In an unprecedented manner, the past decades have seen a rise in the construction of border walls and fences all around the globe. Moreover, recent events such as the “refugee crisis” in 2015, the Covid-19 pandemic and the closure of the Greek border in March 2020 have raised the question as to whether international law adequately safeguards the substantive rights of refugees and migrants or overly broad defers to the discretion of states.
The dissertation analyses the extent to which procedural guarantees and obligations in international law, especially in the area of international human rights and refugee law, shape and influence the design and operation of states’ border policies. This takes place in light of the practice of states to fortify and close their physical borders, but also to detach border control functions from their territory entirely by cooperating with countries of origin and transit to externalise border controls and ultimately prevent migrants from leaving the country.
To that end, the study will first identify the content and limits of such obligations. It will focus on non-refoulement obligations and the prohibition of collective expulsion which may require certain minimum procedural guarantees for refugees and migrants and ultimately envisage a certain institutional design of borders with sufficient administrative capacities and effective means to enter the territory. These obligations will then be assessed against current policies to internalise (e.g. by means of excision of territory) and externalise border controls. Here, the analysis will focus both on the territorial scope of those obligations and on the law of states responsibility. It raises the question as to whether the rules on complicity entail certain due diligence obligations that require efficient procedural safeguards to be met when cooperating with third states in the area of migration to mitigate their detrimental effects on international human and refugee rights.