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

See all articles by Seline Trevisanut

Seline Trevisanut

Netherlands Institute for the Law of the sea, Utrecht University School of Law; Utrecht University - School of Law

Date Written: June 1, 2013

Abstract

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

Suggested Citation

Trevisanut, Seline, The Principle of Non-Refoulement and the De-Territorialization of Border Control at Sea (June 1, 2013). Leiden Journal of International Law (2014, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2341012

Seline Trevisanut (Contact Author)

Netherlands Institute for the Law of the sea, Utrecht University School of Law ( email )

Achter Sint Pieter 200
Utrecht, 3512 HT
Netherlands
31 (0) 302 53 37 96 (Phone)

HOME PAGE: http://www.uu.nl/rebo/medewerkers/STrevisanut/0

Utrecht University - School of Law ( email )

3508 TC Utrecht
Utrecht
Netherlands

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