From Internal to Extra-Territorial Administrative Detention of Migrants

The great flux of migrants and asylum seekers towards and across the European frontiers is one of the highest debated issues nowadays. The fear of an alien “invasion”, intolerance and xenophobia in Europe have all been amplified by the perceived economic stagnation and eventually exploited for far-right political parties’ agenda. Protective policies in matter of immigration have been adopted and border control has been intensified, especially in the most vulnerable frontiers like the Mediterranean and the Balkans routes. It is for this reason that European States engaged in cooperation with non-European countries considered “secure”, charging them with the responsibility of handling the migratory movements in exchange of financial and material support. While the declared intent is to stop human smuggling and trafficking and prevent transnational crimes, the concrete effect is that the number of migrants who manage to reach the European coasts has been considerably reduced. The adoption of this policy of “cooperation” resulted in the creation of makeshift camps in some countries of transit, where migrants live in precarious conditions. In the worse cases, they are constrained in internment camps for an undefined amount of time and are subject to any form of abuse and human right violations. The above considerations pose some sound doubts about the level of involvement, and therefore liability, of the European States. Supposedly, European States cannot be held responsible for such violations since those operations are totally external to their direct sphere of control. Nevertheless, the general impression is that theirs is just an attempt to escape legal responsibility for these breaches, in particular under the European Convention of Human Rights (ECHR) in virtue of alleged lack of jurisdiction of the European Court of Human Rights (ECtHR) in the non-European countries. It may be held that a deliberate circumvention of human rights obligations is nevertheless capable of triggering responsibility under international law. The following paragraphs will analyse the obligations of European States under international law and the norms of the ECHR in respect to administrative detention of migrants. Then, an overview will be provided on the agreements between the European Union (EU) and its Member States (MS) and third countries, with a particular focus on the 2017 Italian-Libyan pact. In the last two sectors an attempt will be made to establish the possible profiles of responsibility of the MS of the EU for the actions perpetrated outside their territory, both under international law and under regional human rights law. For matters of simplicity, this contribution will focus primarily on refugees and asylum seekers, while issues relating to economic immigration will be left apart. However, since the recognition of the refugee status has a merely declarative nature, the principle of non-refoulement is applicable both to refugees and asylum seekers, even before the formal recognition of the status. In this respect it is impossible to make an a priori distinction among immigrants, at least until it is clear who has the intention to submit an application for asylum and who declares that he or she is migrating merely for economic purposes. It is also worth noticing that the principles discussed below entail to fundamental human rights that must be recognised to every person without discrimination, thus in abstract they are applicable to all cases… (segue)