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Migration control policies among destination States in Europe are characterised by control and deterrence. The measures implemented to pursue these policies, such as push-backs, have increasingly been subject to legal challenges and failing to comply with the principle of non-refoulement, among other human rights obligations. This has led States to outsource migration control measures to third countries. By disrupting the jurisdictional link between the destination State and the performance of the measure, such States aim to evade responsibility for any human rights violations that are perpetrated. In contrast to push-back measures, these measures have become known as “pull-backs” as they entail the return of migrants to the country of departure by that country’s authorities before they reach the territorial waters of the destination State. These measures have also been described as “contactless” in the sense that they are “exercised through remote management techniques”.191 Furthermore, they are “cooperative”

as they are performed “in cooperation with a local administration acting as a proxy”.192However, these measures are soon to also be scrutinised by the ECtHR as an application has been filed before the Court concerning the responsibility of Italy for its assistance to the LYCG in a pull-back operation involving the interception and return of boat migrants in the Mediterranean

192Ibid.

191Moreno-Lax (n 6), 387.

190Ciliberto (n 5).

to Libya.193The applicants argue that Italy should be held responsible for human rights violations including a breach of the principle of non-refoulement under Article 3 ECHR. The case, S.S. v Italy is currently pending before the Court. The purpose of this research was to analyse the alleged facts of the case and answer the general question of whether Italy has breached its obligation of non-refoulement as enshrined in Article 3 ECHR through its conduct with respect to the Libyan pull-back.

In order to answer this general question, I was first required to determine whether Italy has exercised extraterritorial jurisdiction under Article 1 ECHR, as this is a precondition to holding a State responsible. Establishing the jurisdiction of Italy poses the greatest challenge to the success of the case.

First, I analysed the case-law on the “effective control” test formulated in Al-Skeini and as applied in cases on the high seas such as Hirsi-Jamaa. I found that this test does not apply to the present case. The lack of physical control on the part of Italy leads to the conclusion that they do not exercise effective control over the individuals. Neither does Italy exercise effective control over the territory, as the LYCG which performed the interception and return of the migrants was under the effective control of Libya.

Second, I analysed the case law on the standard of “decisive influence” which was developed in case-law by the ECtHR concerning the various ECHR violations carried out in the separatist region of the MRT. I found that each of the criteria for establishing extraterritorial jurisdiction using this standard were met in the present case: (i) the LYCG was not set up with the support of Italy but was barely functional until it was provided with support by Italy;194 (ii) the LYCG “at the very least under the decisive influence” of Italy; (iii) the LYCG survived by virtue of the funding, equipment and training given to it by Italy under the MoU; finally (iv) Italy continued to support and to cooperate with Libya beyond the pull-backs at issue and made no attempt to prevent nor put an end to the violations being perpetrated by Libya during the pull-backs.195 Although each of the criteria were met, I concluded that it is doubtful whether the

195Ilaşcu (n 86), 392-393.

194Heller and Pezzani (n 20) 29-33.

193S.S. & Others v. Italy (n 14).

Court would ever apply this approach given the significant factual differences between this line of case-law and the case at hand, as well as the lack of territorial control on the part of Italy. It is clear from this analysis that the case-law on extraterritorial jurisdiction is unclear and tends to follow a “piecemeal approach”.196 Instead of adopting one clear definition, the Court tries to tailor the notion of effective control on a case-by-case basis.197

Finally, I considered the possibility of adopting a functional approach to jurisdiction as has been proposed by various human rights scholars as well as in some separate opinions of ECtHR judges, such as the separate opinion of Judge Bonello in Al-Skeini.198 I stated that adopting a functional test to jurisdiction would inject certainty into the case-law of the ECtHR concerning extraterritorial jurisdiction. It would also be more inclusive as it would be easier for human rights violations to fall within its scope. I concluded that a functional test would provide the greatest possibility for establishing the extraterritorial jurisdiction of Italy in the present case.

The second part of my thesis sought to answer whether the responsibility of Italy with respect to the Libyan pull-back would be engaged in the present case. I first analysed the case-law concerning the doctrine of positive obligations. I found that Article 3 ECHR, which contains the cognate duty of non-refoulement, imposes positive obligations of due diligence,in particular, State parties have a duty to protect. This requires States to take measures designed to ensure that individuals within their jurisdiction are not subject to treatment contrary to Article 3 ECHR.199 Under this doctrine, States are required to undertake reasonable steps to prevent ill-treatment of which the authorities had or ought to have knowledge of.200I concluded that Italy will be held responsible for failing to comply with the positive obligation to protect. In particular, Italy failed to prevent the LYCG from intercepting and returning the migrants to Libya. It may also be held responsible for not attempting to prevent the LYCG from perpetrating the violations during this operation.201 Furthermore, Italy had knowledge of the ill-treatment as the widespread human rights violations being perpetrated against migrants in Libya was well-known and easily

201Ciliberto (n 5).

