Should states control their borders? The Ceuta crisis and international law
Should states control their borders? The Ceuta crisis and international law
Her Carmen Pérez is a full professor of Public International Law and International Relations at the Carlos III University of Madrid and a member of the Research Group on Law and Justice…
18 August 2026
Ceuta, a Spanish enclave on the coast of North Africa with a population of around 80.000, experienced an unprecedented mass influx of people in the last week of July. Around 70.000 people, mainly Moroccan nationals but also people from other countries, entered the territory irregularly. Although the exact reasons remain uncertain , the immediate trigger appears to have been a wave of false information on social media that Spain’s borders were open. This claim was based in part on a distorted interpretation of the Spanish Supreme Court’s ruling of 29 June 2026 on the so-called “rejection at the border” ( rechazo en frontera ) regime, which applies to the Ceuta and Melilla fences.
The Supreme Court had clarified that this regime did not apply to people intercepted at sea; instead, their cases had to be dealt with under the normal removal procedure of Article 58 of the Spanish Aliens Act . The decision did not establish open borders, but was presented as such online. The consequences were dramatic. Many of the arrivals were hungry, dehydrated and homeless. At least 82 people died , including those who drowned or were crushed in the panic. According to reports, thousands of unaccompanied minors were among the arrivals. Most subsequently returned voluntarily to Morocco or were accompanied on their return through border crossings. As of August 4, several thousand remained in Ceuta, including approximately 1.000 unaccompanied minors —among them girls who have reported sexual abuse.
The crisis quickly became a diplomatic and political issue. Spain called the crossings a violation of its territorial integrity . Parallels were drawn with Morocco's Green March in 1975, while some politicians and commentators cited the more recent instrumentalization of migration by Belarus at the expense of Poland. Such statements must be understood in the light of the geographical and political context of Ceuta and Melilla, over which Morocco historically claims sovereignty.
In this context, the characterisation of the events as a blow to Spain’s territorial integrity takes on a significance that goes beyond the usual border control and must also be interpreted in the light of the long-standing dispute over the status of the two “autonomous cities” ( ciudades autónomas ). Morocco denied having organised the events, attributing the movement to economic conditions, criminal networks and disinformation. At the same time, Morocco cooperated with Spain on the subsequent returns.
Indeed, the Ceuta incident is not the first of its kind. In April 2021, Brahim Ghali, President of the Sahrawi Arab Democratic Republic and Secretary-General of the Polisario Front, was admitted to a hospital in Spain for treatment for COVID-19. His presence in Spain sparked a diplomatic crisis with Morocco, which strongly protested the decision. A few weeks later, in May 2021 , Morocco relaxed controls on its border with Ceuta, resulting in the arrival of around 10.000 migrants, including a large number of unaccompanied minors. Spain deployed security forces at the border and subsequently returned many of those who had entered. The incident was widely seen as a case of migration being used as a means of exerting political pressure on Spain.
At this stage, it is not clear that the July 2026 movements were deliberately instrumentalised by Morocco. Such an allegation would need to be substantiated by evidence that the migration flows were deliberately facilitated or exploited as a means of exerting political pressure on Spanish decision-making. If this were proven, this behaviour would raise concerns not only from the perspective of Spain’s territorial integrity, but also of its political independence, to the extent that migration would have been deliberately used as a tool to exert pressure on Spain and influence its political choices. In such a case, the events in Ceuta could be part of the broader debate on whether and to what extent the deliberate use of migration flows for political reasons can justify the restriction, suspension or otherwise adjustment of certain legal guarantees provided to migrants. The recent Chisinau Declaration seems to move in this direction. While reaffirming that migrants continue to be entitled to protection under the ECHR, the Declaration explicitly acknowledges the phenomenon of the instrumentalization of migration and calls for “new approaches” to address the challenges posed by large-scale irregular arrivals.
This raises a difficult question: can the exceptional circumstances created by the deliberate political use of migration affect the application or interpretation of guarantees such as the prohibition of collective expulsions and access to asylum procedures? The same question arises in relation to the specific guarantees applicable to unaccompanied minors. All these guarantees derive, directly or indirectly, from the principle of non-refoulement and , in the case of children, from the principle of the best interests of the child.
I do not intend to examine here the extent or implications of the Declaration on this issue, as both this blog—see, for example, here , here , here , here and here —and other blogs—see here and here —have already published excellent analyses of the issue. I would, however, like to elaborate further on an issue that was identified in one of these posts.
In his analysis of the preliminary draft text of the final document containing elements for a political declaration to be adopted in Chisinau, Lorenzo Acconciamessa raises the question of whether states can be considered to have an obligation to protect their borders. It is true, he argues, that the protection of borders can be understood as a sovereign right, which does not seem to have been challenged either by the ECtHR or by international law more generally.
The starting point is clear: Spain and Morocco are entitled to protect their territorial integrity and control migratory movements across their borders. There is nothing inherently illegal in preventing irregular crossings, deploying border security forces, disrupting smuggling networks or arranging for the return of persons who do not have the right to stay . But can this really be described as an obligation? If so, what would be its legal basis and what would be its content? These are particularly crucial questions, which will have to be examined, to a greater or lesser extent, both by the International Court of Justice in The Hague in its forthcoming judgment in the case of Lithuania v. Belarus , and by the ECtHR in a series of pending cases.
