Legal Opinion – Human rights and refugee law requirements towards border control at sea
This legal opinion commissioned by Amnesty International, Pro Asyl and Forum Menschenrechte was published on 27.9.2007.
In the context of the EU policies on borders, asylum and migration as well Frontex activities in the Mediterranean, Fischer-Lescano and Löhr, researcher of the Johann-Wolfgang Goethe University, Frankfurt/Main, were asked to address three questions:
1.) Whether non-refoulement obligations originating from international law apply beyond the territorial reach of the signatory states?
2.) Whether non-refoulement obligations originating from EU primary and secondary law apply beyond the territorial reach of EU states?
3.) Which legal duties to act or to forbear in the treatment of refugees and migrants at seas derive from answers no. 1 and 2 with regard to the law of the seas, human rights law and refugee law?
The findings and conclusions can be summed up as follows:
1.) The non-refoulement obligations prevent European border guards to turn back, escort back, prevent from traveling on, tow back or transport to non-EU coastal regions, those persons being in potential need of international protection as long as the administrative and forensic revision of the demand for protection on European territory is not completed.
2.) European border guards are bound by this obligation even when operating extraterritorial. On the sea this applies within the EU’s own territorial waters, within the High Seas and the coastal waters of third countries.
3.) Persons in need of protection and migrants, that encounter distress at sea, must be treated according to the humanitarian law of the seas. It is forbidden to take them to third countries where adequate protection is not guaranteed.
4.) Persons in need of protection have a legal claim to be taken to the next secure port on European territory. The law of the seas-criterion ‘secure’ must be interpreted in the light of the provisions of refugee law.
5.) European border guards cannot be relieved from their obligations by cooperating with border guards from third countries.
6.) Insofar as authorities from third countries are integrated into European surveillance and rescue operations, European authorities are obliged to secure that persons in need of protection and migrants are treated in accordance with the relevant provisions of the law of the seas, human rights law and refugee law and are taken to a secure place where it is guaranteed that particularly the non-refoulement principle is observed. As this is not the case in the African transit states, these persons must be taken to the territory of an EU member state.