Present Era, 1995–2008,” US Coast Guard, http:// www.uscg.mil/history/webaircraft/CGAviationHistory1994_2008.pdf (accessed 10 October 2009). Coletta Youngers and Eileen Rosin, eds, Drugs and Democracy in Latin America: the Impact of US Policy (Boulder, Colorado: Lynne Rienner Publishers, 2005) 241.


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Ecuador refused to extend the lease. To compensate for the lost facility, the US negotiated an agreement with Colombia to base similar surveillance operations on several different military bases in Colombia. Two additional leased military facilities, known as Forward Operating Locations, have operated in El Salvador since 2000 and Curacao, Netherlands Antilles since 1999.58 These various Forward Operating Locations have been secured by the US to compensate for the loss of the US military bases in Panama from which the US was required to withdraw at the end of 1999 under the terms of the 1977 US-Panama agreements. Interdiction procedures The Coast Guard describes current US interdiction policy as follows: “Despite the [Supreme Court’s] Sale v Haitian Centers Council decision, as a matter of policy, the US Government affords migrants with an opportunity to seek and receive protection from persecution or torture.”59 The manner in which this policy is implemented depends on the interdicted migrant’s nationality. All interdicted Cubans are given asylum pre-screening interviews conducted by US Citizenship and Immigration Service (‘USCIS’) asylum officers who are stationed on board Coast Guard ships on patrol in areas where Cubans are likely to be encountered.60 Interdicted Chinese are given written questionnaires to identify the reasons for which the migrant left China. The completed questionnaires are transmitted to USCIS headquarters for review and a determination whether a more formal asylum interview should be provided. All other nationalities are given pre-screening interviews only if the interdicted migrant manifests a fear of persecution or torture.61 If an interdicted migrant in the Caribbean is found to possess a credible claim to refugee status, the migrant is transported to and held at the Guantanamo Migrant Operations Centre for further processing. While there is no permanent migrant processing centre in the Pacific, migrants interdicted in the western Pacific Ocean have been taken to the US territory of Guam or other locations on an ad hoc basis for processing.

58 59

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http://www.southcom.mil/appssc/factfiles.php?id=63 (accessed 9 October 2009). “US Coast Guard Immigration Law Enforcement Manual,” Chapter 6, § B.2.a.1, US Coast Guard, http://www.uscg.mil/hq/cg5/cg531/AMIO/FOIA_Docs.pdf (accessed 9 October 2009). USCIS is a division of the US Department of Homeland Security. DHS was created on 1 March 2003. The functions of the INS were taken over by the DHS at this time. “US Coast Guard Immigration Law Enforcement Manual,” Chapter 6, § D, US Coast Guard, http://www.uscg.mil/hq/cg5/cg531/AMIO/FOIA_Docs.pdf (accessed 9 October 2009).

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In addition to screening for possible refugee claims, the Coast Guard collects biometric data from some interdicted migrants. In November 2006 it began a pilot programme known as “Biometrics at Sea” in connection with interdiction operations in the Mona Passage. Interdicted migrants were digitally fingerprinted and photographed and the collected information was searched against criminal and immigration offender databases for the purpose of identifying previously deported migrants, wanted criminals, and other persons of interest. Over two hundred criminal prosecutions of migrants interdicted in the Mona Passage have occurred. The biometrics collection practice has been expanded to other locations in the Caribbean.62 Extraterritorial processing at Guantanamo and elsewhere In 2002 Clinton issued a directive mandating that migrants interdicted in the Caribbean be detained at an appropriate location within the Caribbean region during processing. The directive authorised the use of Guantanamo for this purpose.63 The directive also reaffirmed US policy that there is no requirement to determine whether an interdicted person is a refugee. The Migrant Operations Centre has been in operation at Guantanamo since 2003. It is run by the GEO Group, a for-profit corporation which operates prisons and mental health facilities in the US and four other countries. It has the capacity to detain 130 migrants, with surge capacity of 530, but has rarely held more than 30 or 40 individuals at any one time.64 Interdicted migrants with credible claims to refugee status are transported to Guantanamo for further interviews by USCIS asylum officers to determine whether they are entitled to refugee status. If a migrant is found to be qualified, the migrant will be resettled in a third country. Since 1995, when the US and Cuba ended their last migration crisis, the US has generally refused to admit any interdicted migrants determined to have valid refugee claims. It appears that only Cubans and Haitians have been detained at the Guantanamo facility. In 2007, the US resettled twenty-two Cubans to Paraguay, Spain, the Czech Republic, and Costa Rica from the Migrant Operations Centre.65 Through 2005, nine interdicted Haitians were found to possess credible claims to asylum and 62

63 64 65

“Coast Guard Employs Biometric Advantage,” Biometrics Task Force Newsletter, US Department of Defense (April 2009), http://www.biometrics.dod.mil/Newsletter/Issues/2009/Apr/ v5issue2_PM.html (accessed 10 October 2009). Executive Order No 13276 (15 November 2002). http://www.thegeogroupinc.com/facility.asp?fid=84 (accessed 10 October 2009). “Emergency Refugee and Migration Assistance, Congressional Presentation Document, Fiscal Year 2009,” US Department of State (April 2008); “Cuban Migration to the United States: Policy and Trends,” Congressional Research Service (2 June 2009).


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brought to Guantanamo, though only one of the nine was subsequently classified as a refugee.66 When the Coast Guard interdicts migrants in the Pacific, the 1993 presidential directive instructs the Coast Guard to transport the migrants to the nearest non-US port “if practical and assuming host nation concurrence.”67 In practice, most interdicted migrants in the western Pacific have been taken to the US territory of Guam for processing. Since US immigration laws apply in Guam, upon arrival in Guam interdicted migrants are entitled to make formal applications for asylum. In 1999, when a large number of Chinese migrants were being interdicted, the US Coast Guard began to divert interdicted migrant boats to Tinian Island in the Commonwealth of the Northern Mariana Islands. Even though there is a commonwealth agreement between the US and the Northern Mariana Islands, US immigration laws do not apply there.68 The detained Chinese were subjected to asylum pre-screening procedures and those who were screened-out were not permitted to make asylum applications. The majority of the interdicted Chinese were screened-out and returned to China.69 Implications for migrants of the litigation relating to the wartime detainees at Guantanamo Guantanamo was first used as a place of detention for small numbers of Haitian boat people as early as 1977, but it was not until 1991 that the US began using Guantanamo to detain large numbers of Haitians and then, a few years later, large numbers of Cubans. The US began to detain post-September 11 wartime detainees there in 2002. While the Government’s original decision to use Guantanamo to detain Haitians was certainly based in part on geographic convenience – Guantanamo is close to the Windward Passage, the channel between Cuba and Haiti, where most Haitian interdictions occurred in the 1990s – its use as a place of detention was also attractive to the Government because of the belief that US courts did not have the authority to consider challenges brought by or on behalf of aliens detained there. In the first post-September 11 wartime 66

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“US Immigration Policy on Haitian Migrants,” Congressional Research Service (31 January 2008). Presidential Decision Directive No 9 (18 June 1993), http://ftp.fas.org/irp/offdocs/pdd9.txt (accessed 9 October 2009). This will change effective 1 January 2015 when US immigration laws will be extended to the Commonwealth. Consolidated Natural Resources Act of 2008, Public Law No 110-229, Title VII. “United States Country Report 2000,” US Committee for Refugees and Immigrants, available at http://www.refugees.org/countryreports.aspx (accessed 9 October 2009).

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detainee case to reach the Supreme Court, Justice Antonin Scalia acknowledged that the US had relied upon the Supreme Court’s World War II era decisions and the Haitian migrant case decision to detain wartime prisoners at Guantanamo based upon the belief that Guantanamo was outside of the jurisdiction of US courts.70 The Supreme Court has to date decided three cases involving the wartime detainees at Guantanamo.71 Each of its three decisions has rejected the Government’s position that the courts lack authority to hear cases arising in Guantanamo because Guantanamo is not part of US territory. But these three decisions have limited bearing on the rights of the migrants detained at Guantanamo or interdicted in international waters. This is true for two primary reasons. First, the remedies sought by most of the wartime detainees are different from the remedies sought by the migrants. Many of the wartime prisoners are seeking release from detention and desire to return to their home country or to a country other than the US, whereas interdicted migrants are typically seeking admission to the US as refugees. Second, the underlying substance of the legal claims is quite different. The applicability of the Third Geneva Convention was a central issue in one of the cases, Hamdan v Rumsfeld, and relevant in the two other cases. There was no serious question regarding the extraterritorial effect of the Geneva Conventions. But the extraterritorial reach of the Third Geneva Convention does not alter the Supreme Court’s earlier analysis and conclusion that the UN Refugee Convention’s non-refoulement obligations do not have extraterritorial effect. However, migrants detained at Guantanamo, especially if subjected to extended periods of detention, may be able to rely to some extent on the three wartime detainee cases for the proposition that US courts have authority to review the legality of the Government’s detention of a person outside of the US. But again, if the remedy sought by the migrant is admission to the US as a refugee, as opposed to release from detention at Guantanamo in order to return home or to a third country, there is nothing in the wartime detainee cases to support a migrant’s claim for admission to the US. This issue has already arisen in the cases of several wartime detainees who the US has agreed to release from Guantanamo but who are seeking to prevent the US from returning them to a country where they claim they are likely to be tortured. A Court of Appeals has concluded that courts do not have jurisdiction to review claims for protection under the Convention Against Torture. The court

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Rasul v Bush [2004] 542 US 466, 497–98 (Scalia dissenting). Rasul v Bush [2004] 542 US 466; Hamdan v Rumsfeld [2006] 548 US 557; Boumediene v Bush [2008] 128 S.Ct. 2229.


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held that US law only permits judicial review of such claims in the context of immigration removal proceedings which are only provided to aliens present within US territory.72 The reasoning of the Court of Appeals is identical to the Supreme Court’s reasoning in Sale, the Haitian migrant case: migrants interdicted in international waters or held at Guantanamo cannot benefit from Article 33’s protections because the protections are given effect by domestic immigration laws which in turn are only available to aliens present within US territory. The Supreme Court has agreed to hear an appeal in this case and a decision is likely by June 2010.73

6. Conclusion Even though the largest migrant flows into the US have come from Cuba, the first US interdiction efforts were directed exclusively towards Haitians. When Cubans were encountered at sea, they invariably would be brought to the US. This changed in 1994 when the US began interdicting Cubans. The term “trophy refugee” has been used to describe those fleeing a communist country for the US.74 Trophy refugees fleeing Fidel Castro’s Cuba were for many years welcomed by the US. But this position changed as the Cold War period ended. The political benefits to the US of receiving a large number of Cubans were few, if they existed at all. When in August 1994 the Cuban Government suspended measures to prevent Cubans from leaving Cuba by sea, over 8,000 Cubans reached the US in a three week period. Fearful of another new mass exodus from Cuba along the lines of the Mariel boatlift of 1980, the US began to interdict Cubans at sea and detain them at Guantanamo. Today, the interdiction programme is directed at all migrants, regardless of nationality, who seek to enter the US by sea, although Cubans and, to a lesser extent, Chinese benefit from preferential shipboard screening procedures when intercepted by the Coast Guard. If the success of today’s interdiction programme is measured in terms of how well it prevents migrants from reaching US shores, then it has only been a

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Kiyemba v Obama [2009] 561 F.3d 509 (DC Cir). The Court of Appeals relied on a 2008 Supreme Court decision which held that US courts did not have the authority to prevent the transfer of two US citizens from US military custody in Iraq to the Iraqi Government for criminal prosecution. The two US citizens asserted they were likely to be tortured if turned over to Iraqi custody. Munaf v Geren [2008] 128 S.Ct. 2207. Kiyemba v Obama, Supreme Court Case No 08-1234 (20 October 2009). Joan Fitzpatrick, “Flight From Asylum: Trends Toward Temporary ‘Refuge’ and Local Responses to Forced Migrations,” Virginia Journal of International Law 35 (1994): 13, 28.

