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Externalisation of Migration Controls: A Taxonomy of Practices and Their Implications in International and European Law

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The externalisation of migration and border controls refers to a series of practices whereby States attempt to manage migration flows and enforce immigration policies beyond their borders, often by collaborating with other countries or non-state actors. Externalisation can involve various measures such as outsourcing border control functions, implementing agreements with neighbouring or transit countries to intercept migrants before they reach the State’s territory, and providing aid or incentives for other countries to prevent or reduce migration flows. Externalisation practices are employed to shift the burden of migration management away from the receiving state and onto other actors or territories, often to limit responsibilities and on the assumption that human rights obligations only apply territorially. In an attempt to challenge such an assumption and to frame the nature of human rights obligations in the context of externalisation practices, this article develops a taxonomy of externalisation measures and provides an overview of the jurisdictional approaches to the extraterritorial scope of human rights obligations.
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Vol.:(0123456789)
Netherlands International Law Review
https://doi.org/10.1007/s40802-024-00253-9
123
ARTICLE
Externalisation ofMigration Controls: ATaxonomy
ofPractices andTheir Implications inInternational
andEuropean Law
SalvatoreFabioNicolosi1
Accepted: 25 March 2024
© The Author(s) 2024
Abstract
The externalisation of migration and border controls refers to a series of practices
whereby States attempt to manage migration flows and enforce immigration policies
beyond their borders, often by collaborating with other countries or non-state actors.
Externalisation can involve various measures such as outsourcing border control
functions, implementing agreements with neighbouring or transit countries to inter-
cept migrants before they reach the State’s territory, and providing aid or incentives
for other countries to prevent or reduce migration flows. Externalisation practices
are employed to shift the burden of migration management away from the receiving
state and onto other actors or territories, often to limit responsibilities and on the
assumption that human rights obligations only apply territorially. In an attempt to
challenge such an assumption and to frame the nature of human rights obligations
in the context of externalisation practices, this article develops a taxonomy of exter-
nalisation measures and provides an overview of the jurisdictional approaches to the
extraterritorial scope of human rights obligations.
Keywords Externalisation· Border controls· Migration deals· Offshore asylum
processing· Extraterritorial obligations· Refugees· Human rights
* Salvatore Fabio Nicolosi
s.nicolosi@uu.nl
1 Utrecht University Law School, Utrecht, TheNetherlands
S.F.Nicolosi
123
1 Setting theScene
International migrants seek protection or better opportunities in foreign States.1
Once they have reached the territory of these States, all manner of protections apply,
such as the prohibition of collective expulsion, and the enjoyment of at least some
human rights.2 In an attempt to control migratory flows and to curb irregular migra-
tion, over the years States have progressively ‘externalised’ migration controls
through several mechanisms that eventually prevent human rights safeguards from
being applied. The externalisation of migration controls, understood as ‘the range of
processes whereby … States complement policies to control migration across their
territorial boundaries with initiatives that realize such control extra-territorially and
through other countries and organs rather than their own’,3 is ‘no longer a novelty
but rather a widespread practice, both at European and non-European levels.4
Examples of such initiatives include sanctions on carriers transporting irregular
migrants,5 maritime interdiction operations,6 pushbacks to unsafe countries,7 and the
establishment of offshore migrant processing centres.8 States use these mechanisms
to prevent migrants from reaching their shores, applying for territorial asylum, or
invoking fundamental rights guarantees. The application of such mechanisms has
created accountability challenges as States have been reluctant to recognise that
human rights violations committed in the context of these externalisation practices
give rise to accountability, following the assumption that human rights only apply
territorially.9
1 According to the International Organization for Migration (IOM) (2019), p. 212, an international
migrant is defined as ‘any person who is outside a State of which he or she is a citizen or national, or, in
the case of a stateless person, his or her State of birth or habitual residence. The term includes migrants
who intend to move permanently or temporarily, and those who move in a regular or documented manner
as well as migrants in irregular situation’.
2 See Costello (2015); more critically see Dembour and Kelly (2012).
3 Moreno-Lax and Lemberg-Pedersen (2019). More generally, Cantor et al. (2022), p. 120, defined
externalisation as ‘the process of shifting functions normally undertaken by a State within its own terri-
tory so they take place, in part or in whole, outside its territory’. In social sciences other broad definitions
have been provided, see e.g. Stock etal. (2019), describing ‘externalisation’ as ‘the extension of border
and migration controls from the so-called migrant receiving nations in the Global North and into neigh-
bouring countries or sending nations in the Global South’.
4 Liguori (2019), p. 4.
5 Feller (1989).
6 Moreno-Lax (2017b).
7 The United Nations Human Rights Council (UNHRC), ‘Report on Means to Address the Human
Rights Impact of Pushbacks of Migrants on Land and at Sea: Report of the Special Rapporteur on the
Human Rights of Migrants’, 12 May 2021, UN Doc. A/HRC/47/30, para. 34, defined pushbacks as meas-
ures that result in migrants, including asylum seekers, ‘being summarily forced back, without an individ-
ual assessment of their human rights protection needs, to the country or territory, or to sea, whether it be
territorial waters or international waters, from where they attempted to cross or crossed an international
border’. As stressed by D. Cantor etal. (2022), p. 134, ‘pushbacks conducted in cooperation with a proxy
State that drags people back to its own territory before they reach the destination State are known as
“pullbacks”’. For more references see Breed (2016).
8 Blay, Burn and Keyzer (2007).
9 See in particular Palombo (2023).
Externalisation ofMigration Controls: ATaxonomy ofPractices…
123
Such a scenario raises the normative question of whether, and to what extent,
States and organizations, such as the European Union (EU), have extraterritorial
obligations towards migrants who have not yet reached the territory of destination
countries, such as migrants at sea, migrants in detention centres abroad, or migrants
applying for a visa outside the territory. To address this overarching research ques-
tion, this Special Issue offers various perspectives and integrates an analysis of some
of the most pressing challenges and ‘legal black holes10 in terms of accountabil-
ity raised by the practices of externalisation of migration control implemented by
States.
Before delving into the analysis of these challenges, and, in an attempt to provide
a general background and analytical framework, this introductory article pursues
two goals. First, it aims to develop a taxonomy of externalisation measures based on
the distinct features and the evolution of these measures in light of the relevant inter-
national practice. Second, it will frame the nature of human rights obligations and
the role they play in the context of externalisation practices by unfolding a gradation
of jurisdictional approaches to the extraterritorial scope of these obligations. Ulti-
mately, an overview of all articles collected in this Special Issue will be outlined to
emphasise the accountability gaps opened by these externalisation practices and the
various avenues suggested by the authors of this Special Issue to close these gaps.
2 A Protean Taxonomy ofExternalisation Practices
The phenomenon of externalisation has entered academic debates,11 mirroring the
growing practices thereof that have been taking place over the years within various
regions of the international community. As has been emphasised, in the past dec-
ade, there has been an increasing tendency in certain countries and regions such as
the EU, the United States (US) and Australia, ‘to transfer and diversify border con-
trol and migration management mechanisms not only to neighbouring … countries
…, but also to more distant countries in Africa, Asia, the Middle East and Central
America’.12 While scholars have especially considered the phenomenon of externali-
sation as a response in countries of the Global North to the migratory pressure from
the Global South,13 recently, practices of externalisation have been equally adopted
by countries in the Global South, as illustrated by the pushback practices utilized by
Indonesia, Malaysia or Thailand against the Rohingya asylum seekers.14
This section aims to provide a conceptualisation of the phenomenon of externali-
sation and its contextualisation in light of the most recent international practice by
proposing a taxonomy of externalisation practices.
10 Wilde (2015).
11 See, ex multis, FitzGerald (2019); Moreno-Lax (2017a); Gammeltoft-Hansen (2013); Ryan and Mitsi-
legas (2010).
