Das Recht auf Ausreise zur See Rechtliche Grenzen der europäischen Migrationskontrolle durch Drittstaaten

Over the past decade, the EU and its Member States have increasingly involved third countries in border control measures intended to prevent »illegal immigrants« from reaching Europe by land or sea. Cooperation agreements with third countries comprise joint coastal patrols, shiprider agreements, the deployment of liaison officers, border control capacity-building measures, as well as sharing intelligence, especially within the border surveillance framework of EUROSUR. There is evidence that North and West African coastal States seem to be increasingly preventing departures by boat as part of such cooperation agreements with EU Member States. The European Court of Human Rights has made clear that »push-backs« of migrants to the State of departure are incompatible with non-refoulement, irrespective of whether they would have entered the EU illegally. The legal limits of departure prevention or »pullbacks« of migrant boats by third countries are much less clear. As those seeking to reach Europe by boat illegally are often refugees or entitled to subsidiary protection, such measures raises questions on access to protection and procedure, secured by non-refoulement and the right to seek asylum—and by the right to leave any country including one's own, a human right which was already included in the 1948 Universal Declaration of Human Rights. This paper examines, firstly, whether departure prevention and pull-backs by third countries are compatible with the right to leave and permissible under the law of the sea. Secondly, it explores the responsibility of the EU and its Member States for possible violations of international law by third countries preventing departures at their behest or with their support.