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Outsourcing border controls: a palliative approach

​​In response to the current migration crisis, in a situation where the Dublin System has legalized an asymmetric allocation of responsibility, the EU and its member states have recently opted for a strategy based on the ‘full externalization of border controls’. It can be defined as a range of policies whereby countries of destination induce countries of transit so that the latter exert extraterritorial control in the former’s stead and for their benefit. In this way, we assist to orchestrated forms of control of migration flows, mostly through the delivery of training, funds, assets and know-how to non-EU partners. Are these forms of control compliant with fundamental principles of international law? And, most importantly, do they achieve the objective of addressing the roots of the migration crisis?

Off-shoring responsibilities

As a reaction to the hundreds of thousands of Syrian migrants using the Eastern Mediterranean route to enter Europe during the summer of 2015, Turkey and the EU agreed on the ‘one in, one out’ deal, which stipulated that “for every Syrian being returned to Turkey from Greece, another Syrian will be resettled to the EU”. In brief, Turkey would take measures in order to arrest irregular arrivals and, in exchange, EU visa requirements for Turkish citizens travelling to the EU’s Schengen Zone were to be lifted.

In 2017, the Italian government, backed by the EU, agreed on a deal with the Libyan government, whereby Italy and the EU committed to creating the ‘Fund for Africa’ dedicated to maintaining, training and equipping Libyan Coast Guard boats and crews. This economic and logistic assistance aims to enable Libya to autonomously conduct ‘pull-back’ operations aimed at bringing back migrants sailing off from Libyan shores towards Europe.

Another example of this troubling pattern is represented by readmission agreements sealed between the EU, or its member states, and third countries, such as Armenia, Georgia and Turkey. Their aim is to create a legal framework for forced returns that would allow border authorities to handle transfers of third-country nationals swiftly, without the involvement of diplomatic channels. Beside these arrangements, the EU has also engaged in development aid, visa facilitation, technical cooperation and labour exchange.

What can we deduce from this engineered network of creative mechanisms? European countries’ ultimate goal is to stem illegal migration flows at their source, and, by realizing migration control extra-territorially and by sub-contracting it to third countries, they potentially diffuse and deflect their international obligations under international law.

A failing legal strategy At a legal-strategic level, this shift of responsibility is being justified by the European officials with two different claims. First, the EU claims that the plan is consistent with international law, at least from an EU-centric perspective. The principle of non-refoulement, a cornerstone of international refugee law, prohibits states from expelling or returning a refugee to a country in which he or she may be persecuted. Nonetheless, since the so-called Dublin III Regulation establishes that all member states retain the right to send an applicant to a “safe third country”, this practice is legal under EU law if Libya and Turkey fall within the category. Second, the provision of funds and equipment allows the EU to distance itself from what is happening in these countries and shirk any apparent ethical responsibility for actions carried out by these countries at the EU's own bidding. It seems that the EU has no intent – no dolus specialis – of intervening in the abuses in Turkey, in the atrocities in Libya, or in the fatalities at sea associated with border controls.

Yet, the picture is more complex and substantial loopholes emerge in this defense. First of all, Libya cannot be, as concluded by the ECHR, considered a 'place of safety' (for either search and rescue or human rights purposes) because of the inadequacy of its response to flows of migrants and asylum seekers, which has been well documented in reports by the UNHCR and other international human rights organizations. The situation in Turkey is equally problematic. In fact, reliable sources including the Human Rights Watch have reported that "Turkish border guards are shooting and beating Syrian asylum seekers trying to reach Turkey". So, if the EU’s argument is based on the assumption that refugees, although prevented from entering European territory, can still find protection elsewhere, the zero-sum game effect of this policy is protection nowhere.

Additionally, under international law, “no State can avoid responsibility by outsourcing or contracting out its responsibilities”. Physical distance and cooperation with third countries does not exonerate EU member States from their non-refoulement and related legal duties. By this point, an assessment of “contactless responsibility” for gross violations of international law is necessary if not inevitable.

And the consequences for migrants are disastrous. It is true that the number of refugees crossing the sea has decreased this year relative to numbers comparable to pre-2014 levels. Nonetheless, the probability of dying for migrants crossing the Mediterranean has gone up; the International Organization for Migration reports that 24 in 1000 migrants died in 2018 attempting to reach Europe compared to 4 in 1000 in 2015. EU outsourcing practices yield extremely coercive and violent checks, also contravening the right to leave one’s own country. Moreover, often the containment of refugees in Libyan controlled centers essentially means a definitive bar to asylum procedures.They cause suffering on such a scale that they may amount to atrocity crimes, according to the ICC Prosecutor and, as the UN High Commissioner for Human Rights has stated, they constitute "an outrage to the conscience of humanity".

A vicious circle

In addition to this, the dynamics reshaping third-country border infrastructures elucidate how borders can function as engines of, rather than just responses to, displacement. EU border externalization, even though it may decrease the number of migrants entering the EU, it does not halt migration flows in general; on the contrary, it risks creating a vicious cycle. It, in fact, entrenches forms of undemocratic governance in third countries: by empowering undemocratic actors willing to enact the European agenda, the EU grants them political validity, which is then used to undermine migrant rights and creates new incentives for migrants to search for a better life in Europe. Therefore, the range of border practices in themselves cause displacement. In this way, the short-term European goal of preventing asylum seeker flows compromises the stated long-term objective of tackling the root causes of displacement, thereby functioning as a mere ‘palliative cure’.

Externalization cannot function as a magic remedy to the Dublin ills. Looking to the future, EU migration policy should not be burdened by emergency solutions, but rather address the security-migration-development nexus in a more comprehensive and long-term fashion, including by expanding legal migration opportunities.

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