The Externalization of Border Controls and the Responsibility of Outsourcing States under the European Convention on Human Rights

Over the past few decades, both the European Union and its Member States have been implementing different strategies of externalizing border controls with the declared intent of saving human lives and countering smuggling, but with the actual end-result of shifting borders, circumventing international obligations and ultimately preventing access to Europe. The author analyzes whether Member States can succeed in shifting their responsibility onto third States in cases of human rights violations by focusing on the Italy-Libya Memorandum of Understanding of February 2017. She also examines whether claims could be brought against Italy (and against outsourcing States in general) before the ECtHR. Applying the doctrine of positive obligations, as developed in the case-law of the European Court of Human Rights, could prove a particularly useful tool in addressing the responsibility of European States under the ECHR within an externalized context, because it may make it easier to meet the jurisdictional requirement and ultimately hold outsourcing States accountable.