and the question of Italy’s Responsibility
under the ECHR for violations taking place
under Libyan pullbacks
LLM Master Thesis
Student name Maria Kanellopoulou
UvAnetID 12379123
e-mail marizakanellopoulou@outlook.com.gr
Master track LLM International and European Law: Public International Law
Supervisor Dr. Maarten den Heijer
, 2020
Amsterdam
Contents
Abstract...2
Section I: Introduction...3
The Externalization of Migration Management...3
The Italian-Libyan Partnership & its Implications for Human Rights protection...4
Outline & Aim of the paper...7
Section II: The notion of Jurisdiction & its extraterritorial reach in the Strasbourg system...9
(1) Jurisdiction in Human Rights Law...9
(2) Extraterritorial Jurisdiction in the light of the ECtHR’s caselaw...9
(3) The pending S.S. and Others v Italy case...15
Section III: Towards evolving the understanding of article 1 ECHR: Should the Libyan pullbacks entail Italy’s responsibility under the ECHR for violations taking place thereunder? ...17
(1) Object & Purpose of the ECHR...17
(2) Shifting towards a Functional notion of Jurisdiction...20
(3) Aiding or Assisting...22
(i) Article 16 ARSIWA...23
(ii) Applying the complicity rule of article 16 ARSIWA under the ECHR...27
(4) Due Diligence...30
Concluding Remarks...34
Abstract
The externalization of migration management in Europe, a policy based on deterrence and the circumvention of international legal obligations, raises serious concerns as to its conformity with international human rights standards. These concerns become even more urgent in view of their evolved form, as outsourcing States seek to eliminate any physical direct contact that would engage their obligations vis-à-vis migrants.
The Italian-Libyan cooperation in the field of migration control, which forms part of the externalization scheme, will be the case study of this paper, which will attempt to address the question of whether Italy should be found to be exercising extraterritorial jurisdiction for the purposes of article 1 of the European Convention on Human Rights (ECHR) over the victims of gross human rights violations carried out by Libyan authorities, to which the former provides financial and technical support. Jurisdiction, as currently understood under article 1, creates a legal gap, whereby Italy remains unaccountable for violations that it is actually facilitating and the victims thereof remain unprotected. The question that arises is whether the victims of human rights violations, that occur as a result of Italy’s externalizing measures and the concomitant implementation of the Libyan pullbacks, should be found to be within Italy’s extraterritorial jurisdiction for the purposes of article 1 ECHR. Against this background, the paper argues that a broader understanding of article 1 ECHR is necessitated in view of Italy’s evolved externalizing migration policies so as the principles of effectiveness and universality are upheld. Italy’s extraterritorial
jurisdiction should be established on grounds that do not necessarily and exclusively fall within the two traditional models of jurisdiction, that prove inapplicable and rigid in the externalization context, but rather on grounds that practically and effectively address the legal implications that Italy’s conduct has on migrants subjected to Libyan pullbacks. Notwithstanding that this finding would constitute a radical move towards for the ECtHR, this study asserts that the time is ripe to do so.
Section I: Introduction
The Externalization of Migration Management
In view of the ongoing mass flows of migrants1 trying to reach Europe, the EU and its member States are adopting deterrence-based policies that increasingly seek to completely externalize migration management to third countries.2 As a response to the condemnation with which the more direct forms of non-entrée politics3 have been
met,4 the European States have come up with new ‘evolved’ forms of externalizing migration management, whereby, through cooperation agreements with third countries, the latter undertake to carry out the deterrence measures on behalf of the European States5 which provide them with financial and technical support to that end.6 Since the outsourcing States are not physically involved in the deterrence measures, but rather, they are indirectly enabling their materialization, Moreno-Lax has rightly held that they constitute forms of ‘contactless control’7. While outsourcing States invoke humanitarian reasons to justify their hands-off policies,8 what they are actually aiming for is to hinder migrants from reaching their jurisdictional domain that would activate their human rights obligations towards them.
1 For the purposes of this paper, the term ‘migrant’ refers to third country nationals who cross borders irregularly and encompasses migrants, asylum-seekers and refugees.
