When stopping the smuggler means repelling the refugee: international human rights law and the European Union's operation to combat smuggling in Libya's territorial sea.

Over the past three years, the number of human tragedies on the Mediterranean Sea has reached an unprecedented level. (1) The now-iconic image of a German rescue worker cradling a drowned migrant baby in his arms in the sea between Libya and Italy remains a disturbing reminder of the over 5,000 migrants and refugees who died attempting to cross the Mediterranean in 2016 alone. (2) Of the European Union's (EU) responses to this humanitarian crisis, perhaps the most controversial has been Operation Sophia: a naval mission to combat human smugglers and traffickers operating in the Mediterranean, in particular off the coast of Libya. (3) As part of Operation Sophia, the EU is now supporting and training the Libyan Navy and Coastguard to combat smuggling and stop migrant departures within Libya's territorial sea--waters within twelve nautical miles of Libya's nautical baseline. The EU simultaneously continues to seek permission for European Union Naval Force Mediterranean (EUNAVFOR MED) vessels and personnel themselves to enter Libya's territorial sea to seize and dispose of smuggling vessels. (These two components will hereinafter together be referred to as the Operation Sophia "territorial sea component.")

The EU's goal of decreasing the number of migrants(4) who reach the Mediterranean high seas is understandable, but the territorial sea component presents serious human rights concerns. Instead of traversing the high seas to possibly reach Europe and asylum, migrants will be turned back by the Libyan Coastguard--trained and supported by EUNAVFOR MED--to a country where they likely face prolonged detention, brutality, and persecution. There is also the possibility that migrants and refugees will be caught in the crossfire between the human smugglers and the Libyan Coastguard in collaboration with EUNAVFOR MED. This Comment considers whether the EU's activities in the territorial sea of Libya will occur within the framework of international human rights law, or whether there are gaps in protection for migrants impacted by the Operation.

While the EU heralds the Operation Sophia territorial sea component as a humanitarian endeavor, this Comment urges caution. This Comment argues that the design of the territorial sea component exploits gaps in the human rights accountability framework while contributing to a concerning norm of militarized extraterritorial border control. The Comment specifically demonstrates how in collaborating with the Libyan Coastguard, European states operate in a legal grey area where the jurisdiction of the European Court of Human Rights (ECtHR) may not extend, and thus the application of human rights law is uncertain. Through this analysis, the Comment reveals how Operation Sophia instantiates a policy of non-entree. Non-entree is a notion in human rights scholarship describing responses to migration that allow states to purport to be consistent with human rights law--but only by preventing situations in which the state's human rights obligations might formally apply. (3)

The Comment proceeds in four Parts. Part I introduces Operation Sophia and the human rights issues implicated by the territorial sea component. Part II discusses the difficulty in establishing human rights jurisdiction under European human rights law for the Operation Sophia territorial seas component. It identifies the existence of a human rights protection gap through analysis of the effective control standard in maritime operations, ECtHR jurisprudence on extraterritorial military engagements and territorial control, and the ECtHR's treatment of derived responsibility and joint conduct. Part III then contends that the territorial sea component makes significant and concerning contributions to an emerging norm of militarized, cooperation-based border control. Part IV proposes legal and policy prescriptions.

1. OPERATION SOPHIA AND HUMAN RIGHTS ON THE MEDITERRANEAN SEA

   In recent years, observers and scholars have rightly called attention to European states' heightened implementation of border security protocols and restrictions on asylum access in response to the global migration crisis. The term "Fortress Europe" is now commonplace. (6) Over the past twenty years, European states have developed this practice by striking deals with African nations to support maritime interdictions in their territorial seas. (7) As a military operation designed to limit the number of migrants in reach of Europe's borders, Operation Sophia expressly follows in this trend. This Part provides background information on Operation Sophia (Section A) and highlights the human rights concerns at stake in the territorial sea component (Section B).