12 Stock etal. (2019), p. 3. See also Freier etal. (2021).
13 Stock etal. (2019).
14 Human Rights Watch (2015). For more references see Gammeltoft-Hansen and Tan (2021), p. 504.
S.F.Nicolosi
123
2.1 Conceptualising Externalisation Measures
The concept of externalisation especially entered the vocabulary of international
migration law in the 2000s to describe, as posited by scholars, ‘any migration con-
trol measure affecting refugees undertaken either unilaterally or multilaterally, either
extraterritorially or with extraterritorial effects’.15 Despite such a relatively recent
minting, practices of the externalisation of border and migration control date back to
the very first phase of the development of modern national migration policies at the
beginning of the twentieth century,16 even though certain externalisation practices,
such as carrier sanctions, have been used since the eighteenth century.17 Admittedly,
a major development in externalisation practices came with the progressive shift
to immigration controls in State policies and the introduction of visa requirements
as ‘an efficient, up-front way of preventing undesirable migrants from entering the
national territory’.18
Visa regimes have been considered as examples par excellence of the externalisa-
tion of migration controls but they have been progressively accompanied by other
strategies and techniques, such as carrier sanctions meant to prevent people without
a visa from boarding aircraft, thus constituting ‘an enforcement mechanism for visa
requirements’19 or the practice of ‘border pre-clearance’ adopted by certain States to
operate pre-screening border control facilities at airports and other ports of departure
located outside their territory pursuant to agreements with host countries.20 Another
traditional strategy for the externalisation of border controls entails the practice of
high seas interdictions, namely measures employed by a State to prevent, further
onwards, international travel by persons who have already commenced their jour-
neys.21 This is a practice that before becoming a deadly routine in the Mediterranean
was known in other areas, especially the Americas, following the Haitian crisis.22
In an attempt to build a taxonomy of externalisation practices that could help
frame such a growing, yet diversified, phenomenon in international practice, it must
be stressed that externalisation practices must be regarded dynamically in the con-
text of the evolution of the international governance of migration policies. Accord-
ingly, a first approach, based on a historical perspective, contributes to explaining
the switch from unilateral externalisation measures undertaken by a State to forms
of bilateral or multilateral cooperation. These involve the participation of different
15 Tan (2021), p. 8.
16 For more references on the origins and development of international migration law see Chetail (2019).
17 The reference is to the practice of Denmark levying fines on shipowners bringing in Jewish passen-
gers, see Gammeltoft-Hansen and Tan (2021), p. 503.
18 Czaika, de Haas and Villares-Varela (2018).
19 Feller (1989), p. 50.
20 See e.g. United Kingdom, House of Lords (Judicial Committee), Regina v. Immigration Officer at
Prague Airport and Another, Ex parte European Roma Rights Centre and Others, [2004] UKHL 55,
9 December 2004, available at: https:// www. refwo rld. org/ cases ,GBR_ HL,41c17 ebf4. html (accessed 6
March 2024).
21 United Nations High Commissioner for Refugees (UNHCR) (2000). For references see Guilfoyle
(2017); O’Sullivan (2017).
22 See, inter alia, Ralph (1993).
Externalisation ofMigration Controls: ATaxonomy ofPractices…
123
States, such as in the case of the recent ‘migration deals’ concluded between States
or by regional organizations like the EU and third countries,23 or the support of
institutional bodies, such as the European Border and Coast Guard Agency, known
as Frontex.24
Such a historical evolution has been accompanied by a change in the degree of
formalisation of these arrangements that have been shifting from traditional agree-
ments to the increasing use of soft law measures,25 such as Memoranda of Under-
standing. As will be discussed in greater detail in the next subsection, examples
include the 5-year Asylum Partnership Arrangement detailed in a non-binding mem-
orandum between the United Kingdom (UK) and Rwanda, even though in Decem-
ber 2023 it was upgraded to a formal treaty,26 or the various ‘deals’ promoted by the
EU such as the 2016 EU-Turkey Deal.27
Finally, a taxonomy of externalisation arrangements could take into considera-
tion two additional features, namely the overall function and the territorial manifesta-
tion of the various externalisation measures. With regard to their function, it may be
stressed that more recent externalisation techniques are not exclusively related to the
management of border controls but also include the extraterritorial processing of asy-
lum requests, often—but not necessarily—coupled with the transfer of responsibility
for international protection to other countries.28 Concerning the territorial manifesta-
tion of externalisation practices, as emphasised by Tan, while many externalisation
practices involve actions performed by States outside their borders to prevent migrants
from entering their territory, more broadly, these practices could include measures
taken within the State after migrants’ arrival but with the effect of ‘externalising’
responsibilities over migrants and operationalising migrant transfers outside the State
23 See more recently Xanthopoulou (2024).
24 Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019
on the European Border and Coast Guard and repealing Regulation (EU) Nos. 1052/2013 and (EU)
2016/1624 [2019] OJ L 295/1–131. For more references see Scipioni (2018). More specifically see
extensively Raimondo (2024).
25 For a first analysis of this trend see Nicolosi (2013).
26 United Kingdom (UK) Home Office, Memorandum of Understanding between the government of the
United Kingdom of Great Britain and Northern Ireland and the government of the Republic of Rwanda
for the provision of an asylum partnership arrangement, 13 April 2022, at https:// www. gov. uk/ gover
nment/ publi catio ns/ memor andum- of- under stand ing- mou- betwe en- the- uk- and- rwanda/ adden dum- to- the-
memor andum- of- under stand ing (accessed 6 March 2024); Agreement between the Government of the
United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda
for the provision of an asylum partnership to strengthen shared international commitments on the
protection of refugees and migrants (‘Rwanda Treaty’), 5 December 2023 (currently awaiting ratification
by both Parties), at: https:// www. gov. uk/ gover nment/ publi catio ns/ uk- rwanda- treaty- provi sion- of- an-
asylum- partn ership/ uk- rwanda- treaty- provi sion- of- an- asylum- partn ership- acces sible (accessed 6 March
2024); Safety of Rwanda (Asylum and Immigration) Bill, HL Bill 41, 6 December 2023, at: https:// bills.
parli ament. uk/ publi catio ns/ 53802/ docum ents/ 4312 (accessed 6 March 2024), currently at the Committee
Stage. The Rwanda Treaty aims to put the former Memorandum of Understanding into a legally binding
form with certain modifications. For an analysis see Robinson (2023).
27 EU-Turkey Statement, Press Release (18 March 2016) available at https:// www. consi lium. europa. eu/
en/ press/ press- relea ses/ 2016/ 03/ 18/ eu- turkey- state ment/ (accessed 6 March 2024). For references see ex
multis, Kassoti and Carrozzini (2022).
28 See UNHCR (2021), para. 5.
S.F.Nicolosi
123
territory.29 An example of the latter is the UK-Rwanda Asylum Plan or Rwanda Deal,
which entailed the transfer of asylum seekers and irregular migrants to Rwanda for
asylum processing. Table1 provides a synoptic overview of some of the most com-
mon externalisation practices illustrating the function and the territorial manifestation.
2.2 Contextualising Multilateral Externalisation Practices
The most recent practice of international law displays the contextual use of a wide
range of externalisation measures. Nonetheless, while such externalisation prac-
tices have historical precedents, as mentioned in the previous subsection, a distinct
feature of the modern practice of externalisation is inter-state or multi-actor coop-
eration aimed at corroborating what scholars have defined as ‘cooperative deter-
rence’30 or ‘architecture of repulsion’,31 a paradigm of international cooperation in
which States and/or international organizations cooperate to prevent the arrival of
migrants, thereby avoiding the responsibilities that will ensue.