2 See generally Jean-Pierre Gauci, ‘Back to Old Tricks? Italian Responsibility for Returning People to Libya’ (June 6, 2017), < https://www.ejiltalk.org/back-to-old-tricks-italian-responsibility-for-returning-people-to-libya/>; for a definition of the concept of “Externalization of Migration Controls” see Bill Frelick, Ian Kysel and Jennifer Podkul, ‘The Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants’ (2018) 4(4) Journal on Migration and Human Security, p 193
3 See generally Thomas Gammeltoft-Hansen and James Hathaway, ‘Non-Refoulement in a World of Cooperative Deterrence’, (2014) 53(2) Columbia Journal of Transnational Law, 235-284
4 On the unlawfulness of the pushback practices of Italy and Spain see respectively Hirsi Jamaa and
Others v Italy App no 27765/09 (ECtHR, 23 February 2012), paras 134-135 and N.D. and N.T. v Spain
App no 8675/15 and 8697/15 (ECtHR, 3 October 2017), paras 105,108. See also Gammeltoft-Hansen and Hathaway (n 3), p 246-248
5 See Gammeltoft-Hansen and Hathaway (n 3), p 243; Violeta Moreno-Lax and Mariagiulia Giuffré, ‘The Raise of Consensual Containment: From ‘Contactless Control’ to ‘Contactless Responsibility’ for Forced Migration Flows’ (2017) in S. Juss (ed), Research Handbook on International Refugee Law (Edward Elgar, Forthcoming) <https://ssrn.com/abstract=3009331>, p 15
6 See for instance, the EU-Turkey Statement, 18 March 2016,
<https://www.consilium.europa.eu/en/press/press-releases/2016/03/18/eu-turkey-statement/> and the Italy-Libya Memorandum of Understanding (MoU), 2 February 2017, unofficial translation in English by Sandra Uselli <
http://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf> 7 See Moreno-Lax and Giuffré (n 5)
8 See Parliamentary Assembly of the Council of Europe (PACE), Doc 14575 Report: ‘Human rights impact of the “external dimension” of European Union asylum and migration policy: out of sight, out of rights?’ (13 June 2018), <http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-en.asp?
It has been extensively argued that these practices are taking place in a legal grey zone.9 Outsourcing States rely on contested interpretations of the notion of
‘jurisdiction’ in extraterritorial situations and exploit the legal uncertainties that these controversies generate in order to absolve themselves from the human rights
obligations that are concomitant with a finding of a jurisdictional link.10
This approach to migration management consolidates the prioritization of security-related concerns over human rights protection11 and fails to live up to the calls of solidarity and shared responsibility that supposedly underpin the international protection regime12. As a result, the implementation of these policies raises serious legal concerns in terms of human rights protection, as it will be further explained later on.
The Italian-Libyan Partnership & its Implications for Human Rights protection
This paper will focus on the case study of the Italian-Libyan cooperation in the field of migration management, which forms part of the abovementioned externalization scheme, to examine whether Italy’s responsibility for migrants’ rights violations flowing from that cooperation should be engaged by reason of supporting the deterrence carried out by Libya.
In 2 February 2017, Italy and Libya signed a Memorandum of Understanding (MoU),13 whereby Italy provides support by way of funding, training and equipping and -even at times instructing14- the Libyan authorities, who, in exchange, undertake to stem migrants from reaching Italy by intercepting them and pulling them back to Libya.15 The strengthening of their cooperation, through the adoption of the so-called 9 See for instance Gammeltoft-Hansen and Hathaway (n 3), p 241; Nula Frei and Constantin Hruschka, ‘Circumventing Non-Refoulement or Fighting “Illegal Migration”?’ (23 March 2018),
<https://eumigrationlawblog.eu/circumventing-non-refoulement-or-fighting-illegal-migration/> 10 See Violeta Moreno-Lax, Daniel Ghezelbash and Natalie Klein, ‘Between life, security and rights: Framing the interdiction of ‘boat migrants’ in the Central Mediterranean and Australia’ (2019) 32(4) Leiden Journal of International Law, p 2
11 See Ibid, p 25; Gammeltoft-Hansen and Hathaway (n 3), p 236
12 See, for instance, UN General Assembly, Resolution 71/1: New York Declaration for Refugees and Migrants (A/RES/71/1), 3 Oct 2016,
<https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/ A_RES_71_1.pdf>, paras 8, 11, 68
13 MoU (n 6)
14 This was, arguably, the case as regards the events that took place on 6 November 2017, which the
S.S. and Others v Italy App no 21660/18 (ECtHR, pending) case concerns. For an overview of the case
see present paper Section I(3)
15 For an elaborate overview of the content of the Italian-Libyan partnership see Annick Pijnenburg, ‘From Italian Pushbacks to Libyan Pullbacks: Is Hirsi 2.0 in the Making in Strasbourg?’ (2018) 20(4) European Journal of Migration and Law, p 402-403; Moreno-Lax and Giuffré (n 5), p 8
Libyan pullbacks, came as response to the increased number of migrants crossing the Central Mediterranean, after the closing of the Aegean route because of the EU-Turkey Statement of 18 March 2016.16
What is different with respect to the content of their partnership is that the
interceptions are being carried out by the Libyan rather than the Italian authorities. This new arrangement forms part of the broader migration policies based on externalization and constitute an ‘evolution’ of the Italian pushbacks, which have already been condemned by the European Court of Human Rights (ECtHR) in Hirsi.17 These pullback operations do not serve the humanitarian objectives which they claim to do,18 but, on the contrary, by essentially seeking to keep migrants outside the destination State’s jurisdiction, they have been documented to have deleterious repercussions on migrants’ rights.19 Accordingly, these practices differ essentially from rescue operations in that interceptions constitute a migration control policy that mainly aims at preventing the irregular movement of migrants,20 whereas rescue operations have “predominantly humanitarian character”21. The fact that Italy provides support to Libya with the explicit aim of enabling it to deter migrants from reaching its territory22 clearly reveals that Libya’s practices regarding migrants at sea fall short of what can be defined as rescue operation.
