Managing Migration, Evading Responsibility? - Extraterritorial Jurisdiction and Externalisation in the EU Migration Regime
(2025) JURM02 20252Department of Law
Faculty of Law
- Abstract
- With the adoption of the New Pact on Migration and Asylum, the European Union (EU) and its Member States are encouraged to cooperate with third States through informal agreements, notably in the form of Memoranda of Understanding (MoUs). These arrangements form a central component of the EU’s externalisation strategy, shifting its borders outwards and thereby limiting the circumstances under which Member States’ jurisdiction is engaged. Against this background, the thesis examines whether, and to what extent, externalisation practices under MoUs trigger extraterritorial jurisdiction under Article 1 of the European Convention of Human Rights (ECHR). Drawing on developments in case law and relevant scholarly work, the thesis engages with the... (More)
- With the adoption of the New Pact on Migration and Asylum, the European Union (EU) and its Member States are encouraged to cooperate with third States through informal agreements, notably in the form of Memoranda of Understanding (MoUs). These arrangements form a central component of the EU’s externalisation strategy, shifting its borders outwards and thereby limiting the circumstances under which Member States’ jurisdiction is engaged. Against this background, the thesis examines whether, and to what extent, externalisation practices under MoUs trigger extraterritorial jurisdiction under Article 1 of the European Convention of Human Rights (ECHR). Drawing on developments in case law and relevant scholarly work, the thesis engages with the concept of functional jurisdiction as an alternative framework for triggering extraterritorial jurisdiction. This approach emphasises a holistic view of jurisdiction, focusing on the exercise of public power, the foreseeability of State actions, and the relationship of dependency such actions may create for the affected individuals.
The analysis is informed by a study of S.S. and Others v. Italy, in which the European Court of Human Rights declined to establish extraterritorial jurisdiction despite Italy’s extensive operational and financial involvement in Libyan migration governance. The thesis argues that the restrictive interpretation by the Court normalises externalisation agreements and forms of ‘contactless control’. The informality of externalisation agreements contributes to an accountability gap in the human rights system, as affected individuals are left without effective access to judicial review of these practices, creating a legal grey zone.
Therefore, it is concluded that a functional understanding of jurisdiction provides a more coherent and principled framework for assessing extraterritorial jurisdiction in the context of EU migration externalisation than the prevailing models. Using functional jurisdiction, MoUs may trigger extraterritorial jurisdiction where the relevant criteria are fulfilled. Such an approach aligns with the object and purpose of the ECHR and ensures that States cannot circumvent their human rights obligations through indirect or informal cooperation with third States. (Less)
Please use this url to cite or link to this publication:
https://lup.lub.lu.se/student-papers/record/9216532
- author
- Andrén, Axel LU
- supervisor
- organization
- course
- JURM02 20252
- year
- 2025
- type
- H3 - Professional qualifications (4 Years - )
- subject
- keywords
- public international law, European Convention on Human Rights, European Court of Human Rights, jurisdiction, extraterritorial jurisdiction
- language
- English
- id
- 9216532
- date added to LUP
- 2026-01-13 14:54:48
- date last changed
- 2026-01-13 14:54:48
@misc{9216532,
abstract = {{With the adoption of the New Pact on Migration and Asylum, the European Union (EU) and its Member States are encouraged to cooperate with third States through informal agreements, notably in the form of Memoranda of Understanding (MoUs). These arrangements form a central component of the EU’s externalisation strategy, shifting its borders outwards and thereby limiting the circumstances under which Member States’ jurisdiction is engaged. Against this background, the thesis examines whether, and to what extent, externalisation practices under MoUs trigger extraterritorial jurisdiction under Article 1 of the European Convention of Human Rights (ECHR). Drawing on developments in case law and relevant scholarly work, the thesis engages with the concept of functional jurisdiction as an alternative framework for triggering extraterritorial jurisdiction. This approach emphasises a holistic view of jurisdiction, focusing on the exercise of public power, the foreseeability of State actions, and the relationship of dependency such actions may create for the affected individuals.
The analysis is informed by a study of S.S. and Others v. Italy, in which the European Court of Human Rights declined to establish extraterritorial jurisdiction despite Italy’s extensive operational and financial involvement in Libyan migration governance. The thesis argues that the restrictive interpretation by the Court normalises externalisation agreements and forms of ‘contactless control’. The informality of externalisation agreements contributes to an accountability gap in the human rights system, as affected individuals are left without effective access to judicial review of these practices, creating a legal grey zone.
Therefore, it is concluded that a functional understanding of jurisdiction provides a more coherent and principled framework for assessing extraterritorial jurisdiction in the context of EU migration externalisation than the prevailing models. Using functional jurisdiction, MoUs may trigger extraterritorial jurisdiction where the relevant criteria are fulfilled. Such an approach aligns with the object and purpose of the ECHR and ensures that States cannot circumvent their human rights obligations through indirect or informal cooperation with third States.}},
author = {{Andrén, Axel}},
language = {{eng}},
note = {{Student Paper}},
title = {{Managing Migration, Evading Responsibility? - Extraterritorial Jurisdiction and Externalisation in the EU Migration Regime}},
year = {{2025}},
}