A manifestation of this paradigm is reflected in the various ‘deals’ concluded by
States of arrival (usually in the Global North) with transit countries or third countries
(usually in the Global South), which have also been considered a form of ‘neocolonial-
ism’.32 The implementation of such deals has resulted in pushback or pullback practices
as well as extraterritorial processing of asylum requests and protection obligations.33
One of the oldest examples of this paradigm of cooperative deterrence is the 1981
United States–Haiti Agreement,34 which authorised the US Coast Guard to inter-
dict Haitian vessels on the high seas and return them to Haiti. Such a practice that
was even condoned by the US Supreme Court,35 later resulted in a decision by the
Table 1 Externalisation Practices by Function and Territorial Manifestation
Externalisation measures Function Territorial manifestation
Visa policies Management of border controls Outside State borders
Carrier Sanctions Management of border controls Outside State borders
Border Pre-Clearance Management of border controls Outside State borders
High Seas Interdiction Management of border controls Outside State borders
Pushback/Pullback practices Management of border controls Outside/inside State borders
Funding, equipping and training
in third countries
Management of border controls Outside State borders
Offshore Asylum Processing Extraterritorial processing of asylum
requests with or without transfer of
protection responsibilities
Outside/inside State borders
29 Tan (2021), p. 8.
30 Gammeltoft-Hansen and Hathaway (2015).
31 FitzGerald (2020), p. 6.
32 See e.g. Grewcock (2014).
33 For a more detailed analysis see Cantor etal. (2022), pp. 132 et seq.
34 Haiti-United States: Agreement to Stop Clandestine Migration of Residents of Haiti to the United
States, Exchange of Letters, Port-au-Prince, 23 September 1981, text available in (1981) ILM 1198–
1202, for a recent analysis of the paradigmatic role played by such an agreement see Tennis (2021).
35 Supreme Court of the United States, Sale v. Haitian Centers Council, Inc., 509 US 155 (1993).
Externalisation ofMigration Controls: ATaxonomy ofPractices…
123
Inter-American Commission on Human Rights (IACHR) confirming multiple viola-
tions of human rights as enshrined in the American Declaration of the Rights and
Duties of Man, including Article XXVII on the right to seek and receive asylum.36
Admittedly, the ‘Pacific Solution’ introduced by Australia in 2001 and revamped
in 2013 as the ‘Regional Settlement Arrangement (RSA)’, entailing the offshore pro-
cessing of asylum seekers by Australian and UNHCR officials in Nauru and Papua
New Guinea, has long been the most debated set of multilateral externalisation
arrangements.37 The Federal Court of Australia endorsed these actions, following
the Tampa incident,38 as being consistent with the Refugee Convention.39
More recently, the UK and Italy have come under the spotlight for their bilateral
arrangements respectively with Rwanda and Albania. These two arrangements could be
analysed in parallel: they are both examples of the extraterritorial processing of asylum
requests, which, as has been highlighted, ‘take place through a range of legal, policy and
operational modalities, including the use of “offshore processing”, exclusive jurisdiction
zones in other States and, in some cases, the application of safe third country concepts’.40
The UK-Rwanda Asylum Plan or Rwanda Deal combines offshore processing
and the operationalisation of the safe third country clause.41 As mentioned in the
previous subsection, under this arrangement, asylum seekers in the UK would be
relocated to Rwanda before the adjudication of their asylum claims. The responsibil-
ity for evaluating their eligibility for international protection would then fall under
36 IACHR, The Haitian Centre for Human Rights etal. v. United States, Case 10.675, 13 March 1997.
In this connection, it is worth mentioning that in 1977 the US signed the American Convention on
Human Rights (Pact of San José, Costa Rica) (B-32), 22 January 1969, but has not proceeded with its
ratification.
37 Migration Legislation Amendment (Excision from the Migration Zone) (Consequential Provisions)
Act, 27 September 2001. This amendment allowed ‘offshore entry persons’ to be taken to ‘declared
countries’ (Nauru and Papua New Guinea). For further developments, see Regional Resettlement
Arrangement between Australia and Papua New Guinea, 19 July 2013 and Memorandum of Understand-
ing between the Government of the Independent State of Papua New Guinea and the Government of
Australia, relating to the transfer to, and assessment and settlement in, Papua New Guinea of certain per-
sons, and related issues, 6 August 2013; Memorandum of Understanding between the Republic of Nauru
and the Commonwealth of Australia, relating to the transfer to and assessment of persons in Nauru, and
related issues, 3 August 2013.
38 The incident refers to an event that occurred in August 2001, involving the Norwegian freighter MV
Tampa. The ship rescued 438 refugees from a sinking Indonesian vessel in international waters near
Christmas Island, an Australian territory in the Indian Ocean. Initially intending to head to Indonesia, the
Norwegian captain changed course to Christmas Island after receiving threats from some asylum seek-
ers. Australia opposed this decision and threatened the MV Tampa with people-smuggling charges if it
disembarked the rescued individuals in Australia. Australia then closed its territorial sea to the vessel.
Despite this, the MV Tampa entered the territorial sea due to shortages of food, water, and medical sup-
plies onboard. In response, Australia sent Special Armed Services troops to board and take control of the
vessel. For more references, see, inter alia, Rothwell (2002).
39 Federal Court of Australia, Ruddock v. Vadarlis (2001) 110 FCR 491. On the other hand, it is worth
noting that on 26 April 2016 the Supreme Court of Papua New Guinea in Namah v. Pato [2016] PGSC
13 ruled that Manus Island detention facility is unconstitutional and illegal and as such should be closed.
For an autobiographical account of the detention conditions in Manus Island, see Boochani (2018).
40 Cantor etal. (2022), p. 141.
41 On the controversial aspects of the safe country clause see especially Moreno-Lax (2015).
S.F.Nicolosi
123
Rwanda’s national asylum system. Additionally, those transferred to Rwanda, even
if granted refugee or humanitarian status, would be required to remain in Rwanda,
which has been designated as a safe country by the UK legislature. Such a deal
entails a transfer of responsibility for international protection to an allegedly safe
country even if it has no meaningful connection with the refugees. It is regrettable
that, despite the various concerns raised by the UNCHR42 as well as a recent judg-
ment by the UK Supreme Court, which rejected the presumption of safety, due—
inter alia—to the risk of refoulement,43 and an acknowledgment by the government
that details about the measures to ensure respect for non-refoulement have yet to be
agreed upon,44 the overall goal is to continue this externalisation policy with the
adoption on 25 April 2024 of the Safety of Rwanda Act. Interestingly, it is worth
noting that the UK Supreme Court also used another externalisation arrangement as
evidence to conclude that Rwanda could not offer enough guarantees about its abil-
ity to fulfil its obligations vis-à-vis the risks of refoulement. The Court referred to
Rwanda’s failure to comply with the non-refoulement principle in an agreement for
the removal of asylum seekers from Israel to Rwanda operating between 2013 and
2018.45
Conversely, the 2023 arrangement between Italy and Albania46 aims to trans-
fer asylum seekers who are rescued at sea by Italian vessels to two centres to be
built in Albania, where after disembarkation, identification and border procedures
will take place. This arrangement is different from the controversial Italy-Libya
Memorandum, according to which Italy committed itself to provide technical and
42 See more recently UNHCR (2024).
43 UK Supreme Court, R (on the application of AAA (Syria) and others) (Respondents/Cross Appel-
lants) v. Secretary of State for the Home Department (Appellant/Cross Respondent) [2023] UKSC 42,
15 November 2023, available at: https:// www. refwo rld. org/ cases ,UK_ SC,6554d 1584. html (accessed 6
March 2024).
44 UK Home Secretary (2024). Interestingly, the High Court of Ireland in two cases, A. v. The Minister
for Justice, Ireland and the Attorney General (Record no. 2023/640JR), and of B. v. The International
protection Appeals Tribunal and the Minister for Justice and Equality, Ireland and the Attorney General
(Record no. 2023/104JR), 22 March 2024, very recently ruled that the designation of UK as a safe third
country is unlawful in light of this externalisation plan with Rwanda. Regrettably, on 25 April 2024 the
Parliament of the UK adopted the Safety of Rwanda (Asylum and Immigration) Act 2024. This requires
decision makers to regard Rwanda as ‘safe’ for removal, regardless of the specific facts on the ground.
