FP7-SECT-2007-217862

DETECTER

Detection Technologies, Terrorism, Ethics and Human Rights

Collaborative Project

Preventing irregular immigration through interception:

Recommendations for a human rights compatible maritime border policy in the European Union

14.2 (Outline of guidelines concerning human rights conform pre-entry screening mechanisms)

Due date of deliverable: 28 February 2011

Actual submission date: 1 April 2011

Start date of project:1.12.2008Duration: 36 months

Work Package number and lead: WP05, L.L.M. Kristina Stenman

Author(s): Audelina Ahumada-Jaidi, ÅboAkademiUniversity, Institute for Human Rights

Project co-funded by the European Commission within the Seventh Framework Programme
Dissemination Level
PU / Public / x
PP / Restricted to other programme participants (including the Commission Services)
RE / Restricted to a group specified by the consortium (including the Commission Services)
CO / Confidential, only for members of the consortium (including the Commission Services)

Executive summary

  1. External border control in Europe is increasingly taking place beyond the physical borders of the EU and its MemberStates. This paper examines maritime border control from the perspective of the principle of non-refoulement, as established in international human rights and refugee law, and elaborates on some of the legal aspects that are relevant for determining the legality of coercive border control when taking place on the high seas or in the territorial waters of non-EU countries.
  2. The use of official discourses that frame immigration as a security threat and the integration of counter-terrorism in the common EU border policy risks presenting immigration and criminality as inherently connected to each other. The portrayal of the migrant as potentially “illegal” may facilitate the acceptance of legally questionable immigration control measures. Moving away from such language could promote the enjoyment of human rights by undocumented migrants.
  3. The United Nations Convention on the Law of the Sea regulates matters of jurisdictional competence to coastal and flag states at sea and provides some guidance with regard to the legal basis of interception measures. The Convention does not detail how small boats without a flag are to be treated when encountered on the high seas, but it does provide that on the high seas ships shall be subject to the exclusive jurisdiction of their flag state. It thus favours the argument that border guardsare bound by international human rights law even when carrying out their duties beyond the borders of their state.
  4. The Schengen Borders Code establishes some guarantees for refugees and asylum seekers, and it requires that entry conditions required by third-country nationals do not apply to persons in need of international protection. Although the Code is ambiguous as regards the territorial scope of its application, border guards should be bound by its provisions in the course of maritime pre-border operations insofar as these concern the safeguards for refugees and asylum-seekers. This interpretation is in line with case law of international human rights monitoring bodies. Such lawsupports the extraterritorial applicability of international human rights obligations when effective control is exercised over a person.
  5. Maritime border control and anti-immigration measures often coincide with search and rescue missions, which are regulated by the international law of the sea. Coastal states have an international duty to cooperate and coordinate in organizing search and rescue services and concluding rescue operations, but no specific obligation exists as to where the disembarkation of rescued persons should take place. The concept of a “safe place” of disembarkation, although not defined in the relevant law, should be interpreted in light of international human rights and refugee law in order to ensure that persons rescued from distress at sea are not exposed to refoulement.
  6. Border control operations at the southern maritime borders of the EU often involve several actors, including MemberStates, third countries and the EU Border Agency Frontex. It is essential that the allocation of responsibilities during such operations is clearly regulated and that the involvement of third countries does not become used as a means to transfer away state responsibility for possible human rights violations. Third-country cooperation in this field should always be accompanied by follow-up mechanisms regulating potential human rights consequences of such cooperation.

Preventing irregular immigration through interception:

Recommendations for a human rights compatible maritime border policy in the European Union[1]

1. Introduction

Following a general trend by the EU and its MemberStatesof moving immigration control beyond their physical borders, maritime border operations increasingly take place on the high seas and in the territorial waters of non-EU/third countries.At the same time, the circumstances surrounding irregularmigration by seatend tofavourthe conflation of discourses pertaining to anti-immigration measures, on the one hand,and search and rescue missions, on the other. The underlying rationale of both tendencies is linked to anattempt to avoid responsibilities for processing and taking custody of migrants and refugees[2] (which, at least to some degree, needs to be recognized as a problem relating to an EU system that unfairly burdens states that share borders with non-EU countries[3]).In addition, there are trends in discourse within the EU that appear to have a negative impact on initiatives that aim to further the enjoyment by non-EU citizens/third-country nationals of international human rights and refugee law when trying to enter the Union. The growing terrorist threat, as it has been perceived since 9/11, and the continuous framing of EU immigration in terms of illegalityhave served to give legitimacy to measures that are questionable from an international human rights perspective.

