The Privatization of Migration Detention: State Responsibility for Offshore Detention Centers

Sammanfattning: In the last three decades, detention centers have become the preferred method to manage the migration flow in multiple states within the European Union (EU). In correlation to the increasing use of detention centers, there has been a shift from states having a type of monopoly on migration management functions, to an increase of states outsourcing their responsibility to private companies. When states outsource their responsibilities to private companies, and more specifically to Private Military and Security Companies (PMSC), they also distance themselves from the conduct and the potential human rights abuses that is taking place in the detention centers. EU and the EU member states are now also considering to implement so-called offshored detention centers which implies that the detention centers are no longer situated within the states territory, and subsequently, further distancing themselves from the detained migrants. By adding another layer of distance between the state and the migrants, it becomes increasingly difficult to hold a state responsible for the conduct in privatized offshored detention centers. The purpose of the present thesis is therefore to determine how a EU member state can be held responsible for the acts and omission perpetrated by PMSC personnel in offshored detention centers, primarily through what is known as the functional jurisdiction approach. This approach has been recently put forward by Violeta Moreno-Lax in the pending case of S.S. v. Italy at the European Court of Human Rights (ECtHR) and it remains to be seen whether the ECtHR will accept this new interpretation of jurisdiction within art. 1 of The European Convention on Human Rights (ECHR). Furthermore, in view of the said purpose the thesis analyses if it is possible to hold a EU member state responsible through the current frameworks of ARSIWA and the ECHR and how the functional approach is interpreted by Moreno-Lax in the pending case of S.S. v. Italy. It is concluded in the thesis that it is a near impossibility to find state responsibility regarding the aforementioned issue through the current frameworks of ARSIWA and ECHR. The latter framework is however pivoting towards a more situational and functional approach when determining extraterritorial jurisdiction. Additionally, it is also concluded that if Moreno-Lax interpretation of functional jurisdiction is accepted by the ECtHR, it could be applicable through analogy to determine state responsibility when human rights abuses have occurred in an offshored privatized detention centers. By analyzing the situation in toto, and not only focusing on the specific circumstance, the ECtHR would have a strong possibility of activating jurisdiction on a case-by-case basis through a state’s contactless-control.