45 For more information in this regard see Guthmann (2018).
46 Protocollo tra il Governo della Repubblica Italiana e il Consiglio dei ministri della Repubblica di
Albania per il rafforzamento della collaborazione in materia migratoria (Protocol for the Strengthen-
ing of Collaboration in the Field of Migration, hereinafter ‘Italy-Albania Protocol’) 6 November 2023,
text available at: www. esteri. it/ it/ sala_ stampa/ archi viono tizie/ comun icati/ 2023/ 11/ proto collo- tra- il- gover
no- della- repub blica- itali ana-e- il- consi glio- dei- minis tri- della- repub blica- di- alban ia- per- il- raffo rzame nto-
della- colla boraz ione- in- mater ia- migra toria/ (accessed 6 March 2024). The Protocol has completed the
process of ratification before the Italian Parliament on 15 February 2024, see the report of the delib-
eration before the Italian Senate at: https:// www. senato. it/ 3818? seduta_ assem blea= 25443 (accessed 6
March 2024) and before the Albanian Parliament on 22 February 2024, see Bytyci (2024). For a short
analysis see Piccoli (2023).
Externalisation ofMigration Controls: ATaxonomy ofPractices…
123
technological support to the Libyan bodies in charge of the fight against illegal
immigration, resulting in a practice of pullback.47
Additionally, in contrast to the UK-Rwanda Deal, those who qualify for interna-
tional protection will be resettled in Italy, while those who do not qualify will be
repatriated from Albanian territory.48 Accordingly, instead of transferring responsi-
bility to Albania, this arrangement provides for an externalised exercise of jurisdic-
tion in the territory of another State, with its consent. The government of Albania
will give the Italian authorities the right to use the identified areas on which relevant
Italian and European rules on border procedures will be applicable.49 Such a cir-
cumstance did not constitute an obstacle for the Albanian Constitutional Court to
declare, on 29 January 2024, that the Protocol does not harm the territorial integrity
of Albania and thus it considered the Protocol to be valid.50 The judgment raised an
important matter in terms of jurisdiction. Even though the Court concluded that a
dual jurisdiction operates for human rights and freedoms, meaning that the Italian
jurisdiction in the two centres in question does not exclude the Albanian jurisdic-
tion, it is not clear how such a dual jurisdiction will be enforced, as the Protocol
seems to only acknowledge the exclusive jurisdiction of Italy over the two identified
areas.51 This is an element that could deserve further reflection, because in practice
it may give rise to conflicts of jurisdiction.
Multilateral forms of externalisation practices have been progressively supported
by the EU. Starting with the EU-Turkey Deal of 2016, aiming to prevent asylum
seekers from leaving Turkey for Greece and obliging Turkey to take asylum seekers
back, soft agreements and partnerships with third countries in the area of migra-
tion have become a distinct feature of the external dimension of EU migration law.52
Even if the EU General Court considered the deal with Turkey a mere ‘political
arrangement’ concluded by the EU Member States,53 the support of the EU is politi-
cally, financially and technically visible. Additionally, such a deal left its imprint
in the subsequent arrangements concluded or sought by the EU. These include a
Memorandum of Understanding with Tunisia, which will be extensively analysed
in this Special Issue by Strik and Robbesom,54 as well as a recent Joint Declaration
47 Memorandum d’intesa sulla cooperazione nel campo dello sviluppo, del contrasto all’immigrazione
illegale, al traffico di esseri umani, al contrabbando e sul rafforzamento della sicurezza delle frontiere
tra Io Stato della Libia e la Repubblica Italiana (2017 Italy-Libya Memorandum of Understanding), 2
February 2017, renewed in 2020, full text at: https:// www. gover no. it/ sites/ gover no. it/ files/ Libia. pdf
(accessed 6 March 2024), Art. 1(C). For more references see Pijnenburg (2018).
48 See the Italy-Albania Protocol, Art. 4(3).
49 Ibid., Art. 3. The applicability of EU law is controversial, see Celoria and De Leo (2024).
50 Gjykata Kushtetuese e Republikës së Shqipërisë (Constitutional Court of the Republic of Albania),
Press release (29 January 2024), at: https:// www. gjk. gov. al/ web/ Njoft im_ per_ shtyp_ 3025_1- 94. php
(accessed 6 March 2024).
51 Ibid.
52 Carrera etal. (2019).
53 General Court of the EU, Case T-192/16 NF v. European Council, ECLI:EU:T:2017:128.
54 Memorandum of Understanding on a strategic and comprehensive partnership between the EU and
Tunisia, 16 July 2023, at: https:// ec. europa. eu/ commi ssion/ press corner/ detail/ en/ IP_ 23_ 3887 (accessed 6
March 2024). For a more detailed analysis see the article by Strik and Robbesom (2024) in this Special
Issue, see also Giuffrè (2022).
S.F.Nicolosi
123
with Egypt,55 both aimed at preventing the departure of people who wish to seek
asylum in Europe.
A form of multi-actor externalisation arrangement is ultimately related to the
external actions of EU agencies, formalised in status agreements between the EU
and third countries, such as the status agreement with Albania and some Balkan
States, allowing Frontex to carry out joint surveillance operations or rapid border
interventions to manage migratory flows and counter irregular immigration.56
All these externalisation arrangements raise complex questions of accountability,
whose answer first requires an understanding of the scope of human rights obliga-
tions extraterritorially, an issue that will be briefly examined in the next section.
3 Externalisation andExtraterritorial Jurisdiction: AGradation
ofApproaches
The externalisation arrangements analysed in Sect.2 are predicated on the assump-
tion that human rights obligations extend no further than the territorial borders of
the States in question.57 Such a territorial approach to human rights obligations is
confirmed by the inclusion in several human rights treaties of territorial or juris-
dictional clauses limiting the scope of States’ obligations. Examples can be drawn
at the universal level from the International Covenant on Civil and Political Rights
(ICCPR)58 or at the regional level from the European Convention on Human Rights
(ECHR).59
Such a jurisdictional approach has limitations that may undermine the univer-
sal application of human rights, because, as has been emphasised by Gibney, ‘all
states have human rights obligations and these obligations apply both at home and
55 Joint Declaration on the Strategic and Comprehensive Partnership between the Arab Republic of
Egypt and the European Union, 17 March 2024, at: https:// neigh bourh ood- enlar gement. ec. europa. eu/
news/ joint- decla ration- strat egic- and- compr ehens ive- partn ership- betwe en- arab- repub lic- egypt- and- europ
ean- 2024- 03- 17_ en. For news commentaries see, inter alia, Vinocur (2024).
56 Status Agreement between the European Union and the Republic of Albania on actions carried out by
the European Border and Coast Guard Agency in the Republic of Albania, ST/10290/2018/INIT [2019]
OJ L 46; Agreement between the European Union and Montenegro on operational activities carried out
by the European Border and Coast Guard Agency in Montenegro 8354/23; Council Decision on the con-
clusion of the Agreement between the European Union and the Republic of North Macedonia on opera-
tional activities carried out by the European Border and Coast Guard Agency in the Republic of North
Macedonia; Status Agreement between the European Union and the Republic of Serbia on actions car-
ried out by the European Border and Coast Guard Agency in the Republic of Serbia, ST/15579/2018/
REV/1 [2018] OJ L 202.
57 For more references see Gibney (2022), p. 14.
58 UN General Assembly, International Covenant on Civil and Political Rights, 999 UNTS 171, 16
December 1966, Art. 2(1) binding every State party ‘to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant’.
59 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Free-
doms, as amended by Protocols Nos. 11 and 14, ETS 5, 4 November 1950, Art. 1, binding the contract-
ing parties to ‘secure to everyone within their jurisdiction the rights and freedoms defined in Section I of
this Convention’.
