Protecting the EU external borders and the prohibition of refoulement

This article investigates the relation between externalisation of border control to regulate or stop migration and the prohibition of refoulement. It aims to elucidate under what circumstances remote measures of border control trigger the obligations of states to protect persons from refoulement. The article focuses on the key concept of jurisdiction. Based on a rigorous study of literature and case law, de jure and de facto control as well as the exercise of public powers are identified as triggers of jurisdiction. Additionally, art 16 on aiding and assisting of the Articles on the Responsibility of States for Internationally Wrongful Acts (‘ARSIWA’) is discussed in relation to refoulement. Finally, in order to clarify state responsibility for refoulement the EU–Turkey Statement is assessed as a paradigmatic example of outsourcing border control.