External Migration Control Measures and Ill-Treatment of Migrant Women: On the Responsibility of the EU and the Member States Under the EU-Charter

Abstract: Through the external dimension of the EU migration policy, the EU and its member states have increasingly employed externalization measures as a means of stemming the irregular migration flows that reach the external borders of the Union. The measures are characterized by domestic conduct with extraterritorial effect leading to increased migration control in the third countries targeted by these measures. Inevitably, the increase of migration control in third countries have an impact on the irregular migrants who origin from or transit through these countries, which in some cases may constitute human rights abuses. In light of this, this thesis examines whether positive obligations imposed by the EU-Charter are invokable against the EU or member states when conducting externalization measures which infringes on fundamental rights. The contextual framework for the discussion of this thesis is the impact of externalization measures in third countries on migrating women’s right not to be subjected to ill-treatment. Within this, the thesis explores the possibilities of holding the EU or member states accountable for human rights violations in third countries as a result of migration control. The purpose is specifically to ascertain liability under the EU-Charter by employing a doctrinal legal research method to establish the scope of application of the instrument as well as the material scope of its prohibition on ill-treatment. The thesis starts with providing an overview of the framework governing EU externalization measures and its implementation, along with an examination of the impact migration control has on the right not to be subjected to ill-treatment for migrating women. Having considered this, it finds that the scope of applicability of the EU-Charter is not limited by the extraterritoriality of the measures but may very well cover externalization measures such as the ones observed. However, this depends greatly on who the relevant actor of a measure is, as only EU bodies are bound by the instrument when conducting informal measures. Having found that definitional threshold of Article 4 of the Charter can be satisfied, the thesis examines the positive obligations pertaining to the Article and their potential application to externalization measures. It finds that to establish failure in fulfilling positive obligations, one is required to consider the knowledge about the risk of harm, the proximity of the conduct and the harm and the reasonableness of the measures considering equitable alternatives. Such potential reasonable alternative measures would be of particular interest for future research as the existence of such is a deciding factor in establishing whether externalization measures are in conformity with the provisions of the Charter.