Human Rights Due Diligence Policies Applied to Extraterritorial Cooperation to Prevent “Irregular” Migration: European Union and United Kingdom Support to Libya

Extraterritorial cooperation—including by providing funds, equipment, training, and technical support—has become central to policies aimed at preventing access of refugees and “irregular” migrants to particular countries and regions. But cooperating countries and international organizations have due diligence obligations under human rights law to take all reasonable steps to ensure that the cooperation they provide does not result in human rights violations, even when the violations are perpetrated extraterritorially by third parties. Consequently, they can become liable for the failure to exercise due diligence to prevent human rights violations from occurring in the receiving states. Also, they may incur responsibility for the resulting acts where they knowingly aided or assisted the receiving state to commit human rights violations with the support provided. International organizations and some states have begun to adopt human rights due diligence policies to assess and mitigate the risks of such cooperation. Using the examples of European Union and United Kingdom support to Libya, this Article analyzes the due diligence policies they have applied to extraterritorial cooperation in the area of border control and the detention of refugees and other migrants. It finds that the policies as implemented have provided only superficial scrutiny and argues that they should be made more robust and transparent. Ultimately, this will help mitigate the human rights risks associated with extraterritorial assistance, and ideally help ensure that assistance contributes to the strengthening of human rights protections in recipient countries.