The EU and the externalisation of migration and asylum: An analysis of potential human rights violations and legal responsibility
Shifting responsibility for migrants and refugees to third countries has become a central feature of the European Union’s migration, asylum, and border governance. This report uses the term “externalisation” to refer to this shifting of responsibility. Although it involves cooperation and “partnerships,” externalisation is premised upon unequal power relations between the externalising and third countries.
Externalisation fundamentally contradicts the values of the rule of law, including transparency, participation in decision-making, good faith and human dignity. As such, it creates a context where human rights violations are likely to occur.
The paper examines externalisation through a legal lens, offering an analysis of potential violations of migrants’ human rights and the corresponding responsibility. Section 2 outlines two forms of externalisation and provides examples of measures falling within each. Section 3 addresses possible human rights violations arising in the context of externalisation, while Section 4 discusses how responsibility for those violations could be established. Section 5 presents the paper’s concluding reflections.
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Table of contents
1. Introduction 6
2. Forms of externalisation 7
2.1. Border externalisation 7
2.2. Transfer to third countries 10
3. Human rights consequences of externalisation 14
3.1. Migrants 15
3.2. Third-country nationals without intention to migrate to the EU 20
4. Responsibility for human rights violations 21
4.1. Responsibility under international law 21
4.2. Extraterritorial jurisdiction 23
4.3. Legal remedies 24
5. Conclusions 26