As it has been repeatedly reported by various sources,23 the human rights situation in Libya is extremely worrisome, with migrants being subjected, inter alia, to arbitrary 16 See Moreno-Lax and Giuffré (n 5), p 7-8; Joint Communication to the European Parliament, the European Council and the Council, ‘Migration on the Central Mediterranean route: Managing flows, saving lives’, JOIN(2017) 4 final, p 3
17 See Anna Liguori, Migration Law and the Externalization of Border Controls: European State
Responsibility (1st edition, Routledge, 2019), p 8-9
18 See UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 26 February 2018, A/HRC/37/50, para 56
19 See Amnesty International, Report: ‘Between the devil and the deep blue sea: Europe fails refugees and migrants in the central Mediterranean’ (8 August 2018),
<https://www.amnesty.org/en/documents/eur30/8906/2018/en/>, p 17-21. For an examination on how border externalization compromises the observance of migrants’ rights see Frelick, Kysel and Podkul (n 2), p 196-199
20 For a definition of ‘interception’ see UNHCR Executive Committee, ‘Conclusion on Protection Safeguards in Interception Measures’ No. 97 (LIV), 10 October 2003
21 Barbara Miltner, ‘Irregular Maritime Migration: Refugee Protection Issues in Rescue and Interception’ (2006) 30(1) Fordham International Law Journal, p 82
22 See Moreno-Lax and Giuffré (n 5), p 20. Note that the UNHCR has viewed the support -financial and other- provided from a destination country to a transit country that aims at enabling the latter “to detect, detain and remove persons suspected of having the intention to enter the country of destination in an irregular manner” as an interception practice (UNHCR Executive Committee of the High Commissioner’s programme, ‘Interception of Asylum-seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach’, 18th Meeting of the Standing Committee (EC/50/SC/CPR.17), 9 June 2000, para 13)
detention, torture, inhuman and degrading treatment, and even slavery.24 The Italian-Libyan cooperation raises therefore, serious concerns as to its conformity with international human rights standards, even more so given the absence of any
requirement from Libya that basic human rights will be upheld.25 By facilitating the Libyan pullbacks, Italy’s objective is to achieve deterrence but at the same time avoid liability.26 However, as it will be shown, Italy’s involvement in the commission of migrants’ rights violations flowing from the pullbacks, albeit indirect, has a
significant impact thereon. The problem here lies in that under the ECtHR’s current interpretation of article 1 ECHR, jurisdiction in cases of extraterritorial complicity cannot be established since both its spatial and personal aspects are inapplicable.27 The externalization of migration management seeks to accomplish that very outcome: the circumvention of human rights obligations for the outsourcing States.
Accordingly, this creates a legal gap, whereby Italy remains unaccountable for violations that it is actually facilitating and the victims thereof remain unprotected.28 The question that arises in that context is whether the implementation of externalizing
23 On the human rights situation in Libya see Amnesty International, Report: Italy: refugees and
migrants' rights under attack: Amnesty International submission for the UN Universal Periodic Review, 34th session of the UPR Working Group, 1 March 2019,
https://www.amnesty.org/en/documents/eur30/0237/2019/en/n/>; Amnesty International, Human rights
in Libya: Review of 2018, 26 February 2019,
https://www.amnesty.org/en/documents/mde19/9919/2019/en/>; Amnesty International, Report: Libya:
EU’s patchwork policy has failed to protect the human rights of refugees and migrants, 12 November
2018, https://www.amnesty.org/en/documents/mde19/9391/2018/en/>; Amnesty International, Libya:
European governments complicit in horrific abuse of refugees and migrants, 12 December 2017,
https://www.amnesty.org/en/latest/news/2017/12/libya-european-governments-complicit-in-horrific-abuse-of-refugees-and-migrants/>; Amnesty International, Libya’s Dark Web of Collusion: Abuses
against Europe-bound Refugees and Migrants, 11 December 2017,
www.amnesty.org/en/documents/mde19/7561/2017/en/>; Amnesty International, Report: Seeking
Safety, Finding Fear: Refugee, Asylum-Seekers and Migrants in Libya and Malta, 14 December 2010,
https://www.amnesty.org/en/documents/REG01/004/2010/en/>; Human Rights Watch, Report: No
Escape from Hell, EU Policies Contribute to Abuse of Migrants in Libya, 21 January 2019,
https://www.hrw.org/report/2019/01/21/no-escape-hell/eu-policies-contribute-abuse-migrants-libya>; UN OHCHR/UNSMIL, “Detained and Dehumanised” Report on Human Rights Abuses against Migrants in Libya, 13 December 2016,
<www.ohchr.org/Documents/Countries/LY/DetainedAndDehumanised_en.pdf>
24 See Ibid; PACE (n 8), para 7. Note that these are but the gravest violations taking place in Libya, whereas other ECHR rights are also at stake therein, such as the right to leave, the right to liberty and security, the prohibition of collective expulsion
25 See PACE (n 8), para 21
26 See Gammeltoft-Hansen and Hathaway (n 3), p 243
27 See Miles Jackson, ‘Freeing Soering: The ECHR, State Complicity in Torture and Jurisdiction’ (2016) 27(3) European Journal of International Law, p 820-1
28 On this “unprincipled gap” see Ibid. On the legal gap in human rights protection see Gammeltoft-Hansen and Hathaway (n 3), p 256-7
migration controls should be capable of absolving Italy of its human rights obligations vis-à-vis migrants subjected to Libyan pullbacks.29
Without disregarding that multiple actors may be responsible under international law for violations carried out by Libya,30 the focus of this work is on Italy’s potential responsibility under the ECHR. The reason for that focus is that, from a human rights standpoint, the ECHR is a pioneering instrument in that it affords victims the right to bring claims against Contracting States, meaning that, in the context of
externalization, outsourcing States’ conduct – including Italy’s - is subject to the ECtHR’s competence. This becomes all the more important given that EU
externalizing policies cannot be subject to the ECtHR’s scrutiny because the EU is not party to the ECHR31.