Externalisation ofMigration Controls: ATaxonomy ofPractices…
123
abroad’.60 This jurisdictional approach to human rights obligations explains that
under human rights treaties, the attribution of responsibility for the human rights
violations of individuals is determined according to the State’s exercise of jurisdic-
tion.61 This has constituted the pretext for States to develop externalisation practices
aimed at preventing migrants from falling under their jurisdiction and circumvent-
ing responsibility for refugee protection. These limitations have adversely impacted
migrants as individuals who often find themselves outside the borders of countries
of destination. It is nonetheless important to stress that the applicability of the Ref-
ugee Convention is not limited by any jurisdictional clause; State parties are thus
bound even when engaging in activities outside their territory, although the set of
duties they have vis-à-vis refugees depends ‘on the intensity of the territorial bond
between a refugee and the state of asylum’.62
It is therefore worth reiterating the crucial question of whether and to what extent
States have extraterritorial obligations towards migrants who have not yet reached
their territory. To address this question a gradation of jurisdictional approaches to
human rights obligations can be proposed drawing from the practice of international
human rights adjudicators. These have progressively moved from a traditional model
of essentially territorial jurisdiction, based on the assumption that in international
law States have the competence to make and enforce the law on their territory,63 to a
model based on the fact that human rights obligations may stem from the exercise of
some form of control over a territory or an individual.
Such a further gradation has greatly contributed to recalibrating the focus on
migrants as human beings in the legal sense.64 Since the 1990s human rights litiga-
tion has been used to frame migrants’ rights and several cases have been decided
before human rights courts and committees, which lead the way in the extraterrito-
rial application of human rights obligations vis-à-vis migrants.65 Examples include
cases on State policies designating international zones that presumably fall out-
side their jurisdiction66 or operationalising the concept of a ‘safe country’ where
migrants can be transferred.67 A major development of this jurisdictional model has
been achieved with the development of the Hirsi doctrine by the European Court
of Human Rights (ECtHR). In a case concerning maritime patrols in international
waters, while upholding and expanding its previous case law,68 the Court concluded,
that ‘in the period between boarding the ships of the Italian armed forces and being
60 Gibney (2022), p. 23.
61 Chetail and Bauloz (2014), pp. 27–28.
62 Chetail (2019), p. 182. See more extensively Hathaway (2021).
63 See extensively Ryngaert (2015).
64 See more broadly Dembour (2015).
65 Gammeltoft-Hansen (2022).
66 See e.g. ECtHR, Amuur v. France, Appl. No. 19776/92, 25 June 1996.
67 ECtHR, T.I. v. United Kingdom, Appl. No. 43844/98, 7 March 2000. For references see Gil-Bazo
(2014).
68 ECtHR, Loizidou v. Turkey, Appl. No. 15318/89, 18 December 1996; Medvedyev and Others v.
France, Appl. No. 3394/03, 29 March 2010; Al-Skeini and Others v. UK, Appl. No. 55721/07, 7 July
2011. For more references see, inter alia, Karakaş and Bakırcı (2018).
S.F.Nicolosi
123
handed over to the Libyan authorities, the applicants were under the continuous and
exclusive de jure and de facto control of the Italian authorities’.69 It is worth reiterat-
ing that the recent arrangement between Italy and Albania would also fall under this
model, as the Protocol establishes the exclusive jurisdiction of Italy over the two
centres in the territory of Albania.
More recently, as will be extensively explained by Moreno-Lax in this Special
Issue, another level of gradation is emerging in the context of migration and border
controls, going beyond the exercise of effective control and allowing for the accept-
ance of a ‘functional model’ of jurisdiction.70
Such a model would rely on the implications of using public powers, such as the
ones that are necessary to implement migration or border control policies, result-
ing in prejudice against migrants because of the ‘foreseeable consequences’ of these
powers. Recently, this model was applied by the UN Human Rights Committee
(HRC) to a case brought by survivors of a vessel that sank in the Mediterranean Sea
causing more than 200 casualties.71
After several calls from the migrants aboard the vessel, the Italian authorities
passed the messages to the Maltese authorities, as the vessel was located within the
Maltese Search and Rescue Zone, but did not intervene until the Maltese authorities
asked them to later that day. An Italian navy ship (ITS Libra) near the distressed
boat did not arrive at the scene until it was too late. Given that the incident occurred
on the high seas, the Committee had to establish whether the victims were within
Italy’s jurisdiction for the purposes of the ICCPR. In this regard, by applying the
relevant international law rules,72 the Committee considered that ‘in the particular
circumstances of the case, a special relationship of dependency had been established
between the individuals on the vessel in distress and Italy’.73 According to the Com-
mittee, such a relationship was based on factual elements, namely, the initial calls to
the Italian authorities as well as the proximity of the Italian navy vessel ITS Libra,
in addition to the legal obligation to render assistance at sea. Thus, Italy was con-
sidered to be in breach of Article 6 (the right to life) in conjunction with Article
2(3) (the right to an effective remedy) of the Covenant, as it had failed to promptly
respond to distress calls.
Interestingly, this model, which also gave rise to criticism, as demonstrated by
the fact that the members of the Committee were all but in agreement about these
69 ECtHR, Hirsi Jamaa and Others v. Italy, Appl. No. 27765/09, 23 February 2012, para. 81.
70 See Moreno-Lax (2024). See also Moreno-Lax (2020).
71 HRC, A.S. and others v. Italy, CCPR/C/130/DR/3042/2017, A.S. and others v. Malta, CCPR/
C/128/D/3043/2017, 28 April 2021. For references see in particular Dimitrova (2023).
72 Especially the 1982 United Nations Convention on the Law of the Sea (UNCLOS) which requires
States to render assistance to persons in distress, also enshrined in the 1979 International Convention on
Maritime Search and Rescue (SAR) and the Regulations adopted pursuant to the 1974 International Con-
vention for the Safety of Life at Sea (SOLAS).
73 HRC (n. 71), para. 7.8.
Externalisation ofMigration Controls: ATaxonomy ofPractices…
123
findings,74 is soon to be tested in a case currently pending before the ECtHR.75 This
case concerns another ship in distress from which distress calls were made to the
Italian authorities before the boat started to sink. Despite the messages being com-
municated to all transiting ships, none of them effectively rescued the migrants in
distress. This scenario has thus become the context for testing to what extent ‘control
over (general) policy areas or (individual) tactical operations, performed or produc-
ing effects abroad’76 is relevant for claiming the responsibilities associated with the
violations of human rights occurring in the context of externalisation practices, such
as pullback or interstate arrangements, such as those between Italy and Libya. In this
connection, it is worth mentioning that very recently the Italian Supreme Court has
condemned the cooperation with the Libyan authorities resulting in the disembarka-
tion of migrants in a country that cannot be considered as a place of safety.77
In sum, while international human rights adjudicators such as the HRC have rec-
ognised a wider scope of extraterritorial applicability,78 controversies and assertions
regarding the fundamentally territorial aspect of human rights obligations persist.
This has to do with the construction and application of the notion of jurisdiction,79
which has also led to inconsistent approaches ‘to how and when states are bound by
human rights norms when their acts or omissions have effects abroad’.80
These jurisdictional approaches are mostly relevant in the context of claims
before human rights supervisory bodies, as these operate within the boundaries of
the relevant human rights treaties, which tend to have a jurisdictional clause. How-
ever, it must be stressed that the accountability challenges raised in the context of
externalisation practices and most of which are discussed in this Special Issue could
be dealt with through other legal frameworks or accountability channels, as they
emerge from the contributions in this Special Issue.
74 Ibid., Dissenting Opinions by of Andreas Zimmerman, Yuval Shany, Christof Heynes, Photini
Pazartzis and of David Moore.
75 ECtHR, S.S. and Others v. Italy, Appl. No. 21660/18, communicated on 26 June 2019. See Moreno-
Lax (2020).
76 Moreno-Lax (2020), p. 404.
77 Corte di Cassazione (Italian Supreme Court), judgment No. 4557, 1 February 2024.
78 See e.g. HRC, Delia Saldias de Lopez v. Uruguay, CCPR/C/13/D/52/1979, 29 July 1981, para. 12.2.
See also HRC, General Comment No. 31, UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 10.
