Guest post by Dr Aphrodite Papachristodoulou, Lecturer in International Human Rights Law, Unicaf University. Aphrodite’s research interests cover irregular migration by sea, human rights, international law of the sea, legal theory and AI technologies.

Vasileia M. Anaxagorou

Courtesy of the artist Vasileia M. Anaxagorou, “Your sea smells like human bodies” (2018) 150x150cm oil on canvas

Today, seemingly more than ever, migrants and refugees try to reach European shores by resorting to the only apparent (non-legal) avenue: irregular, lengthy, and perilous sea crossings in barely functional boats. Approximately 2,720 migrants lost their lives by drowning en route to Europe in 2021, a number that makes up the majority of fatalities recorded worldwide. At the same time, technologies of control in border governance have been used by the EU and its Member States to create a militarised border, making the right to seek asylum elusive. However, this underlying notion of treating migrants as others evokes a segregated approach towards foreigners, non-nationals or non-citizens and has resulted in the proliferation of exclusionary bordering practices applied from the moment an individual attempts to leave home country. This manifests how the EU constructed itself through ‘the production of spacings that set Europe off against its exterior “others”’. Without a doubt, the dominant representation of migration (and people on the move) as problematic to a host community fuels destructive attitudes and allows for stricter securitisation measures to address this supposed threat.

Yet, one should not forget that Mediterranean migratory movements are a fundamental component of the history and identity of Europe. Still, Europe seeks to distance itself from its southern and eastern Mediterranean neighbours by treating the sea as a border to halt migration flows at all costs. By definition, migration is a source of human mobility or ‘circulation’, as Michel Foucault suggests, which has become a principal target for political intervention. In this context, artificial intelligence (AI) technologies are ever more present in the European Union’s (EU) maritime border regime. For instance, while various surveillance systems (e.g. drones) are being portrayed as the best solution to detect distress situations thereby enhancing the effectiveness of search and rescue, these are nonetheless being used to prevent migrants from reaching European soil. Arguably then, technologies facilitate political imperatives which carry foreseeable risks for the human rights of migrants who are stopped from accessing protection. Hence, what is particularly problematic is that there is limited accountability for egregious and systematic human rights violations on the high seas, as attention is deflected to the securitisation of borders.

The European Commission has been building ‘smart borders’ in order to tackle ‘illegal’ migration since 2013. In this vein, the EU has established inter alia the ‘European Border Surveillance System’ (EUROSUR), a scheme that is operated by Frontex and which uses big data technologies (including satellite imagery and ship recording services) ‘to predict, control and monitor traffic across European Union borders’ and ultimately to block migrants’ passage. Such deliberations prompt us to think of the Foucaultian ‘programme’, which represents a blueprint for the management of the border and has a specific importance in the context of exclusion (see here). Respectively, the strategies employed by the programme for achieving specific goals might not be coherent with ethical principles such as fairness and transparency. As Jeremy Packer has argued, what is worrisome about the interplay of surveillance and mobility is that ‘identities become risk assessment algorithms of mobilities. It is not who is a threat, but what vehicular movement can be used to predict a threat’. Such assertions lead to the view that sea crossings can be put under complete surveillance and remote control by States. The Nivin incident in 2018 provides one such example. In casu, a Spanish surveillance aircraft (part of the then EU’s anti-smuggling mission EUNAVFOR MED – Sophia Operation) spotted a migrant’s boat and passed this information to the Italian and Libyan Coast Guards who then instructed a Panama-flagged merchant vessel that was nearby, the Nivin, to take all rescuees back to Libya, in violation of their rights (see here).

In the terrain of international human rights, States have assumed positive obligations to prevent human rights violations and to protect the rights of those under their jurisdiction. It is in this context that technologies of control challenge the way we think about the concept of State jurisdiction and borders begin to lose their normative significance in delineating State responsibilities. Consequently, jurisdiction is no longer understood in its traditional, territorial sense. This is so as technological developments can operate in time and space in new and unprecedented ways, constantly challenging existing conceptions of how States can acquire jurisdiction beyond their territory.  Simplified, an individual needs to fall under the jurisdiction of a State for human rights obligations to arise in the first place. Arguably then, technology provides States with the capacity to control how a situation will unfold, by exerting contactless control over individuals who attempt to make a sea crossing, thus activating the jurisdictional nexus. One can legitimately argue that power or effective control is capable of being exercised from ‘long-distance’ vis-á-vis remotely (see also work by Seline Trevisanut). As argued by Yuval Shany, the key aspect of jurisdiction is not about the actual act or omission, but ‘about states having the potential (or functional capacity) to comply with or violate IHRL [international human rights law] obligations’.

In concluding, there are myriad ways a State can exercise remote effective control towards people in distress at sea, including policy and operational arrangements, as well as detrimental rescue instructions that hinder human rights protection at sea (see S.S. and others v Italy (ECtHR, pending) and A.S. and others v Italy (CCPR)). Nonetheless, technology should not be used as a key to side-line ethical and humanitarian imperatives when dealing with the complex nature of migration. Neither should migration movements be seen as a threat amenable to a technological solution . The law needs to become responsive to such contemporary manifestations of State power, as technology is increasingly providing the means which make it possible to remotely control how a situation will unfold at the expense of migrants’ human rights – and lives – constituting the dispositif of the ban-opticon.

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How to cite this blog post (Harvard style) 

Papachristodoulou, A. (2022) The Ban-Opticon of Migration: Technologies at Maritime Borders and Extraterritorial Jurisdiction. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2022/05/ban-opticon [date]