Border Walls, Pushbacks, and the Prohibition of Collective Expulsions: The Case of N.D. and N.T. v. Spain

Abstract

This essay explores the impact of N.D. and N.T. v. Spain on the ECHR system. The case deals with the immediate return of aliens at Melilla’s border fence. Based on conceptual analysis, the author submits to critical scrutiny the arguments developed by the ECtHR. The Court’s reasoning is framed within the riveting interdisciplinary debate on external border control. The Grand Chamber’s final decision reduces the scope of the protection offered by Article 4 Protocol 4, for it introduces a highly indeterminate exception to the prohibition of summary returns at the border. The author suggests that this solution might favor non-entrée strategies and promote the current trend of externalizing the asylum procedures. Introducing broad exceptions to the prohibition of collective expulsion, especially if coupled with strong presumptions in favor of States, increases the effectiveness of border walls qua accountability waivers.

Push and back: The ripple effect of EU border externalisation from Croatia to Iran

“…The practices of pushbacks correlate directly with migration externalisation. As Cortinovis (2021), Koros (2021), and Sardo (2021) suggest, pushbacks are directly linked to the policy and legal framework that has been shaped by EU-non-EU collaboration on migrant controls. These include the EU-driven “closure” of the “Balkan Route”, as well as the 2016 EU-Turkey Agreement (Aulsebrook et al, 2021).…”

“…Although the EU is not always directly involved in actions along external borders, it orchestrates border controls there via ‘assistance’, ‘endorsement’, ‘convening’ and ‘coordination’ that allow European policy makers to govern external borders indirectly (Muller & Slominski, 2021, p 803). This governance results in severe human rights violations (Cortinovis, 2021; Sardo, 2021; Stanford and Borelli, 2014). The EU, however, evades responsibility as externalisation also offshores the blame for human rights violations to third states (Lemberg-Pedersen, 2019).…”