Outline & Aim of the paper
Having made a short description of the European evolved migration policies and having zoomed in the case of the Italian-Libyan partnership, this paper will now focus on the central question of Italy’s extraterritorial jurisdiction over the victims of human rights violations committed by Libya. In order to proceed to that examination, some relevant concepts need to be clarified.
Thus, in Section II, the notion of jurisdiction in human rights law and its
extraterritorial reach in the light of ECtHR’s caselaw will be analyzed. In this context, a brief reference will be made to the pending S.S. v Italy case before the ECtHR that seeks to shed some light on this very issue, i.e. whether the victims of human rights
29 Note that the ECtHR has clarified in T.I. v United Kingdom [admissibility] App no 43844/98 (ECtHR, 7 March 2000), para 435 that “[W]here States establish […] international agreements to pursue cooperation in certain fields of activities, there may be implications for the protection of fundamental rights.”
30 Note, for instance, EU’s support by way of providing training to Libyan authorities under the EUNAVFOR MED Operation Sofia, support in the area of border management under the EUBAM Libya and funds under the EU Emergency Trust Fund for Africa see European Union External Action, Factsheet on EU-Libya relations, Brussels 25 September 2019,
<https://eeas.europa.eu/headquarters/headquarters-homepage_en/19163/EU-Libya%20relations>. On the EU-Libyan relations see Gauci (n 2). On EU’s complicity in human rights violations in Libya see
Human Rights Watch, Report: ‘No Escape from Hell, EU Policies Contribute to Abuse of Migrants in Libya’ (21 January 2019), < https://www.hrw.org/report/2019/01/21/no-escape-hell/eu-policies-contribute-abuse-migrants-libya>
31 Under art 6(2) of the Treaty of Lisbon the accession of the EU to the ECHR has become possible; however, after the Opinion 2/13 pursuant to Article 218(11) TFEU (ECJ, 18 December 2014), the relevant negotiations have ceased. Note also that the European Court of Justice has competence to rule on the conformity of the policies of both the EU Member States and the EU itself with human rights standards as laid down in the Charter of Fundamental Rights of the European Union.
violations resulting from the Libyan pullbacks should be found to be within Italy’s extraterritorial jurisdiction for the purposes of article 1 ECHR.
Accordingly, in Section III, that central jurisdictional question will be addressed. The examination will focus on the contested interpretation of article 1 ECHR and,
particularly, on whether the Hirsi reasoning on Italy’s extraterritorial jurisdiction should evolve in view of Italy’s ‘evolved’ externalizing migration policies. The paper asserts the normative claim that the interpretation of article 1 ECHR should evolve to effectively address the legal implications of Italy’s conduct on migrants’ rights. Four main arguments will be deployed to that end: Firstly, it will be argued that it is the object and purpose of the ECHR that necessitate a broader interpretation of article 1 ECHR. The second argument will focus on the shift that is taking place in terms of establishing jurisdiction: from territorial to functional criteria. Thirdly, the concept of complicity will be deployed as a constitutive element for establishing extraterritorial jurisdiction and the argument will focus on article 16 of the ILC Articles on State Responsibility. The examination will be twofold, namely on whether Italy's conduct falls within article 16’s ambit and on whether a finding of Italy's responsibility therein should be incorporated in the interpretation of article 1 ECHR. Lastly, it will be argued that the jurisdictional link should be established on grounds of Italy’s failure to comply with its due diligence duty to prevent the human rights violations of migrants subjected to Libyan pullbacks.
Section II: The notion of Jurisdiction & its extraterritorial reach
in the Strasbourg system
(1)Jurisdiction in Human Rights Law
As a matter of general international law, jurisdiction refers to a State’s power to prescribe and enforce its laws and it is, primarily, territorially limited,32 whereas under human rights law, jurisdiction refers to the human rights obligations a State has vis-à-vis individuals33 and is a threshold criterion in order for a State to incur responsibility for breaches thereto. In other words, “the exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or
omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention.”34 It follows that the question of jurisdiction is distinct from the question of State Responsibility and should be examined
separately.35
Accordingly, as it will be extensively analyzed in Section II(3)(i), Italy may incur responsibility under the rules on State Responsibility but not under the ECHR unless article 1 is activated.
