Irregular Migration by Sea: A Critical Analysis of EU and EU Member State Extraterritorial Practice in the Light of International Law

Since 2011, the arrival of more than one million migrants via irregular means on overcrowded, unseaworthy vessels fleeing persecution, civil war, poverty and devastation, has generated contradictory policies and legal measures from the EU and its Member States. On the one hand, the irregular migration crisis in the Mediterranean has been linked with notions of humanitarianism, focusing on search and rescue and the provision of aid including water, food, medical care, and shelter; while on the other, it has prompted increased security through extraterritorial border controls in order to try and tackle human smuggling and discourage irregular migration. This thesis examines the implications of these extraterritorial border control measures for the rights of irregular migrants and questions the measures' compliance with international human rights law and other international obligations. In particular, it investigates the Italian and Greek extraterritorial practices of interception and push-backs to Libya and Turkey from January 2014 to June 2016. Furthermore, this research investigates the EU's policy framework for these Member States' extraterritorial border controls at sea which resulted in rules for the surveillance of external sea borders under Frontex's coordination (the Sea Borders Regulation of 15 May 2014) and, more recently, the EU-Turkey statement of 18 March 2016 to facilitate the accelerated return of irregular migrants from Greece to Turkey.

Based on a critical appraisal of these measures in the light of international law, this thesis contributes to demonstrating that the Italian and Greek extraterritorial practices and the EU's strategy (through Frontex) of 'stopping boats' carrying irregular migrants and 'altering their course' to a third country or onto the high seas, ostensibly in order to save lives, are in breach of their obligations under international law, especially the Law of the Sea and international human rights law and refugee law. It is argued that these extraterritorial practices have not only violated international human rights law and other international obligations but have also significantly increased the death toll among irregular migrants attempting to cross the Mediterranean Sea. It is also argued here that the Sea Borders Regulation has not only failed to unify the rules on interception, search and rescue and disembarkation during Frontex joint operations at sea, but also seeks to legitimise these practices contrary to a 'good faith' interpretation and implementation of international human rights law and other international obligations.

The thesis concludes that in light of the law of international responsibility, Greece and Italy bear international responsibility for every internationally wrongful act or omission attributable to their officials during interception operations at sea in violation of international human rights law or other international obligations, notably the right to life, the duty of search and rescue, the prohibition of inhuman or degrading treatment or punishment and the principle of non-refoulement. Moreover, it is argued that the EU in its institutional role is legally responsible for its own internationally wrongful acts and omissions in violation of its international obligations. This thesis contributes then by rebutting the assumptions often held in the scholarly arena by arguing that responsibility can be attributed to the EU for the internationally wrongful acts committed during Frontex joint operations and through decisions addressed to Member States authorising them to commit acts that are internationally wrongful.