Containment instead of Refoulement: Shifting State Responsibility in the Age of Cooperative Migration Control?

Annick Pijnenburg, Containment Instead of Refoulement: Shifting State Responsibility in the Age of Cooperative Migration Control?, Human Rights Law Review, Volume 20, Issue 2, June 2020, Pages 306–332, https://doi.org/10.1093/hrlr/ngaa011

27 Pages Posted: 12 Aug 2019 Last revised: 24 Jul 2020

Date Written: June 1, 2020

Abstract

Containment policies whereby destination States provide funding, equipment and training to transit States that intercept refugees on their behalf suggest that destination States try to circumvent the prohibition of refoulement and raise the question to what extent destination States can avoid responsibility for violations of the rights of migrants and refugees by cooperating with transit States. Answering this question requires broadening the analysis beyond the principle of non-refoulement, including not only international human rights law, especially the right to leave and the concept of jurisdiction, but also the law of State responsibility, notably the prohibition of complicity. This article argues that, although it remains debatable whether the principle of non-refoulement applies when transit States intercept migrants and refugees on behalf of sponsoring destination States, the wider network of international law rules constrains the latter’s ability to avoid responsibility when implementing cooperative migration control policies.

Keywords: containment, non-refoulement, cooperative migration control, jurisdiction, State responsibility, complicity

Suggested Citation

Pijnenburg, Annick, Containment instead of Refoulement: Shifting State Responsibility in the Age of Cooperative Migration Control? (June 1, 2020). Annick Pijnenburg, Containment Instead of Refoulement: Shifting State Responsibility in the Age of Cooperative Migration Control?, Human Rights Law Review, Volume 20, Issue 2, June 2020, Pages 306–332, https://doi.org/10.1093/hrlr/ngaa011, Available at SSRN: https://ssrn.com/abstract=3418365 or http://dx.doi.org/10.2139/ssrn.3418365

Annick Pijnenburg (Contact Author)

Tilburg Law School ( email )

Netherlands

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