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limited success. Over the past ten years the US Coast Guard has interdicted on average just over 6,000 migrants per year. But the Coast Guard estimates that more than 50% of Cuban, Haitian, and Dominican migrants who leave their countries by sea are able to evade US interdiction efforts. The Coast Guard estimates that it annually interdicts approximately 40% of Cuban migrants, 45% of Haitian migrants, and 50% of Dominican migrants crossing the Mona Passage.75 If the programme’s success is measured by considering the question of whether it provides adequate procedures to identify whether an interdicted migrant has a potential refugee claim, the response is that it depends. It depends not only on the nationality of the interdicted migrant, but also on the circumstances under which the interdiction occurs. The US has not reversed its position taken in 1992 in regard to Article 33’s inapplicability to migrant interdiction actions in international waters – indeed, as discussed, the US has taken the position that Article 33 does not apply to interdiction in its territorial or internal waters – instead, the US takes the position that it will allow individual interdicted migrants to pursue claims for protection as a discretionary matter. Based upon past practices, it seems clear that the US is willing to extend Article 33 protection to interdicted migrants as long as the number of migrants seeking protection remains small. It seems equally clear however that if and when the US is again faced with a large migrant flow, the US will again refuse to extend Article 33 protection to interdicted migrants.

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Testimony of Rear Admiral Wayne E. Justice, Assistant Commandant for Capabilities, US Coast Guard, “Overview of Coast Guard Drug and Migrant Interdiction,” Before the House Committee on Transportation and Infrastructure, Subcommittee on Coast Guard and Maritime Transportation (11 March 2009).

The UK and Extraterritorial Immigration Control: Entry Clearance and Juxtaposed Control Gina Clayton Border control can no longer just be a fixed line on a map. Using new technology, particularly biometrics, and new approaches to managing risk and intelligence, we must create a new offshore line of defence, checking individuals as far from the UK as possible and through each stage of their journey. Our aim is to make legitimate travel easier, yet prevent those who might cause us harm from travelling here. – UK Border Agency ‘philosophy of border control’, March 2007

1. Introduction If immigration is regarded as a problem, then there is an obvious advantage to a government in conducting immigration control outside its territory. The decision-making process is further from public view, and the result of a refusal is not a person of uncertain status pursuing appeals, but simply an absence. Someone who did not arrive is ‘out of sight, out of mind’. This maintenance of decision-making away from public scrutiny is supported in the case of the UK by a belief in immigration control as a matter for the executive branch of government, and by practices which enact that belief. Despite the modern panoply of scrutiny bodies and committees, the resistance of the executive to subjecting immigration decisions to qualitative scrutiny is remarkably resilient. It seems to emerge in a new form after each encounter with parliamentary or judicial curbs, sometimes not tamed but invigorated. This essay discusses the roles currently played in this process by two extraterritorial immigration control mechanisms: entry clearance and juxtaposed control. Entry clearance has a long history, and is the quintessential form of semi-formalised executive discretion. A short historical account shows how it has grown up uniquely apart from democratic control though in relationship to it. Juxtaposed controls are a recent offspring of international collaboration to deter asylum claims. The legal foundation for immigration control in the UK is ‘leave to enter’, established by the Immigration Act 1971 as a requirement for all non-EEA


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nationals.1 At the time of the passage of the Immigration Act 1971, leave to enter was granted or refused at ports of entry, by immigration officers. Statutory amendments made in 2000 paved the way for a radical relocation of this decision, enabling the grant or refusal of leave to enter to happen before the traveller even arrives in the UK. These changes in legal process have been made in tandem with technological developments, with the aim of creating what the government calls ‘e-borders’ – electronic borders. Through a combination of machine readable passports, digital photography and fingerprinting, it is planned that all passengers will be subject to electronic checks of their identity. Any alert generated by such a check is likely to result in refusal of leave to enter. Finally, changes in the substantive law relating to work and study have been accompanied by a reduction in appeal rights, rendering those decisions virtually unchallengeable. This essay charts the use and development of entry clearance, including its enhancement by technology. Secondly it describes the establishment of juxtaposed controls, by which leave to enter may be granted or refused abroad, and the particular problems these present in terms conflicts of laws, accountability, redress and protection for travellers. The availability of and limitations on appeals are discussed, together with questions about due process and human rights.

2. Entry clearance Entry clearance is a form of prior authorisation to enter the UK, granted at diplomatic posts abroad. It has developed from an exercise of the discretion of Foreign Office officials and even today it lacks a statutory basis; thus its scope and terms remain within executive control. Despite this, it is now the effective immigration decision for most routes of entry. The history of entry clearance Even before the First World War, when passports were not generally required for travel,2 the requirement for particular entrants to have prior authorisation was used as an instrument of control. For instance, in the eighteenth century the ‘Secretary of State issued instructions that no Jews were to come to England on his Majesty’s packet boats except those who had paid their passage in full and 1

2

Immigration Act 1971 s.3(1): Except as otherwise provided under this Act, where a person is not a British citizen (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of or made under this Act. The word ‘passport’ itself had no settled meaning: see Ann Dummett and Andrew Nicol, Subjects, Citizens, Aliens and Others (London: Weidenfeld and Nicolson, 1990), fn p. 78.

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had “passports” from an ambassador or minister abroad’.3 As now, the carrier was enlisted into immigration control and the requirement was instituted as a means of targeting a particular group.4 The mechanism of visas was established during the First World War for all those who were not nationals of Commonwealth countries (known at that time in English law as ‘aliens’).5 After the war, visas were retained as a mechanism to restrict entry from specific countries, including, even then, to prevent the arrival of refugees. For example, Dallal Stevens records that Germans and Austrians did not need visas for the UK after 1927, but in 1938 the UK government reinstated a visa requirement for those two countries.6 Alongside ad hoc requirements for visas, another system of prior entry clearance developed. The first immigration controls for Commonwealth citizens were introduced in 1962, and with this an arrangement for Commonwealth citizens to establish their eligibility for entry before travel by obtaining an entry certificate at a diplomatic post abroad.7 The certificate was promoted by the Home Office as a method of facilitating entry,8 however, the practical reality of obtaining it meant that it operated as an obstacle.9 As Macdonald related, entry certificates were only issued by officers at High Commissions, and applicants might have over 800 miles to travel. When they arrived their papers might not be completely in order, and they might be sent back for an interview at a later date.10 Dependants would have to prove their family relationships before DNA testing was available. Despite this, the Immigration Appeals Act 1969 made such certificates mandatory for dependent relatives of Commonwealth citizens. This major 3 4

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Ibid., 78. The designation of safe countries of origin and of particular groups within those countries as making prima facie unfounded claims (Nationality Immigration and Asylum Act 2002 s.94), the designation of countries as visa national countries and the ministerial authorisations to discriminate under the Race Relations Act 1976 s.19B may all be regarded as modern examples of targeting particular groups for more intensive controls. Defined in the Status of Aliens Act 1914 s.27 and British Nationality Act 1948 s.32 as those who were not British subjects, British protected persons or citizens of the Republic of Ireland. Dallal Stevens, UK Asylum Law and Policy (London: Sweet and Maxwell, 2004), 59–68. Commonwealth Immigrants Act 1962; instructions to immigration officers Cmnd 3465 November 1967: the holder of such a certificate ‘should be presumed to be qualified for admission’ (para. 2). Commonwealth Immigrants Act 1962; instructions to immigration officers Cmnd 1716 May 1962: ‘any Commonwealth citizen…who wishes to be assured that he is unlikely to encounter any difficulty in entering the country may, if he chooses, apply to the appropriate UK representative…for the issue of an entry certificate. See the study of entry clearance in Satvinder Juss, Discretion and Deviation in the Administration of Immigration Control (London: Sweet & Maxwell, 1997). Ian Macdonald, The New Immigration Law (London: Butterworths, 1972), 51.

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innovation was not the product of full debate and consultation, but was introduced at a late stage of the Bill’s Parliamentary progress.11 The period between 1 June 1969 and 1 January 1973 was the only one in which a requirement for entry clearance was laid down in statute. The 1969 Act was repealed by the Immigration Act 1971,12 which brought Commonwealth and non-Commonwealth migrants into one system of immigration control, and required all non-patrials13 to have leave to enter. The 1971 Act contained – and still contains – no requirement for entry clearance, nor any indication of who may be required to hold entry clearance. Despite that, through the provisions of the immigration rules, entry clearance was established as essential for certain entrants. It was defined in section 33 as ‘a visa, entry certificate or other document which, in accordance with the immigration rules, is to be taken as evidence of a person’s eligibility, though not patrial, for entry into the UK’.14 In summary, the 1971 Act recognised the existence of entry clearance, but left its scope and application up to the Secretary of State. It was the Secretary of State’s decision promulgated in the immigration rules that determined who should apply for entry clearance and gave the grant of entry clearance virtually binding force on the immigration officer (Cmnd 6406 para. 12). Conditions were laid down upon which a holder of entry clearance could be refused entry at the port. These repeated earlier instructions to immigration officers, and continue to the present day. A passenger holding entry clearance had and still has a right of appeal against refusal of entry which could be exercised in the UK (1971 Act s.13(3) ). More problematic was the right of appeal against refusal to issue an entry certificate (s.13(2) ).These appeals were conducted in the UK in the absence of the applicant. There were substantial hurdles to providing the required proof of family relationship.15 The existence and effectiveness of a right of appeal is a key element in the impact of entry clearance on the formation of the extraterritorial legal border, and is discussed further below. The status of entry clearance did not change again until 2000, when the Immigration and Asylum Act 1999 added to the 1971 legal structure a set of provisions which extended the government’s capacity to exercise extraterritorial immigration control. A new s.3A of the 1971 Act gave power to the Secretary of 11

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Satvinder Juss, Immigration, Nationality and Citizenship (London: Mansell, 1994), 44, quotes the National Council for Civil Liberties as saying that the positive impact of appeal rights, introduced by the Act, was ‘sabotaged’ by the introduction of mandatory entry certificates. Coming into force on 1st January 1973. Broadly, a ‘non-patrial’ was someone without a recent ancestral connection with the UK. The present day version says: ‘…as evidence [or the requisite evidence] of a person’s eligibility, though not [a British citizen]…’ Note 10 op. cit., 84–86. Macdonald describes the adjudicators’ preference for the entry clearance officer’s suspicion over documentation produced by the family.