This paper elaboratessome of the aspects that are relevant to determining the legal framework(s) governing interception measureswhen carried out by EU Member States in the Mediterranean Sea or in the waters outside north-west Africa.The lack of a clear legal basis for such activities exacerbatesdisputes about what the human rights duties of a state are beyond its own borders. Yet,maritime border control may in practice have crucial effects on the human rights of irregularly travelling migrants at sea, including when people who are fleeing persecution are prevented from arriving and lodging an asylum-application at the borders of another state.This paper concentrates on the prohibition of non-refoulementand EU Member States’ obligation to protect refugees and asylum-seekers during interception at sea.[4]

Interception, in the words of the UNHCR, comprises measures by states to “prevent embarkation of persons on an international journey; prevent further onward international travel by persons who have commenced their journey; or assert control of vessels where there are reasonable grounds to believe the vessel is transporting persons contrary to international or national maritime law” in specific relation to irregularly travelling persons.[5] For the purposes of this paper such measuresare to be understood to include catching, turning back, diversion or escorting backships and boats.Because interception within or at the external borders of the EU can at least be considered less problematic in terms of legal regulation,[6] this paper exclusively addresses questions related to Member State operations that are taking place beyond the borders, which in our case means on the high seas or even in the territorial waters of third countries. It begins, in section 2, with some reflections on the impact of the terrorist threat on EU initiatives to prevent irregular immigration, including in the context of surveillance of maritime borders. It argues that we need to move away from political language which risks presenting immigration and criminality as two sides of the same coin. Section 3 provides an overview of the applicable legal framework regulatingborder control measures beyond Member States’ territorial waters. Itexaminesrelevant provisions of the United Nations Convention on the Law of the Sea, the Schengen Borders Code and laws covering maritime search and rescue missions. It elaborates existing legal gaps and appeals to the extraterritorial applicability of the principle of non-refoulement, as it is regulated in international human rights and refugee treaties,to support interpretations of the law, which may promote a human rights compatible understanding of obligations and responsibilities that are connected to maritime border control operations.Section 4 discusses the allocation of responsibilities between the range of actors that are often involved in the operations in question. In doing so, it addresses controversies surrounding the involvement of third countries in activities that essentially aim at preventing people from entering the EU. Finally, a set of recommendations are formulated with the aim of highlighting some of the most urgent issues that should be addressed if maritime border controls are to be compatible with international human rights standards.

2. The interlinkages between counter-terrorism and the prevention of irregular immigration

Migration has been framed as a security issue in Europefor several decades. Thisis closely related to the unease caused by the fall of the Iron Curtain and the coinciding of this event with the EU project of gradually abolishing the internal borders of itsMember States.[7]Against this background, the terrorist attacks in New Yorkon 11 September 2001 and similar events on European soil should not be understood as giving rise to a fundamentally new trend in European law and policy onmigration and border control. Importantly, however, the atmosphere of urgency caused by the terrorist threat did provide a significant political impetus and justification for speeding up the realization of common initiativesin this field. The security-driven development towards common tools and strategies for the protection of the external borders of the Union together with a strengthened focus on preventing irregular immigrationshould be understood against this background.[8]

The creation of effectivemechanisms to reduce the number of immigrants irregularly crossingthe external borders of the EUfalls within the wider framework of the EU’s Integrated Border Management strategy[9] and has been directed to a considerable degree at protecting the maritime borders of the southern Member States.[10]Here, the construction of technological security infrastructures is considered to play an essential role. These infrastructures also complement interception measurescarried out in and beyond the territorial waters of relevant coastal Member States and, thereby, contributeto the effective control and surveillance of this area.[11]In February 2008, the Commission adopted a communication on the creation of EUROSUR(a European Border Surveillance System), which, inter alia,proposed the development and common application of surveillance tools, such as satellite systems and Unmanned Aerial Vehicles,to “support the Member States in reaching full situational awareness on the situation at their external borders and increase the reaction capability of their law enforcement authorities”.[12] The initiative, which will enable systematic and real-time operational information exchange between Member States on border control, is aimed at enhancing border surveillance “with the main purpose of preventing unauthorised border crossings, to counter cross-border criminality and to support measures to be taken against persons who have crossed the border illegally”.[13]

The Communication gives priority tothe protection of the southernmaritime borders of the EU. While also addressing the increasing death toll of sea migrants in the Atlantic waters outside north-west Africa and in the Mediterranean sea, itstresses that the “capacity to detect small boats in the open sea must be enhanced, contributing to greater chances of search and rescue and thereby saving more lives at sea”.Furthermore, apart from reducing “the number of illegal immigrants who managed to enter the EU undetected”, border surveillance, according to the Communication, also aims to increase internal security of the EU through the prevention of “terrorism, trafficking in human beings, drug smuggling, illicit arms trafficking etc”.[14]The establishment of EUROSUR also features in the Commission Communication on an EU Internal Security Strategy alongside a number of measures proposed for the purpose of targeting the most urgent challenges to EU security.[15]

While there is a tendency within EU official discourse to connect border crossings with criminal activity,[16]the increasing “securitization”[17]of the phenomenon of immigration, including throughthe use of language that builds on references to illegality and the need for “fighting” and “combating” “illegal immigration”arguably promotes the idea that there is an overlap between the category of the undocumented migrant and a potential criminal.[18]As against this, the Council of Europe’s Human Rights Commissioner, Thomas Hammarberg, in relation to proposals to criminalize attempts to enter a country without proper documentation, has expressed the opinion that“criminalization is a disproportionate measure which exceeds a state’s legitimate interest in controlling its borders” and, further, “would, in effect, equate them with the smugglers or employers who, in many cases have exploited them”.[19]Pointing to the function of criminal law as a way to define acts against the security of the community, Guild takes the view that criminalizing the crossing of the border otherwise than in the permitted fashion or remaining on the territory of a state without authorization renders anyone who breaks these laws an object of security.[20]