(2)Extraterritorial Jurisdiction in the light of the ECtHR’s caselaw
Even though the scope of human rights is, in principle, territorial,36 their
extraterritorial reach is inherent in their universal nature, in that “universal hardly suggests an observance parceled off by territory on the checkerboard of geography”37.
Universality in the context of this paper means that the ECHR’s jurisdictional clause
32 On the concept of jurisdiction in general international law see Malcolm Shaw, International Law (8th edition, Cambridge University Press 2017), p 483-522; Maarten Den Heijer, Europe and
Extraterritorial Asylum (Oxford: Hart Publishing, 2012), p 25-28; Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford, 2011), p 23-26
33 On the concept of jurisdiction in human rights law see Milanovic (n 32), p 30-34; Den Heijer (n 32), p 28-32. On the distinction between these two functions of jurisdiction, namely, under general
international law and human rights law, see Milanovic (n 32), p 21-34; Den Heijer (n 32), p 32-35 34 Al-Skeini and Others v United Kingdom App no 55721/07 (ECtHR, 7 July 2011), para 130 35 See Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the
Globalization of Migration Control (Cambridge University Press, 2011), p 146. For a detailed
examination of the distinct notions of ‘State Jurisdiction’ and ‘State Responsibility’ in human rights law see Milanovic (n 32), p 41-53. Note that the ECtHR in Mozer v Moldova and Russia App no 11138/10 (ECtHR, 23 February 2016), para 102 has clarified that “[…] the test for establishing the existence of “jurisdiction” under Article 1 of the Convention has never been equated with the test for establishing a State’s responsibility for an internationally wrongful act under international law.” 36 On the relationship between ‘territoriality’ and ‘sovereignty’ see Milanovic (n 32), p 58-61; Den Heijer (n 32), p 25-28
“[…] should not be interpreted so as to allow a Contracting State to perpetrate violations of the Convention on the territory of another State, which could not
perpetrate on its own territory.”38 Under this definition, universality indicates that the obligation to observe human rights arises whenever it can be shown that it is within the State’s capability to do so, irrespective, therefore, of territorial considerations.39 In fact, the Court has, in a number of cases, confirmed the extraterritorial applicability of ECHR rights,40 which increasingly becomes more essential in view of modern challenges posed by States’ extraterritorial activities. Indeed, the international law trend indicates that States continue to have human rights obligations vis-à-vis individuals outside their territory.41
Pursuant to article 1 ECHR, States must “secure to everyone within their jurisdiction” the rights laid down therein, meaning that ECHR’s jurisdictional clause sets out no strict territorial limitations. Accordingly, the ECtHR has clarified that “a State’s jurisdictional competence under Article 1 is primarily territorial […]. Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in
exceptional cases”42. Hence, such extraterritoriality applies exceptionally,43 and provided that either one or both of the two models of jurisdiction exist, i.e. effective control over territory (spatial) and authority over individuals (personal).44 For the purposes of this study, the Court’s caselaw on the extraterritorial application of the 38 Issa and Others v Turkey App no 31821/96 (ECtHR, 16 November 2004), para 71. A similar approach was adopted by the Human Rights Committee in Lopez Burgos v Uruguay, Saldias de Lopez
(on behalf of Lopez Burgos) v Uruguay, Communication No 52/1979, UN Doc CCPR/C/13/D/52/1979,
IHRL 2796 (UNHRC 1981), 29th July 1981, para 12.3: “[…] it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.”
39 That definition of ‘universality’ is further discussed in Section II(2). On the different uses of ‘universality’ see Milanovic (n 32), p 55-57
40 See, inter alia, Soering v United Kingdom App no 14038/88 (ECtHR, 7 July 1989); Loizidou v
Turkey App no 15318/89 (ECtHR, 18 December 1996); Ilașcu and Others v Moldova and Russia App
no 48787/99 (ECtHR, 8 July 2004); Al-Skeini (n 34); Hirsi (n 4)
41 See, for instance, UN Human Rights Committee, General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004, UN Doc.
CCPR/C/21/Rev.1/Add.13, para 10; Advisory Opinion Concerning Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, ICJ GL No 131, [2004] ICJ Rep 136,
(2004) 43 ILM 1009, ICGJ 203 (ICJ 2004), 9th July 2004, para 109. For a detailed overview of the international caselaw on the extraterritorial application of human rights see Den Heijer (n 32), p 35-55 42 See Al-Skeini (n 34), para 131
43 See, inter alia, Bankovic and Others v Belgium and Others App no 52207/99 (ECtHR, 12 December 2001); Al-Skeini (n 34)
ECHR will not be examined in detail, but rather, the focus will be firstly on the controversies it has generated and secondly on the developments introduced, especially with Hirsi.