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State to make orders which provided for leave to enter to be given or refused before the person concerned arrived in the UK, and for entry clearance to have effect as leave to enter. The Secretary of State used this power to make the Immigration (Leave to Enter and Remain) Order SI 2000/1161. From this point onwards, examination at the port of an entry clearance holder may only be carried out in order to decide whether leave to enter should be cancelled or revoked. The grant or refusal of leave to enter is made abroad.16 Where entry clearance was required, it became the effective immigration decision. Enabling the grant of leave to enter to take place abroad also created a new possibility for stationing immigration officers abroad, even in non-visa national countries.17 In the 2000 Order, entry clearance and leave to enter are still referred to as distinct, even though they have become barely distinguishable. The government now proposes a statutory merger of entry clearance and leave to enter, and may well seek to replace them with a single concept: ‘immigration permission’. This is part of its project of ‘simplification’ of immigration law, and may appear in a Bill in autumn 2009. Entry clearance officers were originally Foreign Office staff. In 1999 they began to report additionally to the Home Office, and since April 2008 the entry clearance operation has become the ‘international group’ of the UK Border Agency,18 a unified border force within which entry clearance officers are subsumed. Thus institutional changes have reflected the merger of entry clearance with leave to enter and the export of the legal border. Scope of entry clearance Combining Commonwealth and non-Commonwealth migrants into one system of control, which took place in the 1971 Act, had the result that where the immigration rules required entry clearance for a category of entry (e.g. as a spouse) the same kind of entry clearance was required for all such applicants. The requirement for entry clearance has been gradually extended to more kinds of

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Shachar makes this point in relation to the extensive use of immigration officers abroad by the United States: ‘decisions made by US immigration officers at these non-US locations are final decisions of admissibility’: Ayelat Shachar, “The Shifting Border of Immigration Regulation”, Stanford Journal of Civil Rights and Civil Liberties 3 (2007): 165 at 176. UK airline liaison officers stationed abroad do not yet formally grant or refuse leave to enter, though effectively they may prevent travel. Shachar describes the more extensive use that the US makes of immigration officers stationed abroad: ibid., 175. For further discussion of the role and accountability of ECOs see Gina Clayton, “Entry Clearance and Human Rights: Challenging the Boundaries of Jurisdiction”, Journal of Immigration Asylum and Nationality Law 20 (2006): 255–269.

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migration, and from 13 November 2005 onwards entry clearance has been required for entry for any purpose except in the case of non-visa nationals who intend to stay less than six months.19 Visa nationals are nationals of countries in a visa list, instituted in the instructions to immigration officers which accompanied the 1969 Act, and from that point on a permanent feature of the immigration rules. The designation of a country as one whose nationals require a visa to enter the UK, is an explicit element in the UK government’s strategy to deter people from seeking asylum in the UK.20 The first list was of ‘foreign’ countries, i.e. not Commonwealth, but the political and emotional barrier to including Commonwealth countries was broken with the inclusion of first21 Sri Lanka (due to government panic over Tamil refugees) in 1985, then India and Bangladesh in 1986.22 At the time of writing, 21 out of the 53 Commonwealth countries are designated as visa national, the majority being in Africa. The numbers of refugees coming to the UK began to rise in the 1980s, and in almost every case, when there was an increase in the number of refugees from a particular country, that country was designated visa national.23 The designation of a country as a visa national country is a political statement, and impacts on anyone who wants to travel from there. However the designation may be made, like any change to the immigration rules, by the Secretary of State, subject only to the proviso that if a Member of Parliament can gain sufficient support, they may be able to procure Parliamentary time to debate disapproving proposed rules.24 To asylum deterrence we may now add controlling illegal immigration, crime and security. In 2008, the government conducted a review of the visa regime in relation to all non European countries. Brazil, Mauritius, Malaysia, Trinidad and Tobago and Botswana were able to satisfy the UK government that they could improve procedures, and from 3rd March 2009 Taiwan ceased to be a visa national country on account of ‘strong commercial and cultural ties’.25 Nationals of South Africa, Bolivia, Venezuela, Swaziland and Lesotho all became visa 19 20 21 22

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Introduced by an immigration rule change HC 645 on 13 November 2005. See e.g. R v. SSHD ex p Yassine [1990] Imm AR 354. Pakistan was in an anomalous position as it left the Commonwealth in 1972. For a full list up to 2001, see Bernard Ryan, “The Common Travel Area between Britain and Ireland” Modern Law Review 64 (2001): 855, at 866. Stevens notes Turkey in 1989, Uganda in 1991, the former Yugoslavia in 1992, Sierra Leone and Ivory Coast in 1994, Kenya in 1996, Slovakia in 1998, Zimbabwe and Algeria in 2003 (op. cit., p. 93). The negative resolution procedure, s.3(2) Immigration Act 1971. This has rarely been achieved. http://www.ukvisas.gov.uk/resources/en/news/visafreeaccesstaiwanesevisitors (accessed 4 November 2009).


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nationals, though Venezuelans are exempt if they hold the new biometric, machine readable passport, containing an electronic chip. Entry clearance and biometrics The concept of the UK Border Agency and of e-borders is of a seamless web of immigration control. Entry clearance represents the first interface of that web with the intending traveller. The purpose of this interface is to prevent illegal immigration, detect and prevent crime, and reduce security risk. This requires an improved system for detecting applications made in a false identity and applicants with a previous adverse immigration history as well as those with a criminal record or presenting a security risk. The Nationality Immigration and Asylum Act 2002 section 126 granted power to the Home Secretary to require biometric information with applications for entry clearance or for leave to enter or remain in the UK. The power was piloted, in Sri Lanka, for all applicants for entry clearance, taking fingerprints only, from 18 July 2003.26 Djibouti, Eritrea, Ethiopia, Kenya, Rwanda, Tanzania and Uganda were added in 2004, the DRC, Netherlands and Vietnam in 2005. In 2004 the power was also extended so that fingerprints could also be taken from refugees presenting a Convention travel document and applying for leave to enter the UK. In 2006, section 126 was fully implemented by the roll-out of both digital photographs and fingerprinting as a requirement for all applications for entry clearance at all posts.27 Refusal to provide biometric data is a discretionary ground for refusing entry clearance or leave to enter.28 The fingerprints are electronically recorded by placing the fingers on a screen, and checked against police and immigration databases in the UK. The immigration database check includes the fingerprints of asylum applicants in the UK.29 However, fingerprints taken for entry clearance may not at be checked against Eurodac as this purpose is not within the Eurodac regulations,30 and a previous asylum claim must not be referred to in a refusal letter as to do so would create a risk to the applicant.31 As data build up,

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Immigration (Provision of Physical Data) Regulations 2003, SI 2003 No. 1875. Immigration (Provision of Physical Data) Regulations 2006, SI 2006/1743. Statement of changes in immigration rules HC 395 para. 320 (2). This may be gleaned from the Entry Clearance Guidance Notes 26.3, and Frances Webber interprets a communication from UKVisas to ILPA as saying so: Frances Webber, Border Wars and Asylum Crimes (London: Statewatch, 2006), 6 fn. 18. Regulation 2003/343/EC Article 21. Eurodac is the EU database of fingerprints of asylum seekers and those apprehended making an irregular crossing into the EU. UK Border Agency International Group, Entry Clearance Guidance para. 26.3.

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previous trips to the UK will be disclosed. The UK has entered into an agreement with the Department of Homeland Security in the USA so that biometric data obtained through UK visa applications in the USA is shared with the DHS.32 It is unlikely that this will be the only data-sharing agreement. Checks against police databases will record a match with prints of those who have been arrested, charged, cautioned or convicted. A further check with police records may be needed to find out for which of these reasons the fingerprints were taken, and the nature of the offence involved.33 At the same time the passport, where possible, is electronically scanned and checked against databases in the UK. The use of biometric information has a significant effect on the legal process. For instance, what weight does a fingerprint match carry in an entry clearance decision? The nature of technological information tends to its being treated as conclusive, both of what it purports to show and of what the outcome of a matter should be. However, the introduction of fingerprint matching does not change the immigration rules. A match is evidence which may be used towards making the decision, it is not itself the decider. A distinction must be made between refusal based on the immigration rules relating to the category of entry sought (e.g. student, parent for settlement) and refusal based on general grounds. Fingerprint matching will rarely found refusal based on the category rule. An exception might be if an undisclosed previous trip to the UK is revealed, as this may ‘reasonably give rise to concerns about openness and honesty’,34 and so might reflect directly on the category criteria where the rule requires proof of a subjective intention, for instance the visitor rule which requires an intention to leave at the end of the visit (HC 395 para. 41). More likely is that information revealed will be treated as relevant to a general ground for refusal (paragraph 320 of the immigration rules HC 395), which may be relied upon even though the conditions to meet the specific rule are established. General grounds for mandatory refusal which might arise from a fingerprint match are as follows: – the applicant is currently the subject of a deportation order; – false representations have been made or false documents submitted, or material facts not disclosed; – applicant has previously breached the UK’s immigration laws in specified ways. 32

33 34

Notes of UKBA International Group User Panel 21 May 2008 (on file with Immigration Law Practitioners’ Association). Ibid. Independent Monitor for Entry Clearance, Report to Secretary of State 21st September 2007, para. 125.


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In the case of previous breaches of immigration laws there is now a re-entry ban, introduced in April 2008. Periods range from zero for overstaying for less than 28 days and leaving at one’s own expense to 10 years where the applicant used deception in an application for entry clearance or was deported or removed (para. 320(7B) ). Prior to this, the UK’s only re-entry ban was attached to deportation orders. The important exceptions to the re-entry ban are family settlement cases, to comply with Article 8 ECHR, and where the applicant was under 18 at the time of the breach. The re-entry bans have made accuracy in para. 320 refusals even more important, and the tribunal has recently required that all such refusals are properly reasoned.35 For instance, a finding that deception was used in an application for entry clearance, prior to April 2008, would simply be a factor to take into account in a future application. Now it will generate a ban on future applications for 10 years, whether accurate or not. Relevant discretionary grounds for refusal which might arise from a fingerprint match include a widely phrased ground which came into effect on 30 June 2008: ‘the applicant has previously contrived in a significant way to frustrate the intentions of these Rules’ (para. 320 (11) ). Operational guidance about the application of these paragraphs says that ‘each case must be considered on its individual merits and, as in all other decision making, there must be reasonable grounds for reaching a decision’. It is clear from the rules and guidance that fingerprint matches are to be evaluated as evidence and not automatically treated as conclusive. What assurance does the applicant have that this has been done, and how can they challenge a match or a decision? First is the question of whether the applicant will even know that a fingerprint match played a part in the refusal. A sample refusal notice in the Entry Clearance Guidance reads ‘as a result of a Biometrics fingerscan, records held in the United Kingdom indicate that you have, in fact, previously been in the UK and applied to remain’ (para. 26.5). This is slightly more informative than the standard phrase suggested to ILPA (‘records show’).36 There is no case law as yet challenging refusal of entry clearance on the basis of biometric information, but there are two Tribunal cases concerning Eurodac, which provide useful insights. The Tribunal in YI (Previous claims – fingerprint match – EURODAC) Eritrea [2007] UKAIT 00054 held that the immigration

35

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SD (para 320: findings desirable) Pakistan v SSHD [2009] UKAIT 00021 where the tribunal held that where a para. 320 reason was totally erroneous, the immigration judge should still state their reasoning and make a finding to this effect. Otherwise an ECO who had erroneously relied on para. 320 might feel fortified in re-using it to refuse a second application. Minutes of UKBA International Group User Panel 21st May 2008 (on file with Immigration Law Practitioners Association).