A border control duty based on the obligation to combat illegal migrant smuggling?
Could such a border control duty be based on existing obligations of States to combat migrant smuggling? This is perhaps one of the most promising lines of inquiry, as it lies at the heart of the aforementioned case pending before the International Court of Justice in The Hague. International law does not generally seem to recognise a self-standing obligation of States to prevent all irregular movements across their borders. The situation may, however, be different when irregular migration is facilitated by organised networks active in migrant smuggling.
States have undertaken specific obligations to prevent and combat the smuggling of migrants, including through the Protocol against the Smuggling of Migrants by Land, Sea and Air, which supplements the United Nations Convention against Transnational Organized Crime . This raises the question of whether these obligations can be interpreted as requiring States not only to prosecute smugglers ex post, but also to take reasonable measures to prevent their territory from being used as a base for organized irregular migration. If so, the obligation to combat smuggling could provide a more specific legal basis for a broader duty to exercise effective border control.
The Ceuta crisis offers an interesting test of this view. Morocco is not a party to the UN Protocol against the Smuggling of Migrants, so Spain could not simply invoke the Protocol as a source of Morocco’s binding obligation. If Morocco knowingly permitted or facilitated the mass movement of migrants towards the Spanish border, regardless of whether it was politically motivated, the question would be whether an obligation to prevent and combat migrant smuggling could be inferred from general international law.
This complicates the argument considerably: it would be necessary to demonstrate not only the existence of such a general obligation, but also its precise content and, in particular, whether it includes a duty to prevent irregular departures or, in other words, to exercise effective control over migration flows. The distinction between the obligation to combat migrant smuggling and a broader obligation to control irregular migration is therefore crucial.
Any obligation formulated in these terms must, however, be assessed not only from the perspective of the State, but also from that of the individuals concerned. A broadly formulated duty to prevent irregular departures would necessarily entail a restriction on departure and would therefore have to be reconciled with the right of everyone to leave any country, including his own, as enshrined in Article 13(2) of the Universal Declaration of Human Rights , Article 12(2) of the International Covenant on Civil and Political Rights and Article 2(2) of Protocol No. 4 to the ECHR.
As Jane McAdam demonstrates , the right of every person to leave any country, including his own, is firmly established. It cannot, however, be equated with a right to permanent migration, as it remains an “imperfect” right: since it does not correspond to any obligation of admission, it cannot be equated with a right to migrate. It is this asymmetry—and not any weakness of the right itself—that channels migrant movement into irregularity, as those denied legal entry usually attempt to enter illegally (see here ).
Irregular departure does not for that reason deprive the migrant of protection. The Smuggling of Migrants Protocol may allow, and even require, States to prevent unauthorized exit, but article 5 of the Protocol protects the migrant in transit from criminal liability under the Protocol on the ground that he or she has been the subject of smuggling. Furthermore, as the Human Rights Committee insists in General Comment No. 27 , any restriction on departure must meet the requirements of article 12, paragraph 3, of the ICCPR and must not “swallow the rule”.
Returning to McAdam, one could conclude that the right to leave, although now a fundamental principle of human rights treaty law, has never been an absolute right. It has always been subject to limitations—such as criminal proceedings, military service, contractual or fiscal obligations, and public health reasons—and in practice is impeded by passports and exit visas, with a “striking consequence” of the historical gap between principle and state practice. The right therefore operates within its own limits and against a firm backdrop of state control. In short, the right to leave is neither absolute nor self-executing: its recognition as a fundamental right resolves neither the question of the extent of permissible restrictions nor that of entry.
This issue also illustrates why the distinction between a right and an obligation to protect borders is important. If border control is simply a sovereign right, its exercise remains primarily a matter of state discretion, subject to applicable human rights constraints. By contrast, if international law imposes a positive obligation to prevent certain forms of irregular migration — perhaps because of states’ obligations to combat migrant smuggling — the legal consequences are quite different. Then the question is not only what states are allowed to do at their borders, but also what they are obliged to do.
A duty to control irregular migration based on a right to safe, orderly and legal migration?
A different possible basis for recognizing a duty to control irregular migration is found in the international commitment to promote safe, orderly and regular migration (see here and here ). At first glance, this might seem to provide a relatively clear basis for States’ efforts to prevent irregular movements. However, such an obligation cannot be meaningfully understood in isolation from the other side of the issue: the duty to facilitate effective legal migration pathways.
The 2018 Global Compact for Safe, Orderly and Regular Migration is particularly important in this regard. Its core premise is not simply that States should reduce irregular migration, but that, through international cooperation, migration should be made safer, orderly and more regular, including by expanding legal pathways and addressing the factors that push people towards dangerous and irregular routes.
