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Preventing Protection: Legality of the Interception of Refugees in the European Union

Birk, Moritz (2009)
Department of Law
Abstract
In view of creating a common area of freedom, security and justice in the European Union, its Member States have increased their cooperation and coordination in the field of border protection and migration management. Over the last years they have focused on the 'external dimension' of border protection and have shifted their border controls away from their territories. They have put into place a complex set of interception methods reaching from visa requirements that are being checked by private carriers and outposted State authorities, to the physical interception of migrant boats on the high seas and territorial waters of third States. While those measures are implemented to prevent the arrival of 'illegal immigrants' they are lacking... (More)
In view of creating a common area of freedom, security and justice in the European Union, its Member States have increased their cooperation and coordination in the field of border protection and migration management. Over the last years they have focused on the 'external dimension' of border protection and have shifted their border controls away from their territories. They have put into place a complex set of interception methods reaching from visa requirements that are being checked by private carriers and outposted State authorities, to the physical interception of migrant boats on the high seas and territorial waters of third States. While those measures are implemented to prevent the arrival of 'illegal immigrants' they are lacking mechanisms to distinguish migrants from refugees. Consequently, they obstruct the refugees' access to protection and force them to resort to dangerous migration routes and methods, risking their lives in their search for protection, or to flee to territories where effective protection cannot be expected. The lack of safeguards for refugees in interception methods take place in a spirit of legality, Member States holding that their human rights obligations do not apply extraterritorially. However, a substantial interpretation and analysis of human rights law reveals that human rights treaties are extraterritorially applicable and that the current regulation and implementation of interception methods in the EU are in violation of the principle of non-refoulement, the right to life, the right to leave to seek asylum and the principle of good faith. The EU Member States cannot circumvent their human rights obligations by outsourcing border controls. Consequently they are legally obliged to modify their regulation and implementation of interception practices to safeguard the human rights of refugees. When intercepting migrants, States have to assess the rights of each individual and make sure that their human rights are not violated. This requires the EU Member States to undertake fundamental changes in their border and migration management strategies that will have to be tackled in a common European effort. (Less)
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author
Birk, Moritz
supervisor
organization
year
type
H2 - Master's Degree (Two Years)
subject
keywords
International Human Rights Law
language
English
id
1555430
date added to LUP
2010-03-08 15:23:50
date last changed
2010-03-08 15:23:50
@misc{1555430,
  abstract     = {In view of creating a common area of freedom, security and justice in the European Union, its Member States have increased their cooperation and coordination in the field of border protection and migration management. Over the last years they have focused on the 'external dimension' of border protection and have shifted their border controls away from their territories. They have put into place a complex set of interception methods reaching from visa requirements that are being checked by private carriers and outposted State authorities, to the physical interception of migrant boats on the high seas and territorial waters of third States. While those measures are implemented to prevent the arrival of 'illegal immigrants' they are lacking mechanisms to distinguish migrants from refugees. Consequently, they obstruct the refugees' access to protection and force them to resort to dangerous migration routes and methods, risking their lives in their search for protection, or to flee to territories where effective protection cannot be expected. The lack of safeguards for refugees in interception methods take place in a spirit of legality, Member States holding that their human rights obligations do not apply extraterritorially. However, a substantial interpretation and analysis of human rights law reveals that human rights treaties are extraterritorially applicable and that the current regulation and implementation of interception methods in the EU are in violation of the principle of non-refoulement, the right to life, the right to leave to seek asylum and the principle of good faith. The EU Member States cannot circumvent their human rights obligations by outsourcing border controls. Consequently they are legally obliged to modify their regulation and implementation of interception practices to safeguard the human rights of refugees. When intercepting migrants, States have to assess the rights of each individual and make sure that their human rights are not violated. This requires the EU Member States to undertake fundamental changes in their border and migration management strategies that will have to be tackled in a common European effort.},
  author       = {Birk, Moritz},
  keyword      = {International Human Rights Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {Preventing Protection: Legality of the Interception of Refugees in the European Union},
  year         = {2009},
}