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judge had been right to require evidence over and above a bare assertion of a match to prove that the fingerprint records established that the claimant had made a previous claim for asylum in Italy. A photograph of the person who supplied the prints said to be matched by the claimant’s, would perhaps have sufficed. The immigration judge expected to have been told their name and nationality, and to be given some general evidence about the reliability of the Eurodac system and how it operated (YI para. 15). The assertion of a match was made in an email and no other information was provided. It seems that the tribunal was encountering precisely that phenomenon one anticipates with technological records, that they are treated as standing for themselves. This is not an adequate evidential basis for a decision. The later case, RZ (Eurodac – fingerprint match – admissible) Eritrea [2008] UKAIT 00007, showed that where more detail is given, it is extremely difficult for the claimant to challenge the accuracy of fingerprint evidence. The case confirmed that fingerprint evidence can be challenged, but rejected the claimant’s argument that a fingerprint match should be treated as an allegation of fraud which would engage a higher standard of proof. The standard of proof was the balance of probabilities, though the burden of proof was on the Secretary of State to show the accuracy of the match. The system as described in evidence was that a match identified electronically was validated on visual inspection by a fingerprint expert. There had been one false match since Eurodac had been set up, identified by the visual inspection. The tribunal held that the safeguards were such that evidence of a fingerprint match identified by the Eurodac system and confirmed by the Immigration Fingerprint Bureau should be regarded as determinative. Any conclusions about the reliability of this process are relevant for our subject as the same procedure is used to match fingerprints in entry clearance cases.37 Though the Tribunal showed confidence in the process, others have voiced doubts about it.38 YI and RZ confirm that the accuracy and evidential weight of fingerprint evidence is susceptible to challenge, and there is no reason to make a distinction in this respect between Eurodac and entry clearance. The burden of proof on the Secretary of State may be easily discharged by providing full information about the match and the process which produced it. The practical difficulty of challenging a match is considerable, but the weight to be attached to it is still an open question.

37 38

UK Border Agency International Group, Entry Clearance Guidance para. 26.5. Lord Avebury in Parliament has referred to the doubts surrounding the reliability of fingerprint evidence and the problem of false matches: HL Hansard 30th October 2006 Col. GC21.


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Appeal rights A history of the development of appeal rights is beyond the scope of this essay, but recent changes in appeal rights greatly intensify the impact of entry clearance as an extraterritorial control. In the UK system there has been a dramatic change in 2008/9 in entry for work and study as the technological developments discussed above go hand in hand with changes in the substantive law and removal of appeal rights. The substantive law changes are part of the change to a pointsbased system for entry for work and study. The government’s claim for the pointsbased system is that it is based on objectively ascertainable criteria which minimise the scope for human judgment and discretion. Management systems and new technology are claimed to bring decision-making to a very high standard so that there is no need for appeals.39 Accordingly, section 4 Immigration Asylum and Nationality Act 2006 abolished the right of appeal against certain entry clearance decisions, except on human rights or race discrimination grounds. From 1 April 2008 this section came into force for applications within the points-based system. Consequently, all applicants to enter the UK for work or study are now without a right of appeal. Such a sweeping abolition of appeal rights was not entirely without precedent, in that the right of appeal against refusal of entry clearance for visitors was removed by the Asylum and Immigration Appeals Act 1993. Protests at the effect on visitors to settled families resulted in the reinstatement of a right of appeal for visits to family members,40 but other visitors remain without a right of appeal. Broadly speaking, the only full rights of appeal remaining against refusal of entry clearance are for family related reasons, e.g. marriage, family visits, dependent relatives. These decisions may be appealed on the grounds in s.84 of the Nationality Immigration and Asylum Act 2002, set out later in this chapter. The removal of appeal rights is buttressed by commercialisation and bureaucratisation which increase technical access to the system, but reduce contact with decision makers. For instance, the UK Border Agency has contracted with commercial organisations to provide Visa Application Centres (‘VACs’) at which applications can be received, fees paid and information given. Applications are still decided by the visa section of the UK Border Agency. VACs cannot give advice or decide applications, though they can advise what kinds of documents should be submitted.41 39

40 41

E.g. HL Debs 7 Feb 2006 col. 534, Baroness Ashton of Upholland. For a critique of the pointsbased system see Helena Wray, “The Points-based System: A Blunt Instrument?” Journal of Immigration, Asylum and Nationality Law 23 (2009): 231–251. Sections 59 and 60 of the Immigration and Asylum Act 1999. The benefit of these centres is that they go some way to addressing a longstanding problem of the difficulty of travelling to entry clearance posts to make an application. See for instance the arduous journeys described in a UKIAS report, quoted by Juss 1997, 73.

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In parallel with VACs, there is a move towards visa applications being made online. Receiving the application electronically presumably facilitates data transfer within the UK Border Agency, though such a system is also subject to a new set of reasons for delay and applications going missing, as shown by not infrequent web announcements concerning system problems.42 The application must still be printed out and submitted on paper, and the applicant must still attend either a visa section or VAC to give their fingerprints and have a digital photograph taken. Applicants for work and study are advised to complete an online self-assessment to assess in advance whether they will qualify for entry clearance and find out what information is required. In the substantive terms of the points-based system, the reduction of discretion is achieved, to the extent that it is, by removing judgments which formed part of the earlier immigration rules such as whether the applicant intends to return home at the end of their period of leave. Objective measures such as whether an individual has the stipulated amount in their bank account for the stipulated period replace judgments of ‘adequacy’. In the new system for students, the majority of criteria are rolled up in one requirement, for a ‘visa letter’, and a fixed number of points is awarded for this, with the risk that for a minor error on the face of the letter, the application is refused and the fee is wasted. ILPA comments that an inflexible immigration rule looks simple and easy to apply. However the rule and its administration are arbitrary and bureaucratic. This will promote litigation, which leads to piecemeal correction – whether by administrative concession or the development of legal precedent in case law.43

The Home Affairs Committee advised against removing all scope for judgment, and it is arguable that to do so is impossible. The first judicial review of the merits of a decision in the Highly Skilled Migrants Programme demonstrated that assessing evidence against criteria is still a matter of judgment.44 The right of appeal against refusals of entry clearance for work or study is replaced by ‘administrative review’, conducted by an Entry Clearance Manager who was not involved in the original decision. The applicant may only claim that ‘a mistake has been made’ relating to a specified criterion within a specified category of leave.45 There is no facility for requesting sight of the evidence, or to 42

43 44 45

For instance: “Some users may be experiencing problems in accessing Visa4UK after last weeks maintenance (27–29 May 2009)” http://www.ukvisas.gov.uk/en/aboutus/newsroom/?view= News&id=18704660 (previously accessed, 5 June 2009). ILPA’s response to consultation on Simplifying Immigration Law, 29 August 2007, para. 6. R (Yousaf v SSHD [2009] EWHC 1006 (Admin). Notes accompanying administrative review application form on the UKBA website. http://www .ukvisas.gov.uk/resources/en/docs/1903073/pbsadminreviewguidance (accessed 4 November 2009).


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cross-examine.46 The only method of legal challenge is judicial review – a daunting and expensive task for an applicant abroad. The only other avenue open to a disappointed applicant is to apply again and pay another fee. All UK entry clearance applications are affected by the compulsory application of biometrics and the export to entry clearance posts of the decision on leave to enter. In relation to work and study, there are substantial additional difficulties in the way of accessing legal guarantees, both in relation to process and outcome, which are generated by the bureaucratised process and criteria of the points-based system and the removal of rights of appeal. These combine to produce a system that may be efficient and quick when it works, and opaque, unfair and unchallengeable when it does not. Human rights and entry clearance There is a statutory right of appeal under section 84 of the Nationality Immigration and Asylum Act 2002 against refusal of entry clearance on race discrimination or human rights grounds, and this is not excluded for any applicant, even those whose rights of appeal on other grounds have been removed as discussed above. The substantive Articles of the European Convention on Human Rights are given effect in UK law by the Human Rights Act 1998, and the majority of human rights appeals against entry clearance are brought using Article 8, where an applicant is refused entry clearance to join family members in the UK. Although the Asylum and Immigration Tribunal has sought to argue that Parliament made a mistake when it granted a human rights appeal against refusal of entry clearance,47 this view has not been taken up widely or by the higher courts. Challenges to refusal of entry clearance on human rights grounds continue to be brought,48 and before the House of Lords in Chikwamba v SSHD [2008] UKHL 40 it was regarded as uncontroversial that an Article 8 challenge would be available if the appellant was refused entry clearance. The Tribunal was of course right to say that the creation of a right of appeal as a procedural matter cannot create a substantive right for it to bite on. In applications to join a family member in the UK the question of whether there is a substantive right is answered by considering whether there is family life, and whether the right to respect for it is engaged by a refusal of entry. The first

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The careful analysis by Brouwer of sources of law which might compel a fair process at this point do not bite on UK entry clearance decisions as the UK is not a Schengen member. See Evelien Brouwer, “ ‘Effective Remedies in Immigration and Asylum Law Procedures: A Matter of General Principles of EU Law’ ”, in Whose Freedom, Security and Justice? EU Immigration and Asylum Policy, ed. Anneliese Baldaccini, Elspeth Guild and Helen Toner (Oxford: Hart, 2007). Most fully in Rev Sun Myung Moon v ECO Seoul [2005] UKIAT 00112. E.g. AM (Ethiopia) v SSHD [2008] EWCA Civ 1082.

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question is usually easily answered.49 A properly contracted marriage constitutes family life whether or not the parties have yet lived together.50 Family life generally exists between parents and minor children and this is still the case if a child has been left behind in a family migration.51 Respect for family life may require that a visit can take place.52 It does not necessarily entail accepting a married couple’s choice of residence, but requires the decision-maker to consider whether it is reasonable in all the circumstances to expect the couple to live elsewhere.53 The decision is subject to the public interests in Article 8.2, which may, if necessary and proportionate, outweigh the respect for family life. In the UK the higher courts have developed a humane approach to these questions, though this has not always been followed by the tribunals.54 In the case of a human rights appeal against refusal of entry clearance based on other rights, the existence of right may be more difficult to establish. In SSHD v Farrakhan [2002] Imm AR 447, the Secretary of State had refused entry to Louis Farrakhan, a leader of the Nation of Islam, on the grounds of feared public disorder because of his reputation for racially inflammatory speech. The Court of Appeal held that where an immigration decision had the incidental effect of preventing the applicant from exercising their freedom of expression in the UK, Article 10 was not engaged. Where the decision was taken in order to prevent the person from enjoying the right which formed the basis for their application to enter, then the right was engaged, though Article 10.2 might still justify exclusion. The Convention rights do not include the right to work, nor for adults to study. Thus the human rights appeal will have very limited utility for disappointed applicants for work or study. The concern of the Tribunal in Moon was to avoid creating a right of entry based on Article 3. This is a more demanding question, though likely to arise rarely in practice. The UK immigration rules do not allow an application for entry for the purposes of human rights protection, and for this reason the statutory right of appeal would not arise (2002 Act section 88 (2)(d) ). Any right to protection would depend on the Human Rights Act or the ECHR itself. Even where no statutory right of appeal exists, under certain conditions the UK’s actions abroad may still engage the Human Rights Act (see Al-Skeini below).

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50 51 52 53 54

See numerous articles on the subject, e.g: Nicola Rogers, “Immigration and the European Convention on Human Rights: are new principles emerging?”, European Human Rights Law Review 1 (2003): 53. Abdulaziz, Cabales and Balkandali v UK (1985) 7EHRR 471. Sen v Netherlands (2003) 36 EHRR 7. E.g. Praengsamrit v ECO Bangkok [2002] UKAIT 02791. Huang v SSHD [2007] UKHL 11. E.g. Beoku-Betts v SSHD [2008] UKHL 39, Chikwamba v SSHD [2008] UKHL 40 and EB (Kosovo) v SSHD [2008] UKHL 41.