Essentially, what the Court is dealing with when faced with the question of extraterritorial application of the ECHR is the need to strike a delicate balance between, on the one hand, adhering to the effective protection of human rights, that dictates a broad understanding of article 1 ECHR, and, on the other hand, preserving its own legitimacy, by being mindful not to impose unrealistic obligations on States.45 The ECtHR’s caselaw on extraterritorial jurisdiction has been subject to extensive criticism due to the absence of a clear delimitation of the scope of article 1 ECHR which leads to a lack of coherent and immutable guidelines for the Contracting States.46 Indeed, since its Loizidou judgment, where the spatial model of jurisdiction was first introduced,47 the Court has followed different approaches to the
interpretation of article 1 ECHR. The most apparent conflict results from the fact that the Court has adopted different thresholds for activating the effective control
requirement. For instance, in its early extraterritorial cases concerning the Turkish occupation of the Northern Cyprus,48 the Court found that Turkey was exercising effective control over Northern Cyprus, irrespective of whether such control was direct,49 and therefore its jurisdiction under article 1 ECHR was engaged. Similarly, in later cases concerning Russia’s support to the Transdniestrian separatist regime,50 the Court held that this support, which amounted to ‘decisive influence’, was enough ground to bring the applicants within Russia’s jurisdiction, notwithstanding that there was no direct or physical link between the applicants and Russia.51 In other words, the
decisive influence reasoning introduces a significantly low threshold for the finding of
effective control and hence jurisdiction.
However, in other cases and, most notably, in Bankovic, the relevant threshold for activating the ECHR’s extraterritorial reach was found to be much higher. In this 45 See Ibid, p 109
46 See, for instance, Marko Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23(1) European Journal of International Law, 121–134; Judge Bonello (n 37), paras 4-8. Also note the remark that Lord Rodger makes in Al-Skeini and Others v Secretary of State Defence [2007] UKHL 26, para 67
47 See Loizidou v Turkey (preliminary objections) App no 15318/89 (ECtHR, 23 March 1995), para 62 48 See, inter alia, Loizidou; Cyprus v Turkey App no 25781/94 (ECtHR, 10 May 2001)
49 See Loizidou (n 47); Cyprus v Turkey (n 48), para 77 50 See, inter alia, Ilașcu (n 40); Mozer (n 35)
highly controversial judgement, the Court, probably driven by policy considerations52 and in an attempt to adhere to the exceptional nature of extraterritorial jurisdiction, advanced to a “superficial and legalistic rationale”53 that prioritized the effectiveness of its own functioning over the effectiveness of human rights protection. In short, the Court’s reasoning focused exclusively on the spatial aspect of jurisdiction and it did so by holding that jurisdiction under article 1 ECHR and under general international law is the same concept54 and by completely disregarding the personal aspect, i.e. the exercise of authority over individuals,55 in fear that there did not seem to be a non-arbitrary way of limiting its scope.56 The espace juridique57 concept is also indicative
of the dominant role that the territorial considerations played in the Court’s reasoning. In its post-Bankovic caselaw, the Court has partly distanced itself from such a
restrictive approach, at least as far as the personal aspect of jurisdiction is concerned. In Issa, Öcalan and Al-Skeini,58 for example, the Court seems to acknowledge that authority over persons amounts to jurisdiction for the purposes of article 1 ECHR,59 albeit in some cases the relevant threshold is still quite blur. Most notably, in
Al-Skeini, even though the exercise of authority over the applicants was found to amount
to UK’s jurisdiction, this could only be so in the light of the UK exercising public powers in Iraq.60 This last pronouncement was probably the Court’s attempt to uphold the exceptional character of extraterritorial jurisdiction61 and to limit the scope of its personal aspect by vaguely conditioning it on the exercise of “public powers”, i.e. the existence of some form of effective control over territory. Also, in Medvedyev, the ECtHR adopted a restrictive understanding of article 1 when it held that France’s jurisdiction was established on grounds of its de facto “full and exclusive control”62 over a Cambodian vessel, which is in conflict with other interpretations of article 1 52 Note that, as Milanovic argues, the Court, deciding in the aftermath of 9/11, was probably unwilling to adopt an expansive interpretation of article 1 ECHR that would render the Court competent to deal with all the potential cases concerning the various extraterritorial activities of the European States: see Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ (n 46), p 123
53 Ibid
54 See Bankovic (n 43), para 59. Cf. Milanovic’s analysis of the term ‘jurisdiction’ disproving that assertion: Milanovic (n 32), p 21-53
55 See Bankovic (n 43), para 75
56 See Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ (n 46), p 123 57 See Bankovic (n 43), para 80
58 Issa (n 38); Öcalan v Turkey App no 46221/99 (ECtHR, 12 May 2005); Al-Skeini (n 34) 59 See respectively paras 71; 91; 136
60 See Al-Skeini (n 34), para 135 61 See Ibid, para 131
ECHR, for instance, in Ilașcu, where, albeit neither full nor exclusive, the effective
control criterion was found to be applicable and therefore engaged Russia’s
jurisdiction.
This brief overview of ECtHR’s caselaw is not exhaustive as to the conflicts it contains, but it reveals the legal uncertainty that surrounds the concept of
extraterritorial jurisdiction. Nevertheless, gradually, the developments in its caselaw indicate a willingness towards evolving the interpretation of article 1 ECHR in order to counterbalance the States’ attempts to circumvent their ECHR obligations.63 This was, after all, what Judge Bonello defined as the Court’sraison d'être, i.e. to ensure
that States’ human rights obligations “are not avoided or evaded”.64 Most importantly, the effective control threshold either over territory or persons, has, increasingly, been seen as unfitted to accommodate modern challenges,65 including the externalization of migration control, as a rigid adherence thereto risks rendering human rights protection under the Convention ineffective.
