The rise of consensual containment: from contactless control to contactless responsibility for migratory flows

Abstract

This chapter centres on the rise and reinforcement of the 'containment paradigm' of refugee flows in developed countries, particularly in Europe. It traces the emergence of new forms of trans-national cooperation with neighbouring States, especially Libya and Turkey, for the 'management' (if not deterrence) of unwanted fluxes of forced migrants (typically impeding access to asylum), taking the form of training, financing, and other capacity-building activities. The key argument put forward is that, despite the absence of direct contact with the persons concerned by EU Member States, the ILC Articles on State Responsibility contemplate instances of contribution to wrongful conduct that may nonetheless trigger their international responsibility. The provisions on complicity, direction and control, and independent responsibility are explored in detail, taking account of the specific role that 'knowledge' plays in that regard, following developments in the case law on the ECHR. The ultimate goal is to demonstrate the continued relevance of international protection obligations and the persistence of responsibility in relation to this new generation of 'contactless', yet effective, means of control.