For a broader contextualization see the Extraterritorial Obligations (ETO) Consortium, ‘Maastricht Prin-
ciples on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’
(hereinafter ‘Maastricht Principles’), 28 September 2011, at https:// www. etoco nsort ium. org/ wp- conte nt/
uploa ds/ 2023/ 01/ EN_ Maast richt Princ iples ETOs. pdf (accessed 6 March 2024). See also a Commentary
by De Schutter etal. (2012).
79 For a broader analysis see Shany (2020); Milanović (2013), see also Ryngaert (2015). More specifi-
cally see Den Heijer and Lawson (2012).
80 Müller (2022), p. 55.
S.F.Nicolosi
123
4 Outlining Accountability Challenges inExternalisation Practices
Issues of accountability have become prominent in the debates on the externalisa-
tion of border and migration controls.81 Despite the existence of international legal
frameworks to hold States or organisations responsible for human rights violations
occurring in the context of externalisation practices, the avenues and forums to
apply these frameworks are not easily accessible, especially for migrants. Channels
for accountability depend on the nature and distinct features of various externalisa-
tion practices. The taxonomy elaborated in Sect.2, coupled with the evolution of the
jurisdictional approaches to extraterritorial human rights obligations, constitute the
general framework underpinning the research in this Special Issue, exploring exter-
nalisation policies and accountability in migration control from several different
angles and proposing a number of different avenues towards better accountability.
The Special Issue offers a reflection on various examples of externalisation
arrangements, including strategic partnerships, pushback and pullback practices,
subcontracting international organizations or sharing information with third States’
authorities, and the attempts to close the accountability gaps therein.
Strategic partnerships or deals between States often have far-reaching implica-
tions, shaping policies and influencing the lives of countless individuals. Among
these, the EU externalisation strategy stands out prominently. Detailed extensively
in the article by Strik and Robbesom,82 the EU deal with Tunisia reveals a myriad
of concerns regarding the effectiveness and ethical implications of arrangements of
this nature. Their critical analysis suggests that, despite the intentions, these deals
often fall short of curbing migration while raising questions about transparency and
potential complicity in human rights violations. Pijnenburg contextualises similar
concerns in bilateral or multilateral partnerships between countries from the Global
North, such as Italy, the US and Australia, and countries from the Global South such
as Libya, Mexico and Indonesia.83 Despite varying degrees of human rights com-
mitments among these States, a recurring theme emerges: accountability for human
rights violations becomes alarmingly diminished through these externalisation
deals. Additionally, as will be explained by Tammone, these practices exacerbate
the risk of human trafficking,84 and undermine, as will be argued by McDonnell, the
human right to leave.85
More broadly, a paradigm of ‘irresponsibilisation’, as proposed by Moreno-Lax,86
has become a distinct feature of migration and border control policies. In this regard,
as will be highlighted by Aviat, advancements in technology further facilitate exter-
nalisation efforts, enabling the precise surveillance and interception of migrants, a
task that is prominently featured within the mandate of Frontex.87
81 Cantor etal. (2022), pp. 152 et seq.
82 Strik and Robbesom (2024).
83 Pijnenburg (2024).
84 Tammone (2024).
85 McDonnell (2024).
86 Moreno-Lax (2020).
87 Regulation (EU) 2019/1896, Art. 10(1)(x). See Aviat (2024).
Externalisation ofMigration Controls: ATaxonomy ofPractices…
123
Despite such a sophistication of externalisation practices, Negishi calls attention
to a paradoxical form of externalisation through internalisation: rather than forci-
bly repatriating migrants, they are coerced into a ‘voluntary’ return through vari-
ous means of psychological pressure and deprivation.88 Whether through visible
structures like Australia’s offshore detention centres or more subtle methods such as
withholding basic needs within the EU,89 the aim remains the same: to discourage
and expel migrants from State territories.
In the intricate web of externalisation arrangements, the concept of accountability
emerges as a critical focal point. The externalisation of migration, while purportedly
addressing security concerns, often leaves vulnerable individuals outside the protec-
tive ambit of international human rights. These are difficult to enforce in interna-
tional courts or forums, as accessibility for individuals remains cumbersome. This is
further complicated by the complex nature of situations with multiple actors (some-
times also non-state actors) and jurisdictions at play. Other obstacles to account-
ability are the immunity of States and certain organizations in domestic courts, and
the lack of transparency and consequently oversight in externalisation practices.90
Within this realm of complexity, this Special Issue proposes various avenues to
close these accountability gaps and uphold the dignity and rights of migrants.
One such avenue, supported by Moreno-Lax, proposes a ‘responsibilisation
model’ rooted in fundamental principles of international law. By linking account-
ability to the sovereign-authority nexus, States would be held responsible for actions
committed beyond their immediate borders and even without direct effective control
over individuals. This approach aims to uphold the universal and inalienable nature
of human rights by tracing responsibility back to the originating State. Negishi’s
contribution hinges on the principle of non-refoulement, ‘the cornerstone of interna-
tional refugee law’.91 By expanding this principle to encompass constructive or dis-
guised refoulement, accountability can be extended to include cases of externalisa-
tion through internalisation and forced ‘voluntary’ repatriation. This approach seeks
to prevent States from evading accountability by coercing migrants into purportedly
voluntary returns through hostile environments.
McDonnell offers an alternative perspective by invoking the human right to leave,
an often overlooked aspect in migration discourses. By highlighting the denial of
this right through externalisation measures, McDonnell suggests leveraging it as a
legal tool to challenge such policies in courts, thereby closing accountability gaps
and enhancing the protection of migrants’ rights.
In the context of the EU’s externalisation efforts, Strik and Robbesom advocate
intensified parliamentary scrutiny to improve accountability, particularly concern-
ing arrangements such as the EU-Tunisia Deal. By subjecting these arrangements to
rigorous oversight, the European Parliament could mitigate transparency issues and
ensure accountability in migration policies. The potential role of the ECtHR also
88 Negishi (2024).
89 More broadly see in this regard Baumgärtel (2019).
90 Cantor etal. (2022), pp. 152 et seq.
91 UNHCR (2007), para. 5.
S.F.Nicolosi
123
emerges as another avenue for accountability. By invoking Article 4 of the ECHR,
the Strasbourg Court could hold States accountable for their involvement in human
trafficking, as explained by Tammone. Finally, EU law might also suggest possi-
ble avenues: the potential of the EU’s non-contractual liability92 offers a hook to
challenge accountability gaps, particularly concerning the role of Frontex and its
involvement in information-sharing practices.
In essence, the Special Issue highlights that the pursuit of accountability in exter-
nalised migration policies necessitates a multifaceted approach, drawing upon legal
mechanisms, international cooperation and institutional oversight.
5 Concluding Remarks
The landscape of migration control is evolving rapidly, marked by progressively
more intricate strategies of externalisation, including any measures to prevent
migrants from entering the territories of destination countries, such as deals or part-
nerships, pushback and pullback practices, or the offshoring of asylum procedures
with the transfer of responsibility for international protection to other countries.
While the phenomenon of the externalisation of migration and border controls
is anything but new, its ramifications through the increasingly diversified practices,
as recalled in the taxonomy developed by this article, exacerbate the tension with
the protection of migrants’ fundamental rights. Through externalisation measures,
States have attempted to evade responsibility for their conduct towards migrants by
prioritising security objectives that are difficult to link with human rights obliga-
tions.93 Despite international adjudicators contributing to expanding the scope of
such obligations, various challenges, as will be illustrated in this Special Issue, con-
tinue to inflict a serious breach on international law accountability frameworks, urg-
ing a paradigm shift in the global governance of migration.
The articles discussed in this Special Issue therefore serve as a litmus test for
the future research on international accountability: without the ambition to exhaust
the possible avenues to expand the chances of holding externalisation practices to
account, they offer a well-timed, necessary and meaningful reflection on the norma-
tive understanding of how human rights obligations should guide, correct or sanc-
tion controversial practices.