   1. The Territorial Sea Component in Context

      The territorial sea component is the most recent stage of Operation Sophia, which was initiated in the summer of 2015 and constitutes one of the three EU Operations currently ongoing in the Mediterranean. (8) Operation Sophia's central objective is "the disruption of the business model" of smugglers and human traffickers, (9) and to "prevent the further loss of life at sea." (10)

      Phase 1 of Operation Sophia, completed in 2015, involved surveillance of migration routes and smuggling activities to gain a comprehensive picture of the smuggling business. (11) Phase 2A is currently underway and involves seizing and diverting vessels suspected of smuggling on the high seas. (12) On the high seas, EUNAVFOR MED is authorized to use force both in its engagements with suspected smugglers and in order to "dispose" of (i.e., destroy) vessels identified as in use, or likely to be in use, for smuggling. (13) The United Nations Security Council (UNSC) authorized Phase 2A in October 2015 in Resolution 2240, under Chapter VII of the U.N. Charter, and has since extended authorization until October 2017. (14) Resolution 2240 is the first UNSC authorization of high seas interceptions and inspections for the purpose of fighting human smuggling. (15) The Resolution "urges" states to comply with international human rights obligations, although commentators have emphasized that the text does not provide for substantive mechanisms to achieve this end. (16)

      Phase 2B of Operation Sophia will allow EUNAVFOR MED to enter Libya's territorial sea to board, seize, divert, and potentially destroy vessels suspected of smuggling in that maritime zone. "Phase 2B" will only begin with a UNSC Resolution and official invitation by the Libyan Government. (17) While at the time of writing, these steps have not yet occurred, EUNAVFOR MED aims to proceed to this stage. (18) As the EU awaits Libya's invitation, the EU has effectively extended Operation Sophia into Libya's territorial sea through a program of training and funding the Libyan Coastguard beginning in the summer of 2016. On June 20, 2016, the European Council expanded the Operation's mandate to include capacity-building and training of the Libyan Coastguard and Navy, as well as information sharing with them. (19)

      By training the Libyan Coastguard, EUNAVFOR MED aims to enhance the Libyan Coastguard's own ability to disrupt smuggling in the Libyan territorial sea and enhance their search-and-rescue capacity. (20) While European states have previously funded African states to support maritime interdictions, (21) the most recent effective agreement with Libya occurred before the Libyan government disintegrated in 2011. (22) At present, the Libyan government lacks control of its coastline, and the Libyan Coastguard itself is disorganized, poorly resourced, and retains a poor human rights record. (23) EUNAVFOR MED's training of the Libyan Navy and Coastguard officially commenced in late October 2016 and occurs on EUNAVFOR MED vessels on the high seas. (24) The Libyans are trained on methods to tackle smuggling and reduce migration, as well as on international law and search and rescue. (25) In January 2017, European states decided to begin funding the Libyan Government to engage in antismuggling operations. (26)

      The current training and funding program may signal a transition to Phase 2B (referring specifically to the deployment of EUNAVFOR MED officers and vessels themselves into Libya's territorial sea), which is also expected to involve close collaboration with the Libyans. (2) Should Phase 2B proceed, current discourse and past practice suggest that EUNAVFOR MED and the Libyan Coastguard may engage in operational coordination, including activities such as joint patrols and deployment of Libyan officers on European vessels (or vice versa) to assist and direct seizures, interdictions, and possible disposals. (28)

      In addition to Operation Sophia, the EU continues to patrol the Central Mediterranean through border surveillance operations coordinated by the EU border agency, Frontex. (29) The current Frontex operation in the Central Mediterranean is Operation Triton, which was launched in 2014 to replace the more effective Italian-led search-and-rescue operation, Operation Mare Nostrum. (30) Triton retains a search-and-rescue component, although unlike Operation Mare Nostrum, its primary focus is border management. (31)

   2. Human Rights at Stake

      The Operation Sophia territorial sea component risks violating fundamental international human rights protected by various international conventions. (32) These include, in particular, the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), and the 1951 Refugee Convention. (33) The states of the European Union are parties to all of these instruments and thus bound under international law by the obligations provided therein. (34)

      The Operation Sophia territorial sea component is at odds with the principle of nonrefoulement, which holds that an individual may not be returned to a place where he or she faces risk of persecution. (35) The nonrefoulement principle is affirmed most clearly in Article 33 of the Refugee Convention and is also...