Externalized Borders and the Invisible Refugee

75 Pages Posted: 20 Apr 2011 Last revised: 30 Apr 2011

See all articles by Lori A. Nessel

Lori A. Nessel

Seton Hall University - School of Law

Date Written: Spring 2009

Abstract

This Article undertakes a comparative analysis of external border enforcement measures in the European Union and the United States, with particular emphasis on the efforts of both to curtail migration by sea. Nations around the world are moving the locus of border enforcement efforts beyond their terrestrial borders into the sea or onto territories of foreign countries, in an effort to halt the flow of refugees. In the European Union, some Member States have begun to externalize the EU borders by using the EU joint external border guard agency (FRONTEX) to intercept and repatriate thousands of migrants caught at sea. EU Member States with borders in close proximity to Africa have entered into agreements with nations with large emigrant populations in order to shift responsibility for refugee flows onto already overburdened developing nations. Nations with large emigrant populations have little choice but to enter into immigration agreements with EU Member States, since development funding or visa-allotment is often tied to acceptance of these agreements.

I argue that the global focus on securitization and enforcement has weakened the refugee protection regime. Because the European Union is bound by a number of human rights and European Community conventions beyond the Refugee Convention, it offers a particularly fertile ground for analyzing border externalization actions and reconceptualizing the needs of - and obligations to - the modern day refugee. I propose a framework for accountability and increased refugee protection that goes beyond the Refugee Convention and draws upon other international laws. I argue that just as a nation should not escape liability when it sends a person in its custody to a nation that is known to engage in torture, so too must a nation be liable for human rights violations that occur as a result of outsourcing refugee protection and the externalizing of borders.

Although sovereign nations have a right to control entry into their territories, this right is not absolute and must be carried out in harmony with international human rights obligations. States cannot refuse to respect these rights either by blocking access to a receiving country or by partnering with third countries to block individuals from leaving their homelands. Border security functions should not be floated out to sea or delegated to third countries without also ensuring that the concomitant international protection obligations are carried out fully. In order for the Refugee Convention to have meaning, it must be interpreted within the context of the broader international human rights framework; those in need of protection must be afforded true access. Nations that commit human rights abuses must be held accountable - whether the abuses occur at home or abroad.

Keywords: migration, interdiction, immigration, externalization, borders, duty to rescue, refugees, Frontex, Haiti

Suggested Citation

Nessel, Lori A., Externalized Borders and the Invisible Refugee (Spring 2009). Columbia Human Rights Law Review, Vol. 40, No. 625, 2009. Available at SSRN: https://ssrn.com/abstract=1811184

Lori A. Nessel (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973 642 8708 (Phone)

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