Acknowledgements The author would like to express his gratitude to the Focus Area on Migration and
Societal Change at Utrecht University for its generous contribution to the organisation of the international
workshop which was held on 26 May 2023. The author is also grateful to Professor Cedric Ryngaert
for his comments on the earlier draft of this article and his contribution and support to the international
workshop.
Open Access This article is licensed under a Creative Commons Attribution 4.0 International License,
which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long
92 Art. 340(2) Consolidated version of the Treaty on the Functioning of the European Union (TFEU)
[2012] OJ C 326/47–390. On the topic see more broadly Fink (2018).
93 More broadly see Leonard and Kaunert (2012).
Externalisation ofMigration Controls: ATaxonomy ofPractices…
123
as you give appropriate credit to the original author(s) and the source, provide a link to the Creative
Commons licence, and indicate if changes were made. The images or other third party material in this
article are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line
to the material. If material is not included in the article’s Creative Commons licence and your intended
use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permis-
sion directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/
licenses/by/4.0/.
References
Aviat M (2024) Externalising refoulement through new technologies: the case of Frontex’s specific
situational pictures under the lens of EU non-contractual liability. Neth Int Law Rev. https:// doi.
org/ 10. 1007/ s40802- 024- 00255-7 (in this special issue))
Baumgärtel M (2019) Demanding rights: Europe’s supranational courts and the dilemma of migrant
vulnerability. Cambridge University Press, Cambridge
Blay S, Burn J, Keyzer P (2007) Interception and offshore processing of asylum seekers: the interna-
tional law dimensions. UTS Law Rev 9:7–25
Boochani B (2018) No friend but the mountains: writing from Manus prison (translated from Farsi by
O. Tofighian). Picador Australia, Sydney
Breed D (2016) Abuses at Europe’s borders. Forced Migr Rev Issue 51:21–23
Bytyci F (2024) Albanian parliament ratifies migration centres deal with Italy. Reuters, 22 February
2024. https:// www. reute rs. com/ world/ europe/ alban ian- parli ament- ratifi es- migra tion- deal- with-
italy- 2024- 02- 22/. Accessed 7 Mar 2024
Cantor D etal (2022) Externalisation, access to territorial asylum, and international law. Int J Refugee
Law 34:120–156
Carrera S, Santos Vara J, Strik T (eds) (2019) Constitutionalising the external dimensions of EU
migration policies in times of crisis. Legality, rule of law and fundamental rights reconsidered.
Edward Elgar, Cheltenham
Celoria E, De Leo A (2024) Il Protocollo Italia-Albania e il Diritto dell’Unione europea: una relazione
complicata. Diritto Immigrazione e Cittadinanza 2024(1):1–26
Chetail V (2019) International migration law. Oxford University Press, Oxford
Chetail V, Bauloz C (eds) (2014) Research handbook on international law and migration. Edward
Elgar, Cheltenham
Costello C (2015) The human rights of migrants and refugees in European law. Oxford University
Press, Oxford
Czaika M, De Haas H, Villares-Varela M (2018) The global evolution of travel visa regimes. Popul
Dev Rev 44:589–622
De Schutter O etal (2012) Commentary to the Maastricht Principles on Extraterritorial Obligations of
States in the area of Economic, Social and Cultural Rights. Hum Rights Q 34:1084–1169
Dembour M-B (2015) When humans become migrants: study of the European Court of Human Rights
with an Inter-American counterpoint. Oxford University Press, Oxford
Dembour M-B, Kelly T (eds) (2012) Are human rights for migrants? Critical reflections on the status
of irregular migrants in Europe and the United States. Routledge, London
Den Heijer M, Lawson R (2012) Extraterritorial human rights and the concept of ‘jurisdiction.’ In:
Langford M etal (eds) Global justice, state duties: the extraterritorial scope of economic, social,
and cultural rights in international law. Cambridge University Press, Cambridge, pp 153–191
Dimitrova S (2023) Rethinking ‘jurisdiction’ in international human rights law in rescue operations at
sea in the light of AS and Others v Italy and AS and Others v Malta: a new right to be rescued at
sea? Isr Law Rev 56:120–139
Feller E (1989) Carrier sanctions and international law. Int J Refugee Law 1:48–66
Fink M (2018) Frontex and human rights: responsibility in ‘multi-actor situations’ under the ECHR
and EU public liability law. Oxford University Press, Oxford
FitzGerald DS (2019) Refuge beyond reach. How rich democracies repel asylum seekers. Oxford Uni-
versity Press, Oxford
S.F.Nicolosi
123
FitzGerald DS (2020) Remote control of migration: theorising territoriality, shared coercion, and
deterrence. J Ethn Migr Stud 46:4–22
Freier LF, Karageorgiou E, Ogg K (2021) Challenging the legality of externalisation in Oceania,
Europe and South America: an impossible task? Forced Migr Rev 68:23–26
Gammeltoft-Hansen T (2013) Access to asylum: international refugee law and the globalisation of
migration control. Cambridge University Press, Cambridge
Gammeltoft-Hansen T (2022) Extraterritorial human rights obligations in regard to refugees and
migrants. In: Gibney etal (eds) The Routledge handbook on extraterritorial human rights obliga-
tions. Routledge, London, pp. 153–168
Gammeltoft-Hansen T, Hathaway J (2015) Non-refoulement in a world of cooperative deterrence.
Columbia J Transnatl Law 53:235–284
Gammeltoft-Hansen T, Tan NF (2021) Extraterritorial migration control and deterrence. In: Costello C,
Foster M, McAdam J (eds) The Oxford handbook of international refugee Law. Oxford University
Press, Oxford, p 502
Gibney M (2022) The historical development of extraterritorial obligations. In: Gibney M etal (eds) The
Routledge handbook on extraterritorial human rights obligations. Routledge, London, pp 13–24
Gil-Bazo MT (2014) The safe third country concept in international agreements on refugee protection:
assessing state practice. Neth Q Hum Rights 33:42–77
Giuffrè M (2022) On ‘safety’ and EU externalization of borders: questioning the role of Tunisia as a ‘safe
country of origin’ and a ‘safe third country.’ Eur J Migr Law 24:570–599
Grewcock M (2014) Australian border policing: regional ‘solutions’ and neocolonialism. Race & Class
55:71–78
Guilfoyle D (2017) Jurisdiction at sea: migrant interdiction and the transnational security state. In: Gam-
meltoft-Hansen T, Vedsted-Hansen J (eds) Human rights and the dark side of globalisation: transna-
tional law enforcement and migration control. Routledge, London, pp 114–137
Guthmann A (2018) The ‘voluntary’ departure and Israel’s plan for deportation to third countries. The
Hotline for Refugees and Migrants, June 2018. https:// hotli ne. org. il/ en/ refug ees- and- asylum- seeke
rs- en/ volun tary- depar ture/. Accessed 6 Mar 2024
Hathaway JC (2021) The rights of refugees under international law. Cambridge University Press,
Cambridge
Human Rights Watch (2015) Southeast Asia: end Rohingya boat pushbacks. 14 May 2015. https:// www.
hrw. org/ news/ 2015/ 05/ 14/ south east- asia- end- rohin gya- boat- pushb acks. Accessed 7 Mar 2024
IOM (2019) Glossary on migration. International Organization for Migration, Geneva
Karakaş I, Bakırcı H (2018) Extraterritorial application of the European Convention on Human Rights
evolution of the Court’s jurisprudence on the notions of extraterritorial jurisdiction and state respon-
sibility. In: Van Aaken A, Motoc I (eds) The European Convention on Human Rights and general
international law. Oxford University Press, Oxford, pp 112–134
Kassoti E, Carrozzini A (2022) One instrument in search of an author: revisiting the authorship and legal
nature of the EU-Turkey statement. In: Kassoti E, Idriz N (eds) The informalisation of the EU’s
external action in the field of migration and asylum. T.M.C.Asser Press, The Hague, pp 237–258
Leonard S, Kaunert C (eds) (2012) Refugees, security and the European Union. Routledge, London
Liguori A (2019) Migration law and the externalization of border controls European state responsibility.