The integration of counter-terrorism in the development of a common EU border policy has given further support to the maintenance of political discourse in which crimeand immigration have become increasingly intertwined[21] and where “the talk of invasion, insecurity and foreign terrorists has begun to reflect an electorate that identifies immigration as a threat, not just a serious problem”.[22]In response to this development, one may question whether it is appropriate at all to attribute “illegality” or even “criminality” to a person who crosses a border irregularly or remains within the territory of a state in breach of the administrative rules developed by that state.[23] One may also question whether this situation can be considered a legitimate ground for characterizing a person as a “security threat”.

Terminology plays a decisive role in the justification and development of public policy responses, andit appears in particular that the debate promotingthe human rights of undocumented migrants would strongly benefit fromdropping the term “illegal immigrant”.[24]Within the context of surveillance measures over the Mediterranean, there have been instances in which undocumented immigrants crossing the sea by boat have been characterized as criminals and even associated with terrorism.[25]It is alsounfortunate that, as a consequence of the Tunisian uprising atthe beginning of 2011 and the subsequentincrease in the number of Tunisian immigrants arrivingby boat on Italian territory, high-level Italian government officials now voice fear thatpotential terrorists could be among those fleeing Tunisia in this way.[26]It is true that sudden arrivals of a high number of irregular migrants may cause a range of problems for the receiving state. However, it is of concern thatthe general phenomenon of irregular mobility at EU’s southern external borders, whichmainlyconsists of poor non-EU citizens including vulnerable people such as refugees and asylum-seekers, is being explicitly associated with terrorism. Such approachesrisk giving further legitimacy to existing anti-immigration measures, which have already been extensively criticized for goingbeyond normative constraints and legal guarantees.

3. Preventing irregular immigration at Europe’s southern maritime borders: an overview of the legal framework

3.1. United Nations Convention on the Law of the sea

The United Nations Convention on the Law of the Sea (UNCLOS)[27] is primarily focused on the allocation of competence between coastal states and flag states, not migration activities at sea.[28]The Convention, which has been ratified by all EU Member States, does, however, regulate matters of jurisdictional competence in maritime areas of coastal states. Hence it provides some guidance with regard to the legal basis of interception measures[29] as well as the applicability of human rights obligations and responsibilities to these measures.

As concerns the legal competence to regulate human mobility inmaritime areas, the UNCLOS provisions divide maritime waters into zones, within which states enjoy certain rights.[30]While the legitimacy of migration and border control activities in the internal sea, that is waters landward of the baseline,[31]are based on the coastal state’s full jurisdiction, the only limitation to state sovereignty in the territorial sea, that is 12 nautical miles from the baseline, is the right to innocent passage. Such passage is subject to regulation by the coastal state, which in this context may pass legislation in order to prevent, for example, the violationof its immigration laws.[32]For the same purposes, the coastal state ispermitted to conductnecessarycontrols[33] within the zone outside the territorial waters extending to 24 nautical miles from the baseline, known as the “contiguous zone”.[34]

There are different interpretations of the precise scope of this right. One argument is that since this zone is considered to be part of the high seas and, therefore, subject to freedom of navigation, such controls are restricted to approaching the vessel for examination and preventing its entry into the territorial sea, but do not include more extensive coercive measures, such as detention or escorting to a harbour.[35]The high seas, finally, are organized around a residual principle of freedoms for both states and individuals occupying them[36] andvessels are subject only to the flag state’s jurisdiction.[37] Here, coercive measures against foreign vessels are, subject to a list of exceptions in the UNCLOS,[38] forbidden. However, freedom of navigationonly applies to vessels flying a flag, which is often not the case for small boats carrying migrants. Although in exceptional cases, including when a vessel is without nationality, UNCLOS stipulates a right for warships to verify their status,[39]the Convention does not detail how this status should be determined on an operational level or how such vessels are to be treated.[40]

From the perspective of international human rights standards and refugee law, including their applicability onextraterritorial border control operations by the coastal state, it is essential to note that the exercise of jurisdiction as far as the legal framework of international maritime law concerns is not exclusively based on a territorial link. Rather, under certain circumstances the flag state’s jurisdiction over a vessel is based on legal sovereignty.Article 92 UNCLOS establishes that “Ships shall sail under the flag of one State only and[...] shall be subject to its exclusive jurisdictionon the high seas”. Consequently, the law of the flag state applies on board the vessel,[41] which includes national, international and EU law provisions on relevanthuman rights obligations.[42]As regards the enjoyment of international human rights standards in this specific situation, the argument that there is a distinction between crew members on board a ship, on the one hand, and people on board another ship or in the water, on the other, is not convincing for all circumstances; in so far as Article 92requirescrew members on board to comply with international human rights standards, the persons affected by their actions should equally be considered beneficiaries of these same standards.[43] (See also section 3.4.below.)