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Noll55 considers that the ECHR has the capacity to create a freestanding right of entry for human rights reasons, though the obstacles in the way of finding such a right are considerable. In acute situations of risk, embassies may provide diplomatic protection, but the circumstances in which the issue of a visa was the necessary remedy to avoid a breach of Article 3 would be rare indeed. Such an act moves into the arena of positive rather than negative obligation, usually only found when the state has control over the conditions which generate the inhuman and degrading treatment.56 Thus the construction of the right will often mean that the obligation to protect is not actually engaged. These issues are visited again in relation to juxtaposed controls.

3. Juxtaposed controls This form of extraterritorial immigration control has a much shorter history than entry clearance. Juxtaposed controls are ‘a reciprocal arrangement between countries whereby each country carries out frontier controls in the other country prior to the commencement of the inward journey’.57 In other words, the British authorities exercise British law in France and Belgium, and vice versa. Macdonald succinctly says that juxtaposed controls ‘deem parts of Europe [sic] as [UK] ports of entry for immigration control purposes’.58 This arrangement has given rise to questions as to whether the sovereignty of each country is affected, and within what limits each exercises jurisdiction in the territory of the other. Oduntan concludes that the idea of a threat to sovereignty is ‘fanciful’.59 The arrangements between the governments are by consent and international agreement. However, Oduntan identifies many other difficulties, including most relevantly for present purposes, issues of conflicts of laws and consequent uncertainty in the protection of rights of individuals caught up in juxtaposed controls. Their legal foundation

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Gregor Noll, “Seeking Asylum at Embassies: a Right under International Law?”, International Journal of Refugee Law 17 (2005): 542. Alastair Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford: Hart Publishing, 2004), and see Pretty v UK (2002) 35 EHRR 1, Osman v UK (2000) 29 EHRR 245. UK Immigration Service, Regulatory Impact Assessment concerning the Proposal to introduce a new juxtaposed immigration control at Dover, Calais, Dunkirk and Boulogne, undated, http://www.homeoffice.gov.uk/documents/ria-new-immigration-control?view=Binary (accessed 4 November 2009). Ian Macdonald and Ronan Toal, Macdonald’s Immigration Law and Practice (London: Lexis Nexis, 2008) 7th edition, 143. Gbenga Oduntan, “Arriving before you Depart: Separating Law, Fact and Fiction in the Development of Juxtaposed Control Zones” in Migration, Diasporas and Legal Systems in Europe, eds Werner Menski and Prakash Shah (London: Cavendish, 2006).

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is a series of international agreements, implemented in the UK by dozens of acts of domestic primary and secondary legislation. A brief outline of the development of juxtaposed controls, and their complex legal structure will show how conflicts and lacunae arise.60 The Channel Tunnel controls The first juxtaposed controls were a development of the Channel Tunnel project. By the Treaty of Canterbury,61 the governments of France and the UK authorised the construction of the Channel Tunnel. This included the broad basis of agreement for each country to operate its laws in the territory of the other within a defined area relating to the operation of the rail link between the two countries. A further agreement between France and the UK, establishing the detailed principles of and authorisations for juxtaposed controls, was made before the Tunnel opened. This was the Sangatte Protocol,62 which entered into force in 1993. Within the UK’s legal system, the Channel Tunnel Act 1987 gave effect to the Treaty of Canterbury. Detailed provision for juxtaposed controls, relating not only to the Tunnel but also to termini on the through rail service, continues to be made in delegated legislation under that Act. The first such provision,63 the ‘1993 Order’, gave effect to the Sangatte Protocol and provided for UK officials to carry out their functions in a ‘control zone’ in France, and French officials to carry out their functions in a control zone in the UK.64 The functions that they carried out were ‘frontier controls’, not, prior to this, a term of art in UK law. They are defined as police, immigration, customs, health, veterinary and phytosanitary, consumer protection, and transport and road traffic controls, as well as any other controls provided for in national or European Community laws and regulations.65

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Such lacunae were also a concern of Lord Ave bury in the debate on extending powers to private contractors, HL Hansard 30 Oct 2006: column GC21, see below. Treaty between the French Republic and the United Kingdom of Great Britain and Northern Ireland concerning the Construction and Operation by Private Concessionaires of a Channel Fixed Link, done at Canterbury on 12 February 1986 Crn 1827. Protocol between the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning Frontier Controls and Policing, Co-operation in Criminal Justice, Public Safety and Mutual Assistance relating to the Channel Fixed Link, Cm 2366, signed at Sangatte on 25 November 1991. Channel Tunnel (International Arrangements) Order 1993 SI 1993/1813. The Articles of the Sangatte Protocol are called in the Order, ‘International Articles’. Article 4.1: All frontier control enactments shall for the purpose of enabling officers belonging to the United Kingdom to carry out frontier controls extend to France within a control zone. 1993 Order schedule 2 Article 1.2.


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Control zones are: ‘the part of the territory of the host State determined by mutual agreement between the two Governments within which the officers of the adjoining state are empowered to effect controls’.66 The first juxtaposed controls were operated at each end of the Tunnel itself, British controls at Calais Fréthun in France, and French controls at Cheriton near Folkestone in the UK. These are the entry and exit points for road vehicles which travel through the tunnel on shuttle trains. The concern with preventing the use of road vehicles by clandestine migrants, who stowed away in containers and lorries, predated the Channel Tunnel, but the opening of the Tunnel was seen to create new opportunities for such illegal passage.67 The Sangatte Protocol allows for ‘frontier control enactments’ of each state to have effect in the control zone in the other. Frontier controls of the State of departure are to be effected before those of the State of arrival (Article 12). The laws and regulations relating to frontier controls of the adjoining State are applicable in the control zone in the host State, and are to be applied by the officers of the adjoining State in the same way as in their own territory (Article 9). The officers of the adjoining State are permitted to detain or arrest people in the control zone in accordance with the laws relating to frontier controls of the adjoining State, and to conduct such people to the adjoining State (Article 10). However, when an offence is committed, the State in whose territory it is committed is to have jurisdiction (Article 38). Therefore the host state has jurisdiction in non-frontier control criminal matters, and the non-territorial state in frontier matters including criminal offences. Oduntan points out that the host state may be put in the position of having to countenance on its territory a process that would be a breach of its own standards. Juxtaposed controls on Eurostar The 1993 Order also allowed for frontier controls to be carried out on Eurostar through trains,68 so that immigration officers of each country could operate on board. An agreement in very similar terms to the Sangatte Protocol was reached between the UK, France and Belgium for non-stopping

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1993 Order, International Articles Article 1(2)(g). Article 2d of the Le Touquet Treaty is to the same effect. In this respect, juxtaposed controls at Channel Tunnel ports followed on from the Carriers Liability Act of 1987, which had imposed a regime of civil penalties on carriers and drivers who were found to have stowaways in their vehicle. 1993 Order, International Articles Article 7.

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trains between the UK and Belgium,69 though this was not implemented until December 1997.70 Initially, controls were not operated at Eurostar stations, and railway companies had no power to check documents before passengers boarded the trains. Ryan relates how an increase in 1998 in undocumented arrivals and asylum claims at Waterloo in particular precipitated a further development.71 An Additional Protocol was agreed between the UK and France, and foot passengers taking the Eurostar train became subject to juxtaposed controls, authorised in the railway stations of London-Waterloo, London-St Pancras and Ashford on British territory, and Paris-Gare du Nord, Calais Fréthun, and Lille-Europe on French territory.72 Waterloo has since been deleted and Ebbsfleet International added as a result of changes to the Eurostar route.73 Juxtaposed controls were completed on Eurostar trains in 2004, with an agreement between the UK and Belgium, enabling controls to operate on stopping trains between the two countries, and at the railway stations, including the Gare du Midi in Brussels.74 The content of this agreement was similar to that of the Additional Protocol, though it is not a treaty but an ‘administrative arrangement’ to which France is also a signatory. The Eurostar controls were of a different kind from the first Channel Tunnel controls. These were not multi-purpose frontier controls, concerned with customs and health issues, but were focused only on immigration, and gave effect to ‘immigration control enactments’ in control zones. The purpose of controls exercised by the state of departure was ‘to check whether the person can leave its territory’ and by the state of arrival ‘to check whether the person is in possession of the necessary travel documents and fulfils the other conditions for entry to its territory’.75 Thus the immigration controls exercised by the state of departure would not deal with any claims that the person had to enter the destination state, but only with matters already outstanding against the traveller. Claims for entry were to be dealt with by the state of arrival. This alone would not have met the 69

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Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the Kingdom of Belgium and the Government of the French Republic concerning Rail Traffic between Belgium and the United Kingdom using the Channel Fixed Link Cm 3954. By the Channel Tunnel (Miscellaneous Provisions) Order 1994 SI 1405. Bernard Ryan, “The European Dimension to British Border Control” Immigration Asylum and Nationality Law 18 (2004): 8. Additional protocol to the Sangatte protocol, Cm 5015, implemented in the UK by the Channel Tunnel (International Arrangements) (Amendment no. 3) Order 2001 SI 1544. Channel Tunnel (International Arrangements) (Amendment) Order 2007 SI 2907. Channel Tunnel (Miscellaneous Provisions) (Amendment) Order 2004 SI 2589. Additional Protocol, Article 3, as appended to the 2001 Order.


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UK’s specific interest in preventing asylum seekers from reaching the UK through the Tunnel. The Additional Protocol accordingly provided for claims for refugee status to be processed in the state of departure76 if made at any time ‘before the train doors close at the last scheduled stop at a station located in the territory of the State of departure’.77 The responsibility for receiving asylum claims was thus imposed, by agreement, on France in the case of travel by Eurostar to the UK. This provision does not appear in the agreement with Belgium. The UK’s implementing Order provided that a person who attempted to board a train would be treated as seeking to arrive in the UK.78 This effect of this is that a person making such an attempt without proper documentation can be treated as an illegal entrant in UK law.79 The application of juxtaposed controls to Eurostar stations more visibly placed UK immigration officers abroad. This arrangement was enabled additionally in UK law by the Immigration (Leave to Enter and Remain) Order 2000, discussed in the earlier part of this chapter, enabling immigration officers abroad to grant or refuse leave to enter. Juxtaposed control at sea ports Following its beginnings with rail transport, juxtaposed control was extended to sea ports. This was part of a plan of co-operation between French Interior Minister Nicolas Sarkozy, and British Home Secretary David Blunkett80 to speed up the harmonisation of EU asylum standards and procedures, and reduce illegal immigration. In particular the plan included steps to effect the closure of the Red Cross Centre at Sangatte near to the Channel Tunnel, which had provided a point of departure for attempts to enter the UK.81 Following informal agreement in 2002, British immigration officers began working alongside French border police in Calais. In 2003, a Treaty was agreed at Le Touquet between the UK and France ‘concerning the implementation of frontier controls at the sea ports of both countries on the Channel and North Sea’.82 Provisions of the Nationality, Immigration and

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Ryan notes that this was part of the UK’s agenda op. cit. p. 11. Additional protocol, Article 4. Channel Tunnel (International Arrangements) (Amendment no. 3) Order 2001 SI 1544 Article 3. Immigration Act 1971 s. 33. For the avoidance of doubt, the 2003 Order added “whether or not he has arrived in the UK”. Joint communiqué issued by M. Sarkozy and Mr David Blunkett, Paris 26 September 2002. Phuong discusses whether this agreement and closure represents a success of the Common European Asylum System or a failure. See Catherine Phuong, “Closing Sangatte: the legal implications of the asylum dispute between France and the UK”, Journal of Immigration, Asylum and Nationality Law 17 (2003): 157. Cm 5832, in force on 1 February 2004.

