Who Guards the Guardians? Human Rights Constraints on EU Extraterritorial Migration and Asylum Policy and Activity

Enquiries into the potential role of the EU as a ‘liberal’ constraint on member states in the field of migration and asylum need to account for the normative character of and constraints on the EU itself.   Such accounts take on a new dimension with the plans for the EU to ratify the European Convention on Human Rights (ECHR).  This new development will potentially have a significant effect in mediating future EU migration and asylum policy and activity, in terms of both its normative aspects, and how it interfaces with such practice and activity at the member state level.  This paper will offer a critical evaluation of this potential mediating effect, through a case study focusing on a particular context: migration and asylum policy and activity with an extraterritorial orientation.  This takes in such matters as the interception, detention, and transfer of migrants extraterritorially and the extraterritorial posting of immigration officials at ports of exit for migrants.  Such activities are highly contested, and involve significant areas of EU-wide action.  So far, the constraints of human rights law can only be brought to bear directly when individual state responsibility is accepted to exist.  When legal responsibility is regarded as residing in the Union as a distinct legal person, no international human rights law constraints are applicable.  This position will change radically when the EU ratifies the ECHR.