Particularly indicative of that trend is the Hirsi judgement,66 the ECtHR’s first case concerning migrants’ interception at sea and return to the point of departure. The applicants, 11 Somalian and 13 Eritrean migrants, who were intercepted by the Italian Coastguard in the high seas while trying to reach Italy, were found to be within Italy’s jurisdiction for the purposes of article 1 ECHR because, while onboard the Italian military ships, the migrants had been “under the continuous and exclusive de jure and
de facto jurisdiction of the Italian authorities.”67 The ECtHR found that Italy, by handing them over to Libya, had breached its obligations under the ECHR.
Hirsi was, in many aspects, groundbreaking68 due to its far-reaching implications for the externalization of migration control in Europe.69 In short, the Court confirmed that 63 See Tom De Boer, ‘Closing Legal Black Holes: The Role of Extraterritorial Jurisdiction in Refugee Rights Protection’ (2015) 28(1) Journal of Refugee Studies, Abstract, p 12; Frelick, Kysel and Podkul (n 2), p 197
64 Judge Bonello (n 37), para 16 65 See Den Heijer (n 32), p 51, 61
66 See similarly N.D. and N.T (n 4), where the Court invalidated the Spanish pushbacks at the Moroccan-Spain borders
67 Hirsi (n 4), para 81
68 See generally Marie-Bénédicte Dembour, ‘Interception-at-sea: Illegal as currently practiced – Hirsi and Others v. Italy’ (1 March 2012), < https://strasbourgobservers.com/2012/03/01/interception-at-sea-illegal-as-currently-practiced-hirsi-and-others-v-italy/>
69 For an elaborate examination on this issue see Maarten Den Heijer, ‘Reflections on Refoulement and Collective Expulsion in the Hirsi Case’ (2013) 25(2) International Journal of Refugee Law, 265– 290; Mariagiulia Giuffré, ‘Watered-Down Rights on the High Seas: Hirsi Jamaa and Others v Italy’ (2012) 61(3) International and Comparative Law Quarterly, 728-750; Violeta Moreno-Lax, ‘Hirsi
a State’s ECHR obligations extend when operating on the high seas,70 and cannot be avoided by invoking its international obligations under its agreements with third countries.71 More importantly, the extraterritorial reach of both the principle of
non-refoulement72 and the prohibition of collective expulsion73, was affirmed. In particular, Italy violated article 3 ECHR on account of exposing the migrants to a real risk of being subjected to ill-treatment in Libya and of being arbitrarily repatriated to their countries of origin,74 and, in the absence of any individualized examination of the applicants’ specific circumstances, Italy also breached its obligation under article 4 of Protocol 4. Generally, the Court seems to be open to a more expansive understanding of the extraterritorial applicability of human rights that would prohibit outsourcing States from relinquishing their responsibility thereto.
Following Hirsi, Italy’s ‘evolved’ migration policies, as already described, seek to completely outsource migration control to Libya by introducing pullback practices that essentially serve the same purpose as their predecessor (pushbacks), i.e. the denial of migrants’ access to Italian territory and the evading of the human rights obligations concomitant therewith. Accordingly, what Hirsi left unaddressed is the question of Italy’s jurisdiction in view of its evolved migration policies that do not physically or directly engage Italy, but rather, are conditioned upon its financial and technical support. In that regard, it is worth mentioning that Judge Pinto de
Albuquerque in his separate opinion in Hirsi pointed out that the ECHR continues to apply with respect to “the full range of conceivable immigration and border policies, including […] provision of funds, equipment or staff to immigration-control
operations performed by other States [which] constitute forms of exercise of the State function of border control and a manifestation of State jurisdiction, wherever they take place and whoever carries them out”75.
Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’ (2012) 12(3) Human Rights Law Review, 574–598
70 Hirsi (n 4), para 79 71 Ibid, para 129 72 Ibid, para 131 73 Ibid, para 178 74 Ibid, para 211
(3)The pending S.S. and Others v Italy case
The pending S.S. v Italy case before the ECtHR seeks to shed some light on this very issue and address the legal gap that the Italian-Libyan cooperation generates.76 The central question before the ECtHR is hence whether the victims of human rights violations committed under the Libyan pullbacks should be found to be within Italy’s jurisdiction for the purposes of article 1 ECHR.
In short, the applicants, 16 Niger and 1 Ghanaian nationals, bring claims against Italy on account of the events of 6 November 2017, that unfolded as follows. A migrant boat that had left Libya, found itself in distress on the high seas when it made a distress call to the Italian authorities, who instructed both the Libyan Coastguard and the NGO vessel Sea Watch 3 to approach the scene. What followed was an
uncoordinated operation, the result of which was that 20 people lost their lives, 47 were pulled back to Libya and 59 were rescued by the NGO and were brought to Italy.77 A digital reconstruction of the incident78 reveals that not only did the Libyan authorities hindered the NGO’s rescue efforts, but they also beaten and threatened the captured migrants onboard the Libyan vessel.79 Testimonies of survivors pulled back to Libya reveal the human rights violations suffered by migrants there.80 The claims against Italy concern its role in the materialization of the alleged violations committed by the Libyan authorities either onboard the Libyan vessel or upon return to Libya,81 and they ultimately seek to hold Italy responsible under the ECHR.