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Asylum Act 2002 and associated reforms demonstrated the UK’s performance of its side of the bargain to strengthen its border and reduce alleged ‘pull’ factors.83 These included the statutory basis to implement juxtaposed control at EEA ports, which allowed orders to be made providing that ‘a law’ of England and Wales may have effect in a specified area outside the UK.84 Such an order gave effect to the Treaty,85 and juxtaposed controls were authorised at sea ports in Dover, Calais, Boulogne86 and Dunkirk. The Frontier Control (Le Touquet) Treaty authorised only the exercise of powers ‘concerning immigration controls and the investigation of offences relating to immigration’.87 Thus the sea port controls, like those at the Eurostar terminals, are concerned only with immigration, and not with health or customs. The 2003 Juxtaposed Control Order is the basic text in UK law establishing sea port juxtaposed controls in France, and unlike the 1993 and 2001 Orders for rail control zones, lists the enactments which are to have effect in a control zone. This makes the legal regime for sea port control zones more limited and more explicit. The purpose is ‘enabling immigration officers to exercise immigration control in a Control Zone in France’ (2003 Order Article 11). Further enforcement powers have been added to the list of enactments in the 2003 Order: to take fingerprints from someone who fails provide a valid passport, and making the new offences of absconding from detention, obstructing and assaulting a designated officer applicable.88 However, the list of statutes does not include the Nationality Immigration and Asylum Act 2002, which sets out the UK’s immigration appeal regime. The Race Relations Act 1976 and Data Protection Act 1998 are applied, but there is no reference to the Human Rights Act. The implications of the omission of the 2002 Act and Human Rights Act are discussed below. In any case in which the officers of the destination state refuse admission to a traveller, the state of departure may not refuse to accept them back.89 This would apply in cases of any irregularity, lack of documentation or asylum claim. Similarly to the Eurostar controls, Article 9 of the Frontier Control Treaty 83

84 85

86

87 88

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For instance ending the concession which allowed asylum seekers to work if their claims had not been decided within six months, see e.g. ‘Blunkett to stop migrants working’ Independent 23 July 2002. Nationality, Immigration and Asylum Act 2002 s.141. Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003, SI 2003/2818, coming into force the same day as the Treaty. Though at this port the power has only intermittently been used as the ferry service itself has been intermittent. Le Touquet Treaty Article 2a. Nationality Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2006 SI 2908. Le Touquet Treaty Article 7.


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provides that if a person makes an asylum claim, or any other claim for protection which could be available in the state of departure, before the vessel in which they travel leaves the port, they must make that claim in the State of departure. This is the exception to the rule that once the state of arrival has commenced its enquiries, the state of departure has no further part to play. Asylum claims in control zones As noted above, the UK pressed for the state of departure to take responsibility for asylum claims when juxtaposed immigration controls were introduced at Eurostar terminals, and this was effected with France, though not Belgium. A major objective of juxtaposed controls is to prevent entry to the UK, not only illegal entry but also entry to make an asylum claim. This is considered supportable because France and the UK are both part of the Common European Asylum System and bound by the Refugee Qualification Directive 2004/83 and the Standards and Procedures Directive 343/2003. Under the Dublin Regulation, a Member State where an asylum seeker has family already is given pre-eminence in the hierarchy of criteria for determining which state is responsible for examining the asylum application.90 The regulation is directly effective and binding on all Member States.91 Nevertheless, the juxtaposed control measures make no explicit provision for decisions to be taken within the EU measures on asylum. An asylum seeker with family in the UK, but turned back to the French authority to make their claim, would be required to await the French authority’s request to the UK to transfer them, and the UK’s acceptance of responsibility under the Dublin Regulation. The UK Border Agency reported that the number of undocumented passengers arriving at Waterloo fell by 90% after the introduction of juxtaposed controls on Eurostar services.92 What is not known is how many of these people were would-be asylum seekers and what has happened to them. There is no follow-up to determine whether people claimed asylum in France, whether they were successful, whether they were found to have Dublin Regulation approved reasons for claiming in the UK and their claim transferred there, whether they remained as undocumented in France and with what consequences, or any other outcome. In the most recent published immigration statistics in the UK,93 the figure for 90 91

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Council Regulation 2003/343/EC Article 7. Therefore it indisputably takes precedence over incompatible domestic provisions. A question beyond the competence of this chapter would be its relationship with the international treaty. Regulatory Impact Assessment for Juxtaposed Controls at Dover, Calais, Dunkirk and Boulogne sea ports. Home Office, Control of Immigration: quarterly statistical summary, United Kingdom – first quarter 2009, Tables 7a and 7c.

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‘enforced removals and notified voluntary departures’ of principal asylum claimants includes a ‘small’ but unquantified ‘number of cases dealt with at juxtaposed controls’. Statutory appeals Where a person is refused entry to the UK in a control zone because of for instance inadequate or false documentation, there are questions not only about the efficacy but also about the existence of any right of appeal. Questions that may be posed include: what immigration decisions are actually made in a control zone? Is there a right of appeal against such decisions? Is any such right in practice exercisable? Decisions made clearly include the grant or refusal of leave to enter. Other decisions which could be made are cancellation of leave to enter where the traveller has an existing entry clearance, and revocation of indefinite leave. Refusal or grant of asylum or human rights protection will not be made by the UK in a control zone in France as these are referred back to the French authorities. An important difference between a refusal of entry once on UK territory and a refusal of entry in a control zone is the lack of opportunity for challenge. Furthermore, there appear to be significant differences between rail and sea ports. At Channel Tunnel sites the Sangatte Protocol applies ‘frontier control enactments’, the Belgian agreement applies frontier controls and the Additional Protocol applies ‘immigration control enactments’ in the control zones in Eurostar stations. These terms appear in the implementing orders. The Nationality Immigration and Asylum Act 2002, the source of immigration appeal rights in the UK, comes within these definitions and so does apply in rail control zones in France and Belgium. However, it is not clear how such rights can be exercised in practice. Appeals against certain decisions that could be made in a control zone would, if made in the UK, attract an in-country right of appeal. For instance, a person who holds entry clearance which functions as leave to enter can have their leave cancelled by an immigration officer on entry. An appellant who arrived in the UK and had their leave to enter cancelled would have an in-country right of appeal if the entry clearance is for the same purpose as the proposed leave (2002 Act s.92 and s.89). Others who would usually have an in-country right of appeal would include those whose indefinite leave is revoked. In the case of juxtaposed controls not only is there the question of whether the traveller will be allowed to travel to the UK to exercise this right of appeal, but also there is a difficulty about their status in the meantime. In the UK, a person whose indefinite leave is revoked has that leave continued pending any appeal by s. 3D of the Immigration Act 1971. However, this continuation of their leave lapses if they leave the UK.


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What about if they have been stopped from re-entering? A person with indefinite leave may have been a UK resident for many years. It is clearly right in principle that such a person should have an in-country right of appeal, and neither they nor the holder of entry clearance should be deprived of it by the mere accident of entering through juxtaposed controls instead of say, arriving by air. Much difficulty and litigation could be avoided by granting the person permission to travel to the UK to exercise an in-country appeal right, but no provision seems to be made for this. Against a refusal of entry, cancellation of leave to enter, revocation of indefinite leave, or any other immigration decision, an appeal may be brought on grounds that the decision (a) is not in accordance with the immigration rules; (b) is unlawful by virtue of section 19B of the Race Relations Act 1976; (c) is unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights; (d) breaches the appellant’s rights under EC Treaties in respect of entry to or residence in the UK; (e) is otherwise not in accordance with the law; (f ) or that the person taking the decision should have exercised differently a discretion conferred by the immigration rules (2002 Act section 84). These rights of appeal are not available in the UK to a person without entry clearance, and the same exclusion of course applies in a control zone (s.89(1) Nationality Immigration and Asylum Act 2002). A rewording of that section in 2006 may have implications for appeals in control zones. The section now provides that a person may not appeal against a refusal of leave to enter unless ‘on arrival in the UK’ he had entry clearance which was issued for the same purpose as that for which he now seeks leave. This does not refer to a returning resident, for whom the position is as above.94 Refusal of leave in this section refers to cancellation of leave that was granted abroad, i.e. in general people arriving newly for the present purpose.95 The object of section 8996 was to exclude from appeals those who did not have entry clearance. The words ‘on his arrival in the UK’ seem in context to be intended to refer to the moment of presentation to immigration officials. If they are read so as to require arrival also on UK territory, 94

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Such a person’s leave is continued by Immigration (Leave to Enter or Remain) Order 2001 (SI 2001 No 1161) Article 13 and does not need leave to enter. Immigration Act 1971 Schedule 2 para. 2A applies to those whose leave was granted ‘before arrival’, and para. (9) provides that cancellation of such leave after examination at the port is treated as refusal for the purposes of the appeals provisions of the 2002 Act. Both originally and as substituted by section 6 Immigration Asylum and Nationality Act 2006.

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the effect is to exclude appeals at juxtaposed controls for those who are newly arriving, even with leave already granted, except on EEA, human rights and race discrimination grounds. Such exclusion would more properly be achieved by an express rather than incidental provision. Nevertheless, if litigation were ever possible on this subject, it needs clarification. In rail control zones a human rights appeal is available against refusal of entry, revocation of indefinite leave, and so on, and arguments based on the person’s right to respect for their family life in the UK may be raised. As discussed earlier in relation to human rights appeals against entry clearance, where there is an established family life in the UK, the engagement of Article 8 is uncontroversial. Where the person wishes to enter to exercise another qualified right, the approach in Farrakhan will be required. A developing question is whether long residence in a country but without family relationships of itself generates a private life which must be respected. Recent case law of the European Court of Human Rights suggests that it does; for instance in Maslov v Austria application 1638/03: ‘the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article 8’. This would be relevant to a UK resident whose leave was revoked in a control zone. The Additional Protocol’s requirement for claims for international protection to be made to the state of departure is not inconsistent with the availability of human rights appeals against immigration decisions made by the destination state. UK appeal provisions complement the treaty provisions which require international protection claims to be made to the state of departure. In UK law, an asylum appeal is one which claims that removal from the UK in consequence of an immigration decision would breach the Refugee Convention (2002 Act section 84(1)(g) ). Section 95 of the 2002 Act excludes appeals against removal on asylum and human rights grounds where the person who is the subject of the decision is outside the UK. In any event it seems that being handed over to the departure state authorities does not amount to removal. Amendments to the 1971 Act made by the 2003 Order include the replacement of a reference to ‘removal’ by ‘the taking of any action in respect of [a person refused leave] pursuant to any request made to the competent French authorities…’ .97 The 2003 Order treats arrival in a control zone as arrival in the UK for the purpose of calculating the period of validity of a visa,98 but the arrival is of a nature which entails presenting oneself for processing by a system, not physical presence on a

97 98

2003 Order Schedule 2 para. 1(3)(f )(a). Through amendments made to the Immigration (Leave to Enter and Remain) Order 2000 by 2003 Order Schedule 2 para. 4.


