Border Deaths at Sea under the Right to Life in the European Convention on Human Rights

For over two decades persons have died in the Mediterranean and Adriatic Sea in an attempt to reach the EU. The study is based on the hypothesis that these border deaths are a consequence of the immigration policies of the EU and its Member States. The central question of the study thus is whether EU immigration policies violate the right to life under Article 2 ECHR.

First, the study outlines the particular legal regime applicable to the high seas and shows how it widens the possibility for States to design and implement immigration policies with extraterritorial effects. Then, the applicability of the ECHR to border deaths at sea is discussed. The study performs a rigorous analysis of the Court’s case law, which unearths cases that open avenues for arguing that the ECHR is applicable to border deaths on the high seas. The analysis demonstrates that the Convention is applicable to border deaths occurring within the territorial waters of EU Member States. Furthermore, it unveils the Court’s creativity in bridging the gap between the Convention and persons in need of protection. The study then identifies the standards to be met by States under the obligation to prevent the loss of life, to protect the right to life by law and to investigate the loss of life under Article 2 ECHR. A structured case search is performed, which demonstrates that the standards differ according to different groups of victims. In the case of migrants and asylum seekers this means that the standards may be lowered. Yet, immigration policies resulting in the loss of life at sea fall short even against such lowered standards. In many cases, States take insufficient measures to prevent the loss of life at sea. Furthermore, the duty to design and implement the State’s administrative and legislative system so as to contribute to the preservation of life is not met. Finally, EU Member States have death management systems that leave the majority of victims uncounted and unidentified and are thus incompatible with Article 2 ECHR. In many cases therefore, EU immigration policies result in a violation of the right to life under Article 2 ECHR.