The Principle of Non-Refoulement and the De-Territorialization of Border Control at Sea
Leiden Journal of International Law (2014, Forthcoming)
26 Pages Posted: 17 Oct 2013
Date Written: June 1, 2013
In dealing with this human tragedy, destination states have adopted comparable policies aimed at preventing the arrival of irregular migrants by performing border control outside their territory. States of destination have commonly used measures such as (joint) patrolling, interception of irregular migrants on the high seas and in the territorial waters of third states , redirection of intercepted migrants to the coasts of third states, etc. This practice consists in a “de-territorialized border control”. This detachment of regulatory authority from a specific territory has consequences on the applicable legal framework, in particular in relation to the safeguards the individuals submitted to the control activities are entitled to, such as the principle of non-refoulement.
The starting point of this paper is that a new approach to police activities at sea is much needed in relation to irregular migration. In fact, to migrate is not an illicit activity. The smugglers of the migrants are the ones carrying out an illicit activity at sea . Migrants perpetrate an illicit act once they irregularly trespass or attempt to trespass an international border. Consequently, the measures coastal states take at sea in order to prevent and control migrants’ arrival qualify as border control actions and the relevant legal framework then applies.The principle of non refoulement is an important element of the legal regime applicable to states’ border management and is a fundamental yardstick for the de-territorialization of border control.
Keywords: non-refoulement, maritime border, border control, migration control, jurisdiction
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