In this sense, the obligation to combat irregular migration cannot simply mean an obligation to prevent irregular border crossings. It must also entail an effort to ensure viable alternatives to irregular routes for those with legitimate reasons to migrate. This is particularly important when the absence of such alternatives is itself one of the factors that trigger irregular movements. From this perspective, the concept of safe, orderly and regular migration does not simply reinforce the case for border control; it also places such control within a broader framework of shared responsibility for creating legal pathways for mobility.
As regards Ceuta, this means that the existence and content of any duty to control irregular migration cannot be assessed solely on the basis of what Spain is entitled to do at its borders. It must also be considered what Spain , Morocco and the European Union are doing to make legal migration truly possible.
Where does the analysis of the question of the existence of a binding obligation end? Neither the Protocol against the Smuggling of Migrants, which is not binding on Morocco, nor the Global Compact, which is a political commitment and not a source of binding obligations, establish an autonomous duty to prevent irregular migration. This does not mean that general international law remains silent. Depending on the facts, other rules may apply: the Corfu Channel principle , according to which a State must not knowingly allow its territory to be used for acts contrary to the rights of other States, and, when migratory flows are deliberately used to influence the political choices of another State, the principle of non-intervention.
According to Milanovic ’s distinction between coercion as blackmail and coercion as control, the former would apply in this case. This is because the bending of Spain’s sovereign decisions through the threat of harm or actual provocation constitutes the element of coercion required to constitute prohibited intervention, in a way that a simple failure to control irregular departures would not. It would therefore perhaps be more accurate to conclude not that states have a general duty to control borders, but that international law imposes specific obligations in specific circumstances, the existence and content of which depend on the manner and purpose for which a neighbouring state acted.
Violation of border control obligations: state liability and enforcement
If such an obligation exists, a further issue concerns the legal consequences of its breach. Under the law of State responsibility , the responsible State is required to cease the wrongful conduct, provide full reparation and, where appropriate, assurances and guarantees of non-repetition. However, these consequences may not occur automatically, which raises the question of how compliance can be ensured through the mechanisms of international law.
Retaliatory measures , as legal measures, remain available, while countermeasures may also be considered , within the limits imposed by international law. When the scope or even the very existence of the obligation is in question, peaceful means of dispute resolution, including judicial mechanisms, acquire particular importance, as demonstrated by the case of Lithuania v. Belarus before the International Court of Justice in The Hague.
What seems clear is that, especially in cases of instrumentalization of migration, the consequences of the violation must be borne by the responsible state (see here ). A different, although related, question is whether this illegal act can in itself constitute a legal basis for the relaxation of the guarantees that the allegedly injured state owes independently to the individuals within its jurisdiction. It cannot, without the assistance of additional conditions.
An obligation such as the principle of non-refoulement is not owed to the neighbouring State. Therefore, its violation by that State neither triggers any circumstance that removes the unjust character of the act nor allows for the adoption of a countermeasure, which, in any case, cannot affect obligations to protect fundamental human rights. This is a temptation to which States tend to succumb and which seems to be at the heart of what the supporters of the Chisinau Declaration suggest (see here and here ).
At the present stage of development of international law, there is little basis for arguing that a State can invoke an exception to its obligations under the principle of non-refoulement or the principle of the best interests of the child on the grounds that another State has previously failed to comply with its own obligation to control borders in the context of combating irregular immigration. Nor can the judgment in ND and NT v. Spain be interpreted as establishing such an exception.
EU law had already faced this possibility. In the MA case (C-72/22 PPU), against the backdrop of the instrumentalisation of migration from Belarus, the Court of Justice of the European Union ruled that neither an emergency situation due to a mass influx nor irregular status could justify the refusal of access to the asylum procedure or the detention of an applicant solely on the grounds of irregular entry, rejecting Lithuania's general invocation of Article 72 TFEU .
Although the directives interpreted by the Court have since been replaced by the 2024 Pact on Migration and Asylum , the reasoning remains valid: exceptional circumstances do not override the guarantees due to persons who are within a State’s jurisdiction. This is particularly important because the rhetoric of border protection can easily blur the distinction between preventing irregular entry and returning persons who have already come under a State’s jurisdiction.
A State may take measures to prevent irregular crossings, cooperate with countries of origin and transit, combat trafficking networks and strengthen its external borders. However, the existence of a duty to control borders cannot create an exception to the principle of non-refoulement . Even if it were to be proven that a neighbouring State had facilitated or encouraged irregular movements with the aim of exerting pressure on Spain, this would not alter the individual protection obligations that Spain has towards persons within its jurisdiction.
The appropriate legal response to the conduct of the State responsible for instrumentalization should be sought in the rules of State responsibility, in diplomatic and political measures, in cooperation mechanisms or in other forms of international enforcement, and not in the abolition of guarantees that protect individuals from refoulement . State-sponsored, in general terms, the offense of a State does not in itself provide a legal basis for relaxing the obligations that another State has independently towards persons within its jurisdiction.
Crises like Ceuta inevitably put considerable pressure on states and international law. But precisely because of this pressure, decisions about the future direction of international law—and whether to weaken some of the guarantees painstakingly developed since the 1950s—require careful reflection, far removed from the urgency and political intensity of the crisis itself.
https://www.anixneuseis.gr/366818-2/