Pushing Back Responsibility

In June 2025, the Greek government announced the deployment of naval warships to international waters off the Libyan coast, framing the operation as a necessary intervention to prevent migrants from reaching Greek territory. Prime Minister Kyriakos Mitsotakis justified the initiative as a “pre-emptive message”, intended to signal that human traffickers would no longer determine who is permitted to enter the country. These naval patrols, coordinated with Libyan authorities and supported by other European partners, emerged against the backdrop of a significant increase in sea crossings from northeastern Libya towards Crete and the southern islands of Greece. While officially presented as a legitimate response to a pressing security concern, the decision swiftly reignited longstanding debates surrounding the legality and ethical permissibility of Europe’s migration deterrence strategies. One might ask whether such measures could be justified under Article 25 of the ARSIWA as acts of necessity. However, the persistent nature of migration challenges the imminence criterion, and the existence of less intrusive alternatives weakens the claim. Coordination with Libyan authorities further undermines this defence, given the risk of violating non-refoulement, a principle that cannot be set aside. Far from constituting an isolated manoeuvre, Greece’s deployment highlights a broader pattern within the European Union’s evolving architecture of border governance: one in which the prerogative to control mobility is increasingly exercised beyond territorial borders (Italy’s 2017 Memorandum of Understanding with Libya and the EU’s training and equipping of the Libyan Coast Guard), through practices that blur the lines between national sovereignty, humanitarian obligation, and the selective activation of international legal norms.

This article argues that such maritime deterrence strategies increase the dangers faced by migrants and lead to situations where states wrongfully abdicate their legal responsibilities. These practices reinforce structural patterns of exclusion that stand in direct contradiction to the universality of human rights and foster the development of legal black holes at Europe’s external borders.

Do Deterrence Tactics Increase Migration Dangers?

Since 2016, EU Member States have stepped up efforts to prevent departures from Libya, promoting this strategy as key to dismantling smuggling networks and reducing deaths at sea. It assumes that a strong naval presence would deter crossings and disrupt traffickers’ business models, ultimately discouraging irregular migration. Yet, these measures often increase the dangers of such journeys and, paradoxically, enhance smuggling networks’ adaptability. Evidence suggests that maritime deterrence (eg. sea interdictions or detention) may redirect or delay crossing attempts, rather than reduce the total scale of irregular migration. The gradual closure of safe migratory routes forces people to resort to dangerous alternatives.

The recent increase in departures from Libya towards Greece, a new phenomenon, must be understood as a direct consequence of intensified controls along the central Mediterranean route. Smuggling networks, quick to adapt to enforcement shifts, now deploy smaller, less seaworthy vessels, increase nighttime departures, and explore new trajectories to evade detection, raising the risk of shipwrecks. They also launch multiple boats simultaneously to overwhelm naval patrols. For migrants, danger is rarely a deterrent when fleeing war, persecution, or extreme poverty. In the absence of legal pathways, deterrence measures only deepen their reliance on smugglers and further fuel the profitability of clandestine networks.

In 2017, the EU began equipping and financing the Libyan Coast Guard while simultaneously restricting NGO-led rescue operations, the mortality rate in the Mediterranean has risen markedly. UNHCR data indicate that in 2018, the likelihood of dying during the Libya–Europe crossing was 1 in 18, compared to 1 in 42 the previous year. Human Rights Watch has directly linked this increase in fatalities to European border policies. The Pylos shipwreck in 2023 underlines this point: a fishing vessel carrying around 700 migrants was left without immediate assistance despite being under the surveillance of the Greek Coast Guard and despite offers of intervention from NGOs. Subsequent accounts suggested that the Coast Guard may have deliberately delayed their intervention in the hope that the vessel would drift out of the Greek search and rescue zone.

Navigating Maritime Obligations

Migrant vessels crossing the Mediterranean are often unflagged and unfit for safe navigation. In such cases, the law of the sea allows a limited right of visit to verify a vessel’s identity and investigate potential unlawful activities. However, international instruments clearly distinguish these vessels from those involved in piracy or the slave trade, which the United Nations Convention on the Law of the Sea (UNCLOS) defines narrowly.