200 Osman v the United Kingdom (n 134); Z. a.o. v the United Kingdom, (n 134), Kelly a.o. v the United Kingdom (n 134).

199Den Heijer (n 48).

198Al-Skeini (n 45), Concurring Opinion of Judge Bonello.

197Ibid.

196de Boer (n 102), 125.

verifiable by reliable sources. Next, I analysed the possibility of holding Italy responsible for its complicity with respect to the Libyan pull-back. Applying Article 16 ARSIWA to the present case, I found that each of the three requirements for aid and assistance. First, the material element was fulfilled as Italy has funded, trained and equipped the LYCG. Specifically with reference to the Libyan pull-back, the vessel which the LYCG used to perform the SAR operation was donated by Italy. Moreover, the MRCC coordinated the operation.202 It is argued that the information provided to the LYCG on the location of the migrant boat in distress along with the support given by Italy under the MoU amount to conducts that “contributed significantly” to the performance of the interception and return to the country of departure, thereby fulfilling the first element..203 Second, the mental element is satisfied by the application of both the second and third interpretations.204 It is clear that Italy knew (or should have known) of the widespread human rights violations being perpetrated against migrants in Libya.205Finally, the opposability requirements were fulfilled. While not being party to the Refugee Convention or the ECHR, Libya is nonetheless a party to the ICCPR and the CAT which contains a cognate duty of non-refoulement.206 The fact that Libya is not a party to the ECHR or the Refugee Convention is no bar to establishing that Libya is under an international obligation to respect the principle of non-refoulement contained in Articles 6 and 7 ICCPR as well as Article 3 CAT.

However, it is doubtful whether Article 16 ARSIWA would be applied to the present case as the ECtHR rarely refers to this Article and there are problems associated with the Monetary Gold principle.

In conclusion, it is my opinion that it is difficult to assert with complete certainty whether the ECtHR will find that Italy has breached its obligation of non-refoulement as enshrined in Article 3 ECHR through its conduct with respect to the Libyan pull-back. This is due to the lack of consistency in the Court’s case-law on extraterritorial jurisdiction. I espouse Lea Raible’s view that every new judgment from the Court “seems to either add another layer of confusion or line

206The ICCPR has been interpreted to impose a duty of non refoulement at least in cases involving risk of the breach of Articles 6 and 7. The CAT proscribes return to torture in Article 3.

205Ibid.

204Ibid.

203ILC Commentaries, 66. See Violeta Moreno-Lax and Mariagiulia Giuffré, (2019), 21; Giulia Ciliberto (2018).

202S.S. & Others v. Italy (n 14).

of case-law different from the rest”.207 Unless the jurisdiction of Italy is established, there is no possibility of holding Italy responsible. I do not think that Italy’s conduct will satisfy the tests of

“effective control” over the individual or over the territory. Likewise, I find it doubtful that the Court will apply the “decisive influence” standard to the present case. However, I do think that the adoption of a functional test for jurisdiction provides the greatest possibility for holding Italy responsible. I believe that the Court has demonstrated a willingness to incorporate functional aspects in its case law on extraterritorial jurisdiction. Therefore, I find it plausible that the Court will adopt a functional test in the present case. Should the Court decide to do so, the responsibility of Italy will be engaged for the breach of its positive obligations of due diligence, in particular, the duty to protect, which requires Italy to take measures designed to ensure that individuals within their jurisdiction are not subject to treatment contrary to Article 3 ECHR.208If the Court rules in this way, this would be a highly impactful judgment on contactless migration control measures in Europe and will have important effects on the delegitimisation of these measures. However, this is not only important for the European context. Contactless migration control measures such as the one in the present case are a common deterrence policy practiced by States around the world. If the ECtHR finds that Italy is responsible for a breach of the non-refoulement principle, this could impact the migration control policies of countries worldwide. If Italy does not incur responsibility, this will create a precedent of legitimising such measures. Due to the fundamental nature of the principle of non-refoulement, it is imperative that the rights of migrants who are victims of such severe measures are protected. Further, it is important that States should be held responsible for violations of human rights and are prevented from circumventing their legal obligations by outsourcing their migration control measures to third countries.

208Den Heijer (n 48).

207Lea Raible, ‘The Extraterritoriality of the ECHR: Why Jaloud and Pisari Should Be Read as Game-Changers’ (2016) 2 European Human Rights Law Review 161, 161.

Bibliography Books

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Crawford J, State Responsibility: The General Part (Cambridge University Press, 2013).

