This article begins to undertake a human rights analysis of the increasing number of migrants who die annually while trying to cross the borders of Europe in an irregular manner. Over the past 20 years, border policies increasingly focus on (pro-active, extraterritorial, privatized, and securitized) border management instead of on classical (reactive, territorial, and public) border control. On the basis of existing data, it seems plausible to assume that the increasing migrant mortality is an unintended side-effect of this shift from control to management. The article argues that it is possible to collect data, which are more reliable than those presently available, and presents data from a pilot project carried out on Sicily in November 2011. Presuming better data can be collected; two diverging human rights approaches are developed – a conventional approach holding that European states are not accountable under human rights law for these side-effects and a functional approach holding that human rights law does impose obligations on European states in this context. On all four doctrinal issues which are relevant to the problem (jurisdiction, positive obligations, standing, and collective state responsibility), these diverging approaches lead to diverging doctrinal positions. A choice between the two approaches implies not only legal but also moral, ethical, and political choices.
Moving Migrants, States and Rights. Human Rights and Border Deaths, Law and Ethics of Human Rights, 2013 (7-2), p. 213-242