Extraterritorializing Immigration Control via Carrier Sanctions : State Responsibility for Refugee Protection

Already since the 1980’s, in order to combat irregular immigration states have emphasized controlling immigration at source, also with the assistance of private actors. One of the oldest of these extraterritorialization and privatization methods is carrier sanction legislation, which imposes document control activities to transport companies by threatening them with financial penalties. This method is nowadays endorsed in several international conventions. The downside of the extraterritorial border control is its severe implications on refugee protection. Refugees are often unable to obtain the proper travel documents and therefore cannot resort to international protection. However, due to states’ growing control over their borders and on the other hand detrimental effect on refugees, the scope of the human rights and refugee rights obligations has come under debate. This thesis is participating in the discussion by evaluating can the norms of refugee and human rights protection apply extraterritorially, and if yes, can carriers’ border control actions breach these rights or are refugees’ rights already taken into account efficiently. Refugee rights and human rights obligations rise from international and regional conventions, which impose obligations mainly to the sovereign states. Thus, the first issue in establishing responsibility is whether carriers’ conduct could be attributed to the state according to the customary rules of international law codified in Draft Articles on Responsibility of States for Internationally Wrongful Acts. Secondly, the scope of the international obligations must be established. Carrier sanctions have been widely criticized for circumventing the non-refoulement principle recognized in the Refugee Convention and several human rights treaties and also described as the cornerstone of refugee protection. Besides, the carrier sanctions affect the obligation not to penalize refugees for illegal entry recognized in Refugee Convention, right to leave a country and the right to seek asylum. However, whether these obligations apply only on the territory of the state or also in the situations of extraterritorially is not always crystal clear. Even if state´s obligations could apply extraterritorially, states can clearly be responsible only for violations they can impact on. Thus, the third threshold of state´s extraterritorial responsibility is establishing extraterritorial jurisdiction. There is no case law on attribution of carrier’s actions to states and creation of extraterritorial jurisdiction is still an exceptional thing applied inconsistently by different courts. In cases where the attribution is not possible or jurisdictional link is weak, the last chapter of this work discusses if states’ human rights due diligence obligation could still provide a layer of protection and mitigate the negative effects on refugees. Accepting extraterritorial effects on refugee protection would have massive effects on the Western states asylum regimes. It would also create problems targeting responsibility between states and increase the phenomenon of jurisdiction shopping. On the other hand, states’ extraterritorial control might create a human rights vacuum where persons are artificially blocked from protection