Routledge, London
McDonnell E (2024) Challenging externalisation through the lens of the human right to leave. Neth Int
Law Rev. https:// doi. org/ 10. 1007/ s40802- 024- 00252-w (in this special issue)
Milanović M (2013) Extraterritorial application of human rights treaties: law, principles, and policy.
Oxford University Press, Oxford
Moreno-Lax V (2015) The legality of the ‘safe third country’ notion contested: insights from the law of
treaties. In: Goodwin-Gill GS, Weckel P (eds) Migration & refugee protection in the 21st century:
legal aspects. Martinus Nijhoff, Leiden, pp 665–721
Moreno-Lax V (2017a) Accessing asylum in Europe extraterritorial border controls and refugee rights
under EU law. Oxford University Press, Oxford
Moreno-Lax V (2017b) The interdiction of asylum seekers at sea: law and (mal)practice in Europe and
Australia. Kaldor Centre for International Refugee Law Policy Brief No 4. https:// www. kaldo rcent
re. unsw. edu. au/ publi cation/ policy- brief-4- inter dicti on- asylum- seeke rs- sea- law- and- malpr actice-
europe- and- austr alia. Accessed 20 Mar 2024
Moreno-Lax V (2020) The architecture of functional jurisdiction: unpacking contactless control—on
public powers, S.S. and Others v. Italy, and the ‘operational model’. Ger Law J 21:385–416
Externalisation ofMigration Controls: ATaxonomy ofPractices…
123
Moreno-Lax V (2024) Meta-borders and the rule of law: from externalisation to ‘responsibilisation’ in
systems of contactless control. Neth Int Law Rev. https:// doi. org/ 10. 1007/ s40802- 024- 00257-5 (in
this special issue)
Moreno-Lax V, Lemberg-Pedersen M (2019) Border-induced displacement: the ethical and legal implica-
tions of distance-creation through externalization. Quest Int Law 56:5–33
Müller A (2022) Justifying extraterritorial human rights obligations. An ethical perspective. In: Gibney
M etal (eds) The Routledge handbook on extraterritorial human rights obligations. Routledge, Lon-
don, pp 53–64
Negishi Y (2024) Constructive refoulement as disguised voluntary return: internalised externalisation of
migrants. Neth Int Law Rev. https:// doi. org/ 10. 1007/ s40802- 024- 00256-6 (in this special issue)
Nicolosi SF (2013) Externalisation du droit d’asile et devoir de non-refoulement dans la pratique conven-
tionelle euro-méditerranéenne. Mediterr J Hum Rights 16:259–315
O’Sullivan M (2017) Interdiction and screening of asylum seekers at sea: implications for asylum justice.
In: O’Sullivan M, Stevens D (eds) States, the law and access to refugee protection: fortresses and
fairness. Hart Publishing, Oxford, pp 93–112
Palombo D (2023) Extraterritorial, universal, or transnational human rights law? Isr Law Rev 56:92–119
Piccoli L (2023) Offshoring asylum the Italian way. No model for others to follow. Verfassungsblog – On
Matters Constitutional, 14 November 2023. https:// verfa ssung sblog. de/ offsh oring- asylum- the- itali
an- way/. Accessed 7 Mar 2024
Pijnenburg A (2018) From Italian pushbacks to Libyan pullbacks: is Hirsi 2.0 in the making in Stras-
bourg? Eur J Migr Law 20:396–426
Pijnenburg A (2024) Externalisation of migration control: impunity or accountability for human rights
violations? Neth Int Law Rev. https:// doi. org/ 10. 1007/ s40802- 024- 00250-y (in this special issue)
Raimondo G (2024) The European integrated border management. Frontex, human rights, and interna-
tional responsibility. Hart Publishing, Oxford
Ralph DE (1993) Haitian interdiction on the high seas: the continuing saga of the rights of aliens outside
United States territory. Md J Int Law Trade 17:227–252
Robinson E (2023) The UK-Rwanda asylum plan and the ECHR: transfers to unconnected states and
assurances against indirect refoulement. Eur Hum Rights Law Rev 3:271–277
Rothwell D (2002) The law of the sea and the MV Tampa incident: reconciling maritime principles with
coastal state sovereignty. Public Law Rev 13:118–127
Ryan B, Mitsilegas V (eds) (2010) Extraterritorial immigration control: legal challenges. Martinus
Nijhoff, Leiden
Ryngaert C (2015) Jurisdiction in international law, 2nd edn. Oxford University Press, Oxford
Scipioni M (2018) De novo bodies and EU integration: what is the story behind EU agencies’ expansion?
J Common Mark Stud 56:768–784
Shany Y (2020) The extraterritorial application of international human rights law. Collected Courses of
The Hague Academy of International Law 409:9–152
Stock I, Üstübici A, Schultz SU (2019) Externalization at work: responses to migration policies from the
Global South. Comp Migr Stud 7:48
Strik T, Robbesom R (2024) Compliance or complicity? An analysis of the EU-Tunisia deal in the con-
text of the externalisation of migration control. Neth Int Law Rev. https:// doi. org/ 10. 1007/ s40802-
024- 00251-x (in this special issue)
Tammone F (2024) Challenging externalization by means of Article 4 ECHR: towards new avenues of
litigation for victims of human trafficking? Neth Int Law Rev. https:// doi. org/ 10. 1007/ s40802- 024-
00254-8 (in this special issue)
Tan NF (2021) Conceptualising externalisation: still fit for purpose? Forced Migr Rev 68:8–9
Tennis KH (2021) Offshoring the border: the 1981 United States-Haiti Agreement and the origins of
extraterritorial maritime interdiction. J Refugee Stud 34:173–203
UK Home Secretary (2024) Letter to the Chair of the International Agreements Committee. 11 January
2024. https:// commi ttees. parli ament. uk/ publi catio ns/ 42871/ docum ents/ 213213/ defau lt. Accessed 7
Mar 2024
UNHCR (2000) Interception of asylum-seekers and refugees: the international framework and recom-
mendations for a comprehensive approach. EC/50/SC/CRP.17, 9 June 2000. https:// www. refwo rld.
org/ docid/ 49997 afa1a. html. Accessed 7 Mar 2004
UNHCR (2007) Advisory Opinion on the extraterritorial application of non-refoulement obligations
under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. 26 January
2007. http:// www. unhcr. org/ refwo rld/ docid/ 45f17 a1a4. html. Accessed 7 Mar 2024
S.F.Nicolosi
123
UNHCR (2021) Note on the ‘externalization’ of international protection. 28 May 2021. https:// www.
refwo rld. org/ pdfid/ 60b11 5604. pdf. Accessed 7 Mar 2024
UNHCR (2024) Analysis of the legality and appropriateness of the transfer of asylum-seekers under the
UK-Rwanda arrangement: an update. 15 January 2024. https:// www. unhcr. org/ uk/ what- we- do/ uk-
asylum- policy- and- illeg al- migra tion- act/ uk- rwanda- asylum- partn ership. Accessed 7 Mar 2024
Vinocur N (2024) EU leaders ink €7.4B economic aid, migration deal with Egypt. Politico, 17 March
2024. https:// www. polit ico. eu/ artic le/ eu- leade rs- egypt- e7- 4b- econo mic- aid- migra tion- deal- italy-
greece- belgi um- austr ia- cyprus/. Accessed 20 Mar 2024
Wilde R (2015) Legal ‘black hole’? Extraterritorial state action and international treaty law on civil and
political rights. Mich J Int Law 26:739–806
Xanthopoulou E (2024) Mapping EU externalisation devices through a critical eye. Eur J Migr Law
26:108–135
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