International Journal of Refugee Law Advance Access originally published online on April 29, 2009
International Journal of Refugee Law 2009 21(2):256-296; doi:10.1093/ijrl/eep008
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Border Controls at Sea: Requirements under International Human Rights and Refugee Law
* Professor of Public Law, European Law, Public International Law and Legal Theory at the University Bremen. Director of the Center for European Law and Politics (www.zerp.eu); fischer-lescano{at}zerp.uni-bremen.de
** PhD (Law), Legal and policy advisor at the German Parliament (Deutscher Bundestag), Berlin. The views expressed are personal and do not reflect those of the German Parliament or any of its bodies
*** PhD (Law), Research assistant at the Institute of Public Law, Goethe-University, Frankfurt
In 2004, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union was established. The Agency supports member states in coordinating their border controls. Border controls at sea have, therefore, received increasing attention. Coordinated by FRONTEX, member states carry out border controls not only in their territorial waters, but also on the High Seas and within the territorial waters of third countries.
One must assume that at least some of the people on board intercepted vessels are persons in need of international protection. However, some European governments have argued that the principle of non-refoulement does not apply exterritorially. This article will challenge this approach. First, it argues that the principle of non-refoulement, as laid down in the UN Convention Relating to the Status of Refugees, the European Convention on Human Rights and other international treaties relating to refugee and immigration law does apply beyond the territory of the signatory states. Secondly, it argues why non-refoulement, as a principle of refugee and fundamental rights legislation within European primary and secondary law, does apply beyond the territory of the contracting states. Thirdly, regarding the treatment of protection seekers and migrants at sea, it examines the obligations of border guard authorities to act under maritime, human rights and refugee law and when there is a legal failure to act. Finally, the article examines whether EU secondary law, as well as Border Control Practice, are consistent with these obligations.
Translation: SooHyun Oh, research assistant at the Institute for Economic Law, Goethe University, Frankfurt and Bridget Moore, translator and interpreter, Berlin.
The text is a revised version of a legal opinion issued in the name of the European Center for Constitutional and Human Rights requested by Stiftung Pro Asyl, Amnesty International Germany & Forum Menschenrechte, 2007, <http://www.ecchr.eu>, last visited Mar. 2009.