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territory.99 Thus, in a control zone there is no removal, and if there were, appeal on asylum or human rights grounds would be excluded by section 95. To summarise, claims for protection may not be made to the UK authorities in a rail control zone in France (with a possible caveat in cases of immediate danger), but appeals against immigration decisions on entry may be made on human rights grounds. The UK authorities have not yet made provision for a passenger to be given leave to enter the UK to pursue their right of appeal in cases where an in-country right would normally be granted, and section 89(1) may exclude appeals altogether for new arrivals on grounds of UK rules and general law. In sea port control zones the traveller’s rights are curtailed further. The general principle of applicability of laws is stated in the Le Touquet Treaty in the same terms as in the Sangatte Protocol but in its UK implementation, in place of the inclusive phrase ‘frontier control enactments’ or ‘immigration control enactments’ the applicable statutes are listed in the 2003 Order, and do not include the 2002 Act. The omission of this Act results in enforcement powers being effective in sea ports, but not appeal rights. For instance, a person whose entry clearance functions as leave to enter can still have that leave cancelled on entry, as the powers to cancel are contained in provisions which do have effect in control zones.100 The same provision101 treats cancellation of leave to enter as an appealable decision under the 2002 Act but the 2002 Act does not apply to deliver that appeal (or to prevent it under s.89!). In the case of sea port refusals the problem is not the lack of mechanism to exercise a right of appeal but rather that there is apparently no right of appeal at all. If these observations are correct, serious consequences follow from the form of transport used to travel to the UK: by air – full rights of appeal; by rail – theoretically full rights of appeal for returning residents, and full or partial, depending on s.89, for new arrivals, but no apparent means to exercise them incountry; by sea – no appeal. Such distinctions are arbitrary. The obligation not to discriminate on grounds of race, contained in section 19B of the Race Relations Act 1976, is given effect in sea port control zones. Thus although access to enforcement of this legal guarantee remains problematic, a challenge on race discrimination grounds is permitted by the legal structure. The proper forum would presumably be the English High Court in judicial review proceedings. The Immigration (European Economic Area) Regulations 99

100

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Shachar discusses this kind of non-physical border: the ‘reinvention’ of a ‘new regulatory regime of the shifting border’: op. cit., p. 170. Immigration Act 1971 schedule 2 para. 2A (2A) and Immigration (Leave to Enter and Remain) Order 2000 SI 1161 Article 13(7). Immigration Act 1971, schedule 2 para. 2A(9).

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2006 are also given effect in sea port control zones. These implement rights of appeal under European Community law, in particular as granted by the Citizens Directive 2004/38. Thus an EEA national refused admission would have a right of appeal notwithstanding the inapplicability of the 2002 Act, as would a third country national travelling to join an EEA family member who was exercising Treaty rights in the UK. These appeals are exercisable in-country where the person holds an EEA family permit, a registration certificate, or other document proving their residence in the UK, though again, access to this procedure does not seem to be catered for.102 In responses to a consultation on the implementation of sea port controls the Immigration and Nationality Directorate (as it was then) of the Home Office gave an assurance that ‘those passengers refused entry who have a right of appeal from abroad will be served with a notice of refusal which will include information about the Refugee Legal Centre and Immigration Advisory Service’.103 This does not actually say that there will be any such people, and no reference is made to in-country rights of appeal. There are clearly considerable practical obstacles in the way of exercising any appeal rights which do exist. The extent of the effect of these provisions is unknown, but the most recent UK immigration statistics show non-asylum removals [sic] from juxtaposed control zones as 2,245 in the first quarter of 2007, rising to 3,495 in the first quarter of 2009.104 Human rights and juxtaposed controls The final question is whether human rights law can complete a system of human rights protection in control zones, filling the gap in statutory provisions concerning immigration appeals, providing a basis for emergency protection, and providing an enforceable standard for the protection of human rights in relation to treatment within control zones. In relation to the absence of rights of appeal, and of effective access to appeal procedures where rights of appeal are theoretically available, the most far-reaching argument would be that the right of appeal itself is a human right, delivery of which should be assured within the Council of Europe. However, new ground would need to be broken within ECHR jurisprudence to provide any remedy. The established position is that Article 6, which encompasses the right of access to a court, does not apply to immigration matters on the basis that these are not civil rights (Maaouia v France (2001) 33 EHRR 42). It follows that, in the

102 103 104

Immigration (European Economic Area) Regulations 2006, Regulation 26. Note 92, op. cit., p. 146. Home Office, Control of Immigration: quarterly statistical summary, United Kingdom – first quarter 2009, Table 7b.


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current state of the law, neither the ECHR nor the Human Rights Act can supply non-human rights appeals against immigration decisions in sea port control zones, nor effective access to appeal procedures in any control zone. Where there are criminal matters, Article 6 applies to guarantee a fair trial, which would include access to representation and time to prepare a defence. A subject for study would be whether the divided jurisdiction and limited facilities in control zones can satisfy the requirements of Article 6 in relation to criminal matters. What of human rights infringed by immigration decisions taken in a control zone? Lord Bingham famously said in a challenge to a pre-entry scheme run by the UK in Prague Airport105 that the Human Rights Act did not apply to immigration officers acting abroad, but this comment was not binding as it did not form part of the reason for the judgment, and sits uncomfortably with the trend of authority since, that the Human Rights Act and the statutory appeal on a human rights ground apply to the decisions of entry clearance officers. Particularly since the creation of the UK Borders Agency it seems incoherent to distinguish the public law accountability of entry clearance officers from that of immigration officers acting abroad. Al-Skeini & others v Secretary of State for Defence [2007] UKHL 26 establishes that the Human Rights Act can apply to the acts of UK public authorities carried out abroad. Whether it does so in a particular instance depends upon whether the act took place within the UK’s jurisdiction, defined by reference to case law applying Article 1 of the ECHR. As ILPA has commented, the legal questions raised by protection of human rights in control zones have their readiest parallel in those arising from the actions of military personnel in Iraq,106 unlikely though this may seem at first sight. In Al-Skeini the House of Lords confirmed the decision of the lower courts that the Human Rights Act applied to the death of an Iraqi man (Baha Mousa) in British detention in Iraq. However, it did not apply to those whom British soldiers killed in the street in the course of patrols and searches. The House of Lords held that the Human Rights Act would extend to actions of British public authorities outside the territory of the UK, where the act in question was encompassed within the exceptions to the (primarily) territorial jurisdiction of Article 1 of the ECHR. These exceptions include acts of consuls on diplomatic premises, and a military detention centre was an even stronger case within that exception. In relation to those killed on the street, the House of Lords had to consider the question of whether, following ECHR case law,107 British forces had ‘effective control’ in that 105 106

107

European Roma Rights Centre v Immigration Officer, Prague Airport & SSHD [2004] UKHL 55. Response by ILPA, 28th July 2006, to Consultation Document: Private freight searching and fingerprinting at Juxtaposed Controls. Bankovic v Belgium (2001) 11 BHRC 435; Issa v Turkey (2004) 41 EHRR 567.

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situation. This entailed considering whether the soldiers had the capacity to ensure that rights were delivered, and concluding that they did not.108 In a control zone, this would be a matter to be determined. The control zone itself is not exclusively within the control of the UK authorities to the same extent as diplomatic premises or a detention centre but the requirement in Al-Skeini and preceding ECHR cases is not for exclusive control but for effective control. Arguably, in a control zone each state’s power to ensure that rights are delivered is reduced by the fact that the arrangement is one of shared control. Neither state has the capacity to insist on certain practices in the face of disagreement by the other. However, it is hardly conceivable that by their Treaty two signatory countries could have contrived a limbo outside the ECHR into which a person could fall. Al-Skeini¸ and ECHR cases on extraterritorial jurisdiction, are concerned with the application of the Convention outside the Council of Europe. The concept of the espace juridique, a critical element in the decision of the ECHR in Bankovic v Belgium (2001) 11 BHRC 435, is the idea that the Convention applies primarily within the geographical region of the signatory states. Of course there must be a respondent to an application, so responsibility cannot rest with the region generally. However, there are precedents for responsibility to be shared. On principle it seems that the ECHR would require responsibility for human rights protection within a control zone. As the treaties provide that not only asylum claims but all claims for international protection must be made to the state of departure, the clear intention is to exclude human rights claims against the state of arrival. In general terms and in most cases this is likely to satisfy the requirements of Article 3 and probably the Refugee Convention, although that is a question for further enquiry. The rare exception would be in the case of flight from the authorities of the state of departure. Noll’s theory, discussed earlier,109 could provide a basis for responsibility by the state of arrival in the rare case where a third country national feared a human rights violation by, or just conceivably in, the state of departure. Arrest and detention within control zones The main human rights questions, aside from immigration appeals, concern responsibility for delivering rights within a control zone; for instance, what a person should do if their human rights are breached by unlawful detention or assault.

108 109

Al-Skeini para. 79. Op. cit.


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In all control zones responsibility for frontier control matters including offences is allocated to the non-territorial state and jurisdiction over other criminal matters is allocated to the host state. However, the distinction between frontier control and other criminal offences may not be easy to draw in practice. Furthermore, the distinction between immigration detention and criminal detention is easily blurred. For example, an inspection by HM Inspector of Prisons of short-term non-residential immigration holding facilities in Calais and Coquelles discovered that ‘basic safety’ was ‘compromised by staff uncertainty as to their powers under French law to use force to intervene in fights, prevent escapes or stop attempts at suicide and self-harm’.110 Specifically, staff were expected to ‘intervene in cases of self-harm, assault and escape, but were told they should not use restraint except in self-defence, and they were not allowed to use handcuffs’.111 We might add that these centres, apparently carrying out the same function, are subject to two different legal regimes: Calais sea port – the Le Touquet Treaty and 2003 Order; Coquelles tourist and Coquelles freight – the Sangatte Protocol and 1993 Order. Article 5 of the Le Touquet Treaty provides that the authorities of the destination state may ‘arrest and hold for questioning’ anyone who is subject to examination, including, but not limited to, those who are suspected of a breach of immigration law. The Sangatte Protocol112 permits arrest and detention ‘in accordance with the laws and regulations relating to frontier controls of the adjoining state’. UK officers in a French control zone for example could detain a traveller pending a decision on entry or pending investigation of use of a false passport. Both Treaties limit detention to a maximum of 24 hours, though in exceptional circumstances it may be extended for a further 24 hours. 24 hours may include an overnight stay, and the inspection referred to above found that none of the three centres were equipped for this. This detention does not refer to detention for non-frontier related criminal matters. For these, UK officers in a control zone must call on the French police. In the UK, the Police and Criminal Evidence Act 1984 (PACE) and its extensive Codes of Practice govern the treatment of people by the police prior to a criminal charge being brought. Provisions cover for instance arrest, search, detention, seizure of property. There seems to be limited and piecemeal application of

110

111 112

HM Inspector of Prisons, Report on the unannounced inspection of three short-term non-residential immigration holding facilities: Calais Seaport, Coquelles Freight and Coquelles Tourist, France, 2–3 August 2005. Ibid., p. 7. Article 10, 1993 Order International Articles.