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De Boer T, ‘Closing Legal Black Holes: The Role of Extraterritorial Jurisdiction in Refugee Rights Protection’ (2013) 28(1) Journal of Refugee Studies 118

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Giuffré M, ‘A functional-impact model of jurisdiction: Extraterritoriality before of the European Court of Human Rights’ (2021) 82 QIL Zoom-in 53

Giuffré M, ‘State Responsibility Beyond Borders: What Legal Basis for Italy’s Push-Backs to Libya?’ (2012) 24(4) International Journal of Refugee Law 692

Hathaway J, 'The False Panacea of Offshore Deterrence' [2006] 26 Forced Migration Review 56

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Markard N, ‘The Right to Leave by Sea: Legal Limits on EU Migration Control by Third Countries’ (2016) 27(3) European Journal of International Law 591

Moreno-Lax V ‘The Architecture of Functional Jurisdiction: Unpacking Contactless Control – On Public Powers, S.S. and Others v Italy, and the “Operational Model”’ (2020) 21(3) German Law Journal 385

Moynihan H, ‘Aiding And Assisting: The Mental Element Under Article 16 of The International Law Commission’s Articles On State Responsibility’ (2018) 67 ICLQ 455

Nolte G and Aust HP, ‘Equivocal Helpers—Complicit States, Mixed Messages and International Law’ (2009) 58 ICLQ 1

Pijnenburg A, ‘From Italian Pushbacks to Libyan Pullbacks: Is Hirsi 2.0 in the Making in Strasbourg?’ (2018) 20 European Journal of Migration and Law 396

Raible L, ‘The Extraterritoriality of the ECHR: Why Jaloud and Pisari Should Be Read as Game-Changers’ (2016) 2 European Human Rights Law Review 161

Robinson N, ‘Convention Relating to the Status of Refugees: Its History, Contents and Interpretation—A Commentary’ (Institute for Jewish Affairs 1953)

Sinha A, ‘Transnational Migration Deterrence’ (2022) 63(4) Boston College Law Review 1295

Reports

Heller C and Pezzani C, ‘Mare Clausum: Italy and the EU’s undeclared operation to stem migration across the Mediterranean’ (27 December 2018) Forensic Oceanography, at:

<https://content.forensic-architecture.org/wpcontent/uploads/2019/05/2018-05-07-FO-Mare-Clau sum-full-EN.pdf>

Official Documents

Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees HCR/MMSP/2001/09, Preamble, para. 4.

Joint Communication to the European Parliament, the European Council and the Council, Migration on the Central Mediterranean route: Managing flows, saving lives (25 Jan. 2017) JOIN/2017/ 4 final.

Memorandum of understanding on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling and on reinforcing the security of borders between the State of Libya and the Italian Republic (2 February 2017) English translation available at:

<https://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_fina lversion.doc.pdf>

Table of Cases

ECtHR:

Al Nashiri v Poland (2014) ECHR 28761/11

Al-Saadoon and Mufdhi v. United Kingdom (2009) ECHR 61498/08 Al-Skeini and Others v United Kingdom (2011) ECHR 55721/07 Al-Skeini, Judge Bonello concurring opinion (2011)

Banković and Others v. Belgium and 16 Other Contracting States (2001) ECHR Admissibility 52207/99.

Catan and others v The Republic of Moldova and Russia (2012) ECHR 43370/04, 8252/05 and 18454/06

El-Masri v ‘The Former Yugoslav Republic of Macedonia (2012) ECHR 39630/09 Hirsi Jamaa and Others v. Italy (2012) ECHR 27765/09

Husayn (Abu Zubaydah) v Poland (2014) ECHR 7511/13

Ilaşcu and Others v. Moldova and Russia (2004) ECHR 48787/99 Kelly a.o. v the United Kingdom (2001) ECHR 30054/96

Medvedyev and Others v. France (2010) ECHR 3394/03

Mozer v the Republic of Moldova and Russia (2016) ECHR 11138/10 M.S.S. v. Belgium and Greece (2011) ECHR 30696/09

Osman v the United Kingdom (1998) ECHR 23452/94

Sandu and Others v the Republic of Moldova and Russia (2018) ECHR 21034/05 Soering v. The United Kingdom (1989) ECtHR 14038/88.

S.S. et autres v. Italy, introduced 3 May 2018 (Application No. 21660/18) Women on Waves and Others v. Portugal (2009) ECHR 31276/05

Z. a.o. v the United Kingdom (2001) ECHR 29392/95

ICJ:

Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), Preliminary Question, ICJ Reports 1954

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43

UNHCR

UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’ (26 January 2007).

Table of Legislation

Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171

ILC, ‘Articles on the Responsibility of States for Internationally Wrongful Acts’ (November 2001) UN Doc A/56/49

Blog Posts

Council of Europe, Guide on Article 1 of the European Convention on Human Rights -Obligation to respect human rights – Concepts of “jurisdiction” and imputability (30 April 2022)

<https://www.echr.coe.int/documents/guide_art_1_eng.pdf> accessed 20 June 2022

Baumgärtel M, ‘High Risk, High Reward: Taking the Question of Italy’s involvement in Libyan

‘Pullback’ Policies to the European Court of Human Rights’ (EJIL: Talk!, 14 May 2018)

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