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Monday, 27 November 2023

Dr Tugba Basaran is a Director of the Centre on the Study of Global Human Movement, Convenor of the Refugee Hub and a Fellow of the Lauterpacht Centre.





Writing international law at the border: A view from Samos

Friday, 15 September 2023. Early morning hours in Samos, Greece. As I’m preparing to leave the hotel, my colleague points towards the pebble beach next to us …a few life vests at the shore, a children’s shoe, a jacket, some black tires and the remainders of an inflatable dinghy equipped with boards and a motor. 

Image: Early hours of 15th September 2023: Source: AuthorAccording to the life vest count, around ten people landed onshore not long ago. At night-time we can see the lights shining bright on Turkiye’s coastlines. They can also see ours across the sea. Maybe they followed the lights to cross the border and enter Greece. The significance of the international border, a technical line of separation, setting the territorial boundaries of the Greek state, is indispensable to protection claims. This is evident to the refugees as well as the coastguards; each reinforces their claim to the importance of the line, the refugees by crossing it, the coastguards by enforcing it. More than a thousand people have crossed the seas to arrive on this island last month. Many more have arrived on Lesvos, Chios and other Aegean islands and islets that have become the frontiers of the European Union. This is an ordinary day in Samos.

International law has always been disputed in the Aegean Sea. Greece and Turkiye both contest the delimitation of territorial waters, of airspace and even the status of the islands, occasionally leading to threat of military confrontation. Enforcing and violating international law are concurrent practices here, also for refugees and migrants. There are the coercive measures of the coastguards, unlawful under international law, also known as pushbacks, taking place on the seas and even upon arrival of refugees on the islands. Often ignored, but more relevant are lawful ways of undermining state obligations under international law. The EU-Turkey statement of 18 March 2016 declares that all irregular migrants crossing to the Greek islands will be returned to Turkey “in full accordance with EU and international law”. A Greek Joint Ministerial Decision issued December 2021 designates Turkey as a safe third country for nationals of Afghanistan, Bangladesh, Pakistan, Somalia and Syria.  They are presumed to be safe in Turkiye and by implication deemed, in lack of contrary evidence, inadmissible. The grey zone to the non-refoulement principle of the 1951 Refugee Convention, article 33, is all too apparent. For other nationals this clause does not apply, Turkey remains unsafe, leading to a two-tier process upon arrival, depending upon the country of origin.

Enforcing international law on Samos comes at a substantial cost. Opened in 2021, the Samos camp is the first Closed Controlled Access Centre (CCAC), funded by the EU at a cost of 43 million Euros. The remainders of the informal camp in Vathy, located at the hillside of the town Samos, are still visible. The CCAC is located in Zervou, a few kilometres from the town, isolated in a mountainous area, surrounded by elevated barbed wire in two sets, allowing cars to circulate in-between, equipped with a high-tech biometric entry-exit system. People who arrive here are detained for more than two weeks until their registration. In spite of its high-tech nature, there are the odd parts to the new camp – during our time there, many complain that water is limited to a few hours a day and point to the lack of a permanent medical doctor (a volunteer doctor from a nearby hospital provides support). We do not enter. Access for individuals and organisations is restricted and requires authorisation, but once registered camp residents can enter and leave the camp during daytime. Samos town is a bus ride or an hour walk away. 

Samos is just one island in the border landscapes of Europe. Europe and its spectres loom across islands, seas and neighbouring countries, creating legal borders, shifting these in as well as out, and by that providing a legal infrastructure for greyzones, for circumventing the non-refoulment principle of the Refugee Convention. These legal borders of entry can be located anywhere - at the international border, at the port of departure or in some cases even upon arrival, internalized through inadmissibility and return procedures, externalised by restricting points of departure abroad, the impossibility of boarding an international flight or ferry, accessing visas or other legal and safe pathways. These practices illustrate uses of statecraft, determining the where and when of legal borders, states practices of circumventing laws and creating new legal geographies of borders as well as the potential violence inherent to international law.

The human cost of these policies is most evident in the wave of people that regularly drown in the easily navigable waters of the Aegean sea, the Mediterranean and the Atlantic. Even the long-established duty to rescue, a pillar of international law has been increasingly undermined, colonialised and racialised, in particular through uses of anti-smuggling laws. As part of statecraft and its spectres, rescue and assistance have increasingly become part of deterrence policies and even criminalized. Whilst the United Nations Convention Against Transnational Organised Crime and its protocol against the smuggling of migrants provide an exception for humanitarian acts, this is optional under the EU Facilitation Directive of 2002. Here state and European practices reframe international law and morality. It is only recently that a refugee steering a boat towards Samos was facing a life sentence for the death of his own child, who drowned in the Aegean. Here law is politics – a way to govern, expanding and contracting rules, creating greyzones to rules, using conflicts within and between different rules in the name of statecraft. The view from Samos is not unique.

The ephemeral and violent nature of international borders and international law, encountered in Samos and other borderlands, stands contrary to the illusion of rule-based stasis and permanence of international borders, underlining a view from below, focusing on the practices and daily workings of international law on the lives of people on the move, foregrounding those affected. At the forefront of international law are then questions on whose lives count, how politics of international law impact lives differently, facilitating the lives of some, whilst threatening others with its violence. 

The families that arrived this morning are likely to spend a few months here, then receiving the possibility to move freely within Greece, spending possibly a few more months there, then maybe a year or two on the road to arrive at their destination, which may well be the UK. 

It’s 10am in Samos. I pack my clothes and take a plane to Athens, going back to Cambridge. This is an ordinary day at the borders of Greece, an ordinary event in international law.

Image: Early hours of 15th September 2023: Source: Author

With my utmost gratitude for her generous hosting and support to Dr Anastasia Christophilopoulou, Being an Islander and WASAP fieldwork project

This article first appeared in Lauterpacht Centre News (LCN) - November 2023

For further information, see publications by author:

Basaran, T., Security, Law and Borders: At the Limits of Liberties. London: Routledge 2010
Basaran, T., ‘Saving Lives at Sea: Security, Law and Adverse Effects’, European Journal of Migration and Law 16(3) 2014: 365-387