Offshore Law. The tension between the universality of human rights and the practice of States in the management of migration flows

Some months ago, on the 9th of August 2016, The Guardian published an article titled “A short history of Nauru, Australia’s dumping ground for refugees”. That piece opens the “Pandora’s box” of the treatment of refugees wishing to enter Australia, sheading lights on the harsh life’s conditions they suffer. Unfortunately, this case is not isolated; indeed, it represents a widespread practice. States are more and more incline to manage migration flows outside their territories creating hotspots where asylum seekers are processed or concluding agreements to stop the fluxes of migrants in States of transit or, directly, in their States of origin. Such a practice is evidence of a shift towards an extraterritorial enforcement of law. It appears clearly that the externalisation of the management of migration flows undermines the protection of the rights of asylum seekers on several grounds. In fact, as anticipated above, the life’s conditions in the hotspots are tantamount to inhumane treatments that are prohibited by international law. At the same time, the practice consisting in blocking migration fluxes in foreign States might constitutes – among the others – a violation of the principle of non-refoulement. At first glance, this might be surprising as the above-mentioned rights belong to a category of rights considered to be of a customary nature, therefore binding on all States of the international community. This could be even more surprising if compared to the jurisprudence of the European Court of Human Rights (ECHR) which is evolving toward a generous approach to the extraterritorial application of the European Convention of Human Rights (ECHR or the convention). An approach that is likely to influence the interpretation of other human rights treaties which application is not geographically limited. The paper argues that there is a growing tension between the reach of human rights law – that aspires to universality – and the conduct of States, which is based on legal decisions that openly violate human rights law. After having presented the practice of States and the limits posed by human rights law, the conclusive argument of the paper is that more attention should be paid to the enforcement of human rights law than to expanding its reach.