Article 98 of UNCLOS codifies the duty incumbent upon all states parties to ensure that their vessels (including warships) render assistance to persons in distress at sea. This obligation, binding on shipmasters, flag states and coastal states, is reinforced by the SOLAS and SAR Conventions, which set out coordinated rescue and disembarkation obligations. International law does not require disembarkation at the nearest port but at a “place of safety”, as clarified by IMO Resolution MSC. 167, though this is often overlooked or misrepresented in political discourse. A “place of safety” refers not to geographic proximity, but to a location where rescued individuals are safe, have their basic needs met, and can continue their journey. The SAR Convention also obliges states to coordinate rescue and ensure prompt disembarkation, acting in good faith and without undue delay. On this point, UN agencies (United Nations High Commissioner for Refugees; International Organization for Migration; United Nations Support Mission in Libya), are unequivocal: Libya cannot, under any circumstances, be considered a place of safety for disembarkation. Returning migrants to Libya exposes them to systematic risks of arbitrary detention, torture, sexual violence, and human trafficking, in violation of the non-refoulement principle and the duty to protect life. This position has been affirmed by the Human Rights Committee, which found Italy and Malta (2020; 2025) in violation of the right to life for failing to assist migrants in distress during the 2013 shipwreck, despite their respective obligations under international maritime law. Consequently, Greece incurs responsibility by transferring rescued individuals to authorities unable to guarantee their protection. Even if framed as deterrence, coordinating interceptions with Libyan forces does not absolve Greece of its maritime and human rights obligations. From a maritime perspective, Greece’s maritime strategy operates on a legal edge: inspecting stateless vessels may be lawful, but the duties to rescue and prevent refoulement to unsafe countries remain absolute.

Non-Refoulement and Extraterritorial Human Rights Obligations

International refugee law and international human rights law impose a prohibition of non-refoulement that is absolute and non-derogable where there is a real risk of torture, inhuman or degrading treatment, or threats to life in the receiving state. This obligation applies wherever a State exercises jurisdiction or effective control, including extraterritorially, and regardless of whether the individual has formally claimed asylum. The application of non-refoulement in relation to risks of other rights violations, such as deprivation of liberty, may depend on whether such risks amount to treatment prohibited under these absolute protections. This principle, enshrined in Article 33 of the 1951 Refugee Convention and recognised as customary international law, applies wherever a state exercises effective control over individuals. However, the precise scope and content of the customary rule, particularly in its extraterritorial application, remain subject to some interpretive uncertainty.

The declared objective of the Greek authorities in June 2025 raises questions concerning Greece’s obligations, namely its non-refoulement obligations. The judgment delivered in Hirsi Jamaa v. Italy (2012) is particularly instructive in this regard. The European Court of Human Rights held that Italy, by intercepting Somali and Eritrean migrants on the high seas and transferring them directly to Libya, had exercised extraterritorial jurisdiction which triggered its obligations under the European Convention on Human Rights (ECHR). Italy was found to have violated Article 3 (prohibition of torture and inhuman or degrading treatment), Article 4 of Protocol No. 4 (prohibition of collective expulsion), and Article 13 (right to an effective remedy). The key lesson is clear: European states cannot lawfully conduct extraterritorial interceptions leading to direct or indirect refoulement. Greece, as an ECHR party, cannot tow migrant vessels to Libya or transfer individuals to Libyan authorities without incurring international responsibility.

Greek authorities may limit their legal exposure by claiming that naval operations remain preventative, avoiding direct boarding and instead notifying Libyan authorities or shadowing vessels from afar. However, such “contactless control” does not absolve Greece of its legal obligations. Under the ECHR and other human rights instruments, jurisdiction extends to situations where a state exercises power or effective control over individuals, though recent case law has sought to narrow this scope.

In S.S. v. Italy (2025), the European Court declared inadmissible a claim concerning Italy’s coordination of a Libyan Coast Guard interception in international waters. The Court reasoned that Italy did not exercise sufficient jurisdiction over the migrants, despite Italy’s logistical support and central role in coordinating the interception, and concluded that the Libyan authorities acted autonomously, thereby severing Italy’s chain of responsibility. This restrictive interpretation has been widely criticised. Among the critics is Professor Violeta Moreno-Lax, who acted as counsel for the applicants and has argued (both as a scholar and practitioner) that the decision facilitates the outsourcing of push-back operations to third parties, enabling European states to evade accountability.

Conclusion

The deterrence-based approach does not reduce mortality at sea. Rather, it perpetuates cycles of suffering in which individuals intercepted and returned to Libya repeatedly attempt the crossing, thereby sustaining the profitability of criminal networks. Legal scholars, have described this dynamic as a strategy of “non-entrée”, one designed to systematically block access to European territory in order to prevent individuals from reaching a position where they might activate the rights that international law guarantees them.