AEDH

External borders control: a real risk of violation of the principle of non-refoulement !

24 January – In December 2016, the European Agency for Fundamental Rights (FRA) published a report entitled “Scope of the principle of non-refoulement in contemporary border management: evolving areas of law “, in order to clarify the legal obligation of Member States to respect the principle of non-refoulement in the context of operations conducted at EU external borders or in cooperation with third countries.

This 52 page document attempts to frame the queries (and concerns) on the risk of violation of the principle of non-refoulement when European Union (EU) Member States conduct control activities at their borders and in the management of migration flows beyond their territory, both maritime and terrestrial. The FRA report aims at shedding light on the extraterritorial effects of the principle. The issue is even more crucial keeping in mind that the access to the European Union territory is more and more difficult and takes mostly “illegal” ways – for lack of commitment of Member States at opening legal channels.

EU Member States are bounded by the principle of non-refoulement on the basis of a plurality of international regimes, as, the Geneva Convention of 1951, establishing, in its article 33, the prohibition to return asylum seekers to a country where the risk of persecution is real; the International Convention on Civil and Political Rights of 1966, which considers the principle of non-refoulement as a core component of the prohibition of all act of torture and cruel, inhuman or degrading treatment; the Treaty on the Functioning of the EU (art. 78) and the Charter of Fundamental Rights of the EU (art. 18 and art. 19).

Ten different scenarios are presented in the report in order to understand the implementation of the principle of non-refoulement at the moment where measures for the integrated border management are put in place by Member States.

We can see that no ambiguities exist regarding to the responsibility of Member States when they take measures at their external borders (at border crossing points, transit zones, boundaries between their territorial seas) or during interceptions at sea (see the Hirsi vs. Italy case).

However, rescue operations at the high seas and activities in the territory of a third State (assistance at airports, in territorial waters, in capacity building activities) are more often sources of doubts. The report thus specifies that Member States have jurisdiction and are obliged to respect the principle of non-refoulement if they exercise an effective control on the people concerned during the implementation of these forms of extraterritorial collaboration.

 

The FRA report’s objective is not to modify the doctrine and allows the interpretation to the jurisdictions in each specific case. However, AEDH considers that it provides a useful clarification to debates on the implementation of the principle of non refoulement in the management of external borders. With this in mind, our association strongly encourages Member States to draw inspiration from this report, so as to prevent any risk of violation of the principle of non refoulement.

 

o   Read FRA report Scope of the principle of non-refoulement in contemporary border management: evolving areas of law”, December 2016

o   Read FRA guidance: “Guidance on how to reduce the risk of refoulement in external border management when working in or together with third countries”, December 2016

Compte AEDH