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PACE in control zones. The Borders, Citizenship and Immigration Act which completed its passage through Parliament in July 2009, contains provisions concerning the integration of customs and immigration functions and associated powers. This opportunity to apply PACE codes in control zones was missed. The Immigration and Asylum Act 1999 s.145 provides that immigration officers exercising powers to arrest, search, take fingerprints and seize property must have regard to such PACE codes of practice as may be specified. Codes of practice have not been revised to apply to control zones, although immigration officers in control zones have all these powers. The 2003 Order makes amendments to the Code of Practice for Examining Officers under the Terrorism Act 2000, but no reference to the PACE Code. The rights of those arrested and detained are limited by the fact that they are unlikely to be able to get access to legal advice and representation. The HM Inspector of Prisons report noted that detainees did not always understand the decisions to refuse entry to the UK. There were no notices in the holding room giving information about what might happen next.113 Decision documents apparently indicated whether there was a right of appeal, but did not say how to pursue this or get legal advice, nor how to challenge their detention. Where the names of the Refugee Legal Centre and Immigration Advisory Service were given, there was no information on how to contact them from France. In any criminal matter PACE also requires that a detained person be given an opportunity to contact a legal adviser and one other person, but at the time of the inspection in 2005 there was no telephone from which they could do this. Due to the divided jurisdiction, this applies in control zones to frontier-related criminal matters, but not others. PACE permits delay in access to a solicitor or in having another person informed of the arrest, on the authority of a Superintendent in defined and limited circumstances. This provision is applied by the 2003 Order if a person is taken to a French police station at the request of a British officer, but apparently not while they are in the control zone. It is obviously difficult for both detainees and officers to know when and whether legal advice must be arranged. Private contractors The concern with redress for actions in a control zone is exacerbated by the practice of contracting out public functions. The operation of short-term holding facilities was contracted out to private companies, as is the operation of immigration detention centres on UK soil. Staff at Calais Seaport told inspectors that they did not have authority to contact emergency services, for instance in a case 113

Note 110 op. cit., e.g in relation to Coquelles Freight at para. 2.22.


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of self-harm or suicide, but that such calls had to be routed through the immigration team,114 with obvious risks resulting from delay. The application of the Human Rights Act to private contractors has exercised the courts in a domestic context. Where the question is whether a private contractor may be regarded as a public authority for Human Rights Act purposes, the question is whether they are carrying out what is inherently a government function (YL v Birmingham City Council [2007] UKHL 27). As ILPA point out,115 the power to detain is a government function if only because, as a prime facie breach of human rights, no legal regime can in conscience authorize other than government (ultimately – even if contracted out) to take that decision. Privately run detention centres in the UK are beyond question public authorities for HRA purposes (R (on the application of D and K ) v SSHD [2006] EWHC 980 (Admin) ). The 2006 Juxtaposed Control Order extends to the French sea port control zones the power to authorize persons other than immigration officers to search ships, aircraft and vehicles to ascertain whether there are individuals whom the immigration officer might wish to examine, to search such persons for specified reasons, to detain such persons up to a maximum of three hours and to escort them as speedily as possible to an immigration officer.116 The acts of authorized private contractors are carried out, according to the 2003 Order ‘for the purpose of enabling immigration officers to exercise immigration control in a control zone’. Immigration control is almost a defining governmental function, and one could argue that the jurisdiction of the Human Rights Act may not be excluded from control zones neither for immigration officers nor private contractors. New technology Juxtaposed control too is enhanced by technology. Vehicles are searched before they go onto a ferry or onto freight rail lines, and searches are aided by new detection technology. Various devices have been used including thermal imaging and carbon dioxide detectors, though the so-called ‘heartbeat’ detector when applied to vehicles was reported as ineffective as unable to distinguish between vibration from a human source and vibrations from ships and trains.117 A scanner which used gamma rays to scan vehicles and produce an image which might reveal a human form was banned by the French government. These devices

114 115 116 117

Note 110 op. cit., para. 1.9. Note 106 op. cit. Applying sections 40 and 41 of the Immigration Asylum and Nationality Act 2006. David Harrison, “Immigrant detectors cost £4 million but have never worked”, Telegraph, August 6, 2006.

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deliver a small dose of radiation, and according to an EU health and safety regulation the consent of those inside would be needed.118 However, a new agreement has been reached between Britain and France, and £15 million has been invested in a pilot in Calais of the most up-to-date and advanced detection equipment.119

4. Conclusion The UK’s immigration law has for the last ten years in particular been marked by attempts to define immigration control as primarily a matter for the executive, and not susceptible to significant judicial scrutiny. The changes described above in the operation of entry clearance go further to endorsing this than could have been imagined at the time of the passage of the Human Rights Act in 1998. In relation to juxtaposed controls, an urgent task is to establish access to appeals from control zones, and effective legal advice for those refused entry and detainees. The UK’s adventures abroad into controlling migrants before they even arrive at British shores were, in a former time, conducted outside public scrutiny. Now, Parliament itself has placed many of those decisions outside judicial scrutiny, and the substance of juxtaposed controls continues to be made by ministerial orders with minimal Parliamentary input. In its reforms to entry clearance, the government displays faith in managerial and bureaucratic answers. In the case of juxtaposed controls, reliance seems to be placed on the physical authority of the extraterritorial location, compounded by lack of information, lack of procedures and complexity. In ironic contrast to the government’s claimed simplification project, the complexity of juxtaposed controls is staggering. The provisions discussed here are but a fraction of the detailed and voluminous treaties, orders and protocols. A lawyer can barely tell whether there is a right of appeal, let alone a lay person exercise it. This baffling complexity is itself a means of denying access to legal guarantees. When in opposition, the former Prime Minister, Tony Blair, opposed the removal of appeal rights from visitors, as recently as 1993. His reasoning was: When a right of appeal is removed, what is removed is a valuable and necessary constraint on those who exercise original jurisdiction. That is true not merely of immigration officers but of anybody. The immigration officer who knows that his

118

119

“Illegal immigrants spared the gamma-ray scanner: French ban Calais lorry probes” The Register 23 January 2008. UKBA press release: “New agreement with France on border controls” 7 July 2009.


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decision may be subject to appeal is likely to be a good deal more circumspect, careful and even handed than the officer who knows that his power of decision is absolute. That is simply, I fear, a matter of human nature, quite apart from anything else.120

The appeals system has changed radically since 1993, but human nature, of course, has not.

120

Commons Hansard, vol 213, col 43, 2 November 1992.

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Index Access to legal remedies Article 13 ECHR, 225–226 European Union, 13–14 restoration in context of extraterritorial controls, 35–36 United Kingdom, 10–12. 407–409 United States, 7 Albania, co-operation with Italy in relation to migration control, 293–296 Australia arrivals by sea, 28–31, 350–353 extraterritorial processing of protection claims, 29, 362–366 Indonesia, co-operation in relation to migration control, 353–356 interdiction at sea, 29–30, 360 ‘Pacific Plan’, 28–29, 356–369 Rudd Government policy, 29, 369–373 Border control, developments agencies, 60–61 biometric controls, 43–46, 403–406 databases, 59–60, 207–210 identity management, 62–65 privatisation, 59 surveillance technology, 316–318 Carriers carrier liaison, 21–22 penalties, 19–21 Committee Against Torture Committee, on extraterritorial responsibility, 83 Cuba, United States policy on migration by sea, 376–377, 384–385 Detention of irregular migrants Italy, 34 Spain, 34 European Convention on Human Rights Article 3, protection against inhuman or degrading treatment, 218–219 Article 5, protection of liberty, 219 Article 8, right to family life, 219–221 Article 8, right to privacy, 222 Article 9, freedom of religion, 223–224 Article 10, freedom of expression, 222–223

Article 13, right of access to justice, 225–226 Fourth Protocol, Article 2, right to leave, 224–225 Jurisdiction, concept of, 77–88, 213–218 United Kingdom jurisprudence on extraterritorial application, 11, 409–411, 422–428 European Union biometric controls, 45–46 borders, 169–173, 257–268 Common European Asylum System, 174–176 co-operation with third states, 210–211 databases, 207–210 Frontex – see separate entry Passenger Name Records (PNR) agreements with United States, 51–58 Schengen Borders Code – see separate entry Visa application centres, 204–205 Visas Code – see separate entry Visa Information System, 46–47 Extraterritorial border control European Union, 44–50,171–173 United Kingdom, 42–44 United States, 40–42 Extraterritorial processing of protection claims Australian practice, 29, 362–366 United States practice, 26, 392–395 Frontex accountability of, 236–238 co-operation with third countries, 251–254, 273–277 establishment, 230–232 generally, 61–62, 206–207, 268–272 role and powers, 232–236 role in interdiction at sea, 34–35, 238–244, 329–333 Schengen Borders Code and, 244–248 Geneva Convention on the Status of Refugees, Article 33 – see ‘non-refoulement, obligations’ Haiti, United States policy on migration by sea, 375–376, 377–384


448

Index

Human Rights Committee, on extraterritorial responsibility, 77, 82 Human rights obligations, extraterritorial application, 72–101, 213–218 Indonesia, co-operation with Australia in relation to migration control, 353–356 Inter-American Court of Human Rights on extraterritorial responsibility, 77, 83, 87–88 Interception and interdiction at sea Australia, 28–31 non-refoulement obligations and, 114–134, 188–196 Italy, 31–32 Palestine (1930s, 1940s), 23 Spain, 33–34 United States, 24–28 Vietnamese, 23–24 International Court of Justice, on extraterritorial responsibility, 76–77 International law of the sea (including UNCLOS) migration control and, 106–114 non-refoulement and, 114–134 other parts of international law and 104–106 rescue at sea – see separate entry Italy Albania, co-operation in relation to migration control, 31, 293–296 arrivals by sea, 31–32, 300–305 collective expulsion, 305–308 detention of irregular migrants, 34 interdiction at sea by, 32, 307 legislation on controls at sea, 283–289 Libya, co-operation in relation to migration control, 32, 297–300 multilateral initiatives concerning migration control, 289–292 Libya, co-operation with Italy in relation to migration control, 297–300 Non-refoulement, international law obligations Geneva Convention on the Status of Refugees, Article 33, 70, 180–188 Customary international law, 70 Human rights treaties, 70–71, 218–219 Non-refoulement, extraterritorial reach attribution of responsibility, 190–196 Article 33 of Geneva Convention, 180–188 general principles, 36–37, 91–101 persons at sea, 114–134, 188–190

Passenger Name Records (PNR), European Union – United States agreements, 51–58 Rescue at sea disembarkation, 144–147, 248–251 International Convention on Search and Rescue, 140–142 International law of the sea generally, 134–137 International Maritime Organization Guidelines (2004), 142–144 Safety of Life at Sea Convention 1974, 138–140 Schengen Borders Code extraterritorial application,176–180 Frontex and, 244–248 generally, 205–206 Spain arrivals by sea, 33–34 bilateral arrangements on migration control with African states, 33, 318–329 detention of irregular migrants, 34 Frontex and, 329–333 interdiction at sea by, 33–34 legislation on controls at sea, 313–316 smuggling of migrants, criminalisation of, 333–344 surveillance technology and controls at sea, 316–318 United Kingdom biometric controls, 403–406 entry clearance (visas), legal remedies, 10–12, 407–409 entry clearance (visas), requirements, 8–10, 398–403 extraterritorial border control, 42–44 European Convention on Human Rights, extraterritorial application, 11, 409–411, 422–428 juxtaposed controls, 16–18, 411–417 juxtaposed controls, legal remedies, 417–422 United Nations Convention on the Law of the Sea (UNCLOS) – see international law of the sea United Nations Protocol against Smuggling of Migrants by Land, Sea and Air adoption, 151–152 concept of ‘smuggling’, 152–153 criticism of, 162–166 obligations on states, 153–162 Spain, criminalisation of smuggling of migrants, 333–344

Index

United States Cuba, policy on migration by sea, 376–377, 384–385 extraterritorial immigration control, generally, 40–42 extraterritorial processing of protection claims, 392–395 Haiti, policy on migration by sea, 375–376, 377–384 interdiction at sea, 24–28, 375–396 judicial review of consular decisions, 7 Passenger Name Records (PNR) agreements with European Union, 51–58

preclearance, 14–16 Visa Waiver Program, 6–7 Visa requirements European Union, 12–14 origins, 4–5 United Kingdom, 8–10 United States, 5–7 Visas Code (European Union) appeal rights, 13–14 generally, 201–204

449

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