The implications of a potential invalidation of these pullbacks would be immense for the broader European migration policies that increasingly rely on externalization. Indeed, as strategic litigation, this case, if condemnatory of the pullbacks, would 76 Note that similar interceptions by the Libyan authorities have occurred that compromise the migrants’ rights, such as the events of 10 May 2017. For an overview see Gauci (n 2); Amnesty International, ‘Italy: Refugees and migrants in the central Mediterranean, cutting the lifelines’ (22 May 2017) < https://www.amnesty.nl/actueel/italy-refugees-and-migrants-in-the-central-mediterranean-cutting-the-lifelines>
77 See Moritz Baumgärtel, ‘High Risk, High Reward: Taking the Question of Italy’s Involvement in Libyan ‘Pullback’ Policies to the European Court of Human Rights’ (14 May 2018),
< https://www.ejiltalk.org/high-risk-high-reward-taking-the-question-of-italys-involvement-in-libyan-pullback-policies-to-the-european-court-of-human-rights/>
78 Forensic Architecture, ‘Sea Watch vs the Libyan Coastguard’ (video), < https://forensic-architecture.org/investigation/seawatch-vs-the-libyan-coastguard#toggle-id-3>
79 See European Council on Refugees and Exiles, ‘Case against Italy before the European Court of Human Rights will raise issue of cooperation with Libyan Coast Guard’ (18 May 2018),
< https://www.ecre.org/case-against-italy-before-the-european-court-of-human-rights-will-raise-issue-of-cooperation-with-libyan-coast-guard/>
80 See Pijnenburg (n 15), p 405
81 Complaints have been raised under articles 2, 3, 4, 13 ECHR and article 4 Protocol 4: see S.S. v
discourage European States from entering into cooperation agreements with third countries that undertake to carry out deterrence measures with the view to absolving European States from their human rights obligations that the arrivals of migrants to their territory would entail. Yet, a condemnation of these practices requires a finding of a jurisdictional link between Italy’s conduct and the victims of human rights violations committed by Libya and such a finding would require a radical step forward for the Court.82
Section III: Towards evolving the understanding of article 1
ECHR: Should the Libyan pullbacks entail Italy’s responsibility
under the ECHR for violations taking place thereunder?
In this Section, the analysis will focus on the central jurisdictional question, i.e. whether the victims of human rights violations resulting from the implementation of Libyan pullbacks should be found to be within Italy’s extraterritorial jurisdiction for the purposes of article 1 ECHR. Four arguments will be deployed to that end, namely, the object & purpose of the ECHR, the functional notion of jurisdiction, the concept of complicity and the due diligence duty.
(1) Object & Purpose of the ECHR
In this first argument for expanding the scope of article 1 ECHR in order to establish Italy’s extraterritorial jurisdiction over victims of human rights violations in Libya, it will be argued that it is the ECHR’s object and purpose that dictate so.
The object and purpose of the ECHR, being a human rights treaty, is the effective protection of the rights enshrined therein,83 and must, according to article 31(1) of the Vienna Convention on the Law of Treaties,84 be taken into account when interpreting the Convention. The caselaw indicates that the ECtHR prefers indeed interpretative techniques that promote the principle of effectiveness, namely, the teleological and evolutive, over the ‘originalist’85. Accordingly, the ECtHR has clarified that “the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”86, and that “the Convention is a living instrument which […] must be interpreted in the light of present-day conditions”87. The living instrument approach suggests that the ECHR evolves over time and, therefore, so does its interpretation by the ECtHR so as to effectively address modern
83 See, for instance, Soering (n 40), para 87. See also Stefan Theil, ‘Is the ‘Living Instrument’ Approach of the European Court of Human Rights Compatible with the ECHR and International Law?’, (2017) 23(3) European Public Law, p 590
84 1969 Vienna Convention on the Law of Treaties (VCLT), 1155 UNTS 331
85 For the content of the ‘originalist’ interpretative approach see generally Theil (n 83), p 592 86 See, for instance, Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979), para 24; Soering (n 40), para 87
87 See, for instance, Tyrer v United Kingdom App no 5856/72 (ECtHR, 25 April 1978), para 31;
developments.88 Effectiveness is, therefore, an underlying principle against which all considerations regarding the interpretation of article 1 ECHR must be appraised. The externalization of migration management in Europe constitutes such a
development. This is exactly where the ECtHR should be able to step in and capture such evolved policies by evolving the scope of article 1 ECHR in order to secure that States do not circumvent their ECHR obligations.89 Effectiveness dictates that States cannot relinquish their ECHR obligations by delegating the migration management to third countries.90
Even though outsourcing States purport to have no connection with the gross human rights violations in third countries, it has been extensively upheld that externalizing migration management has adverse effects on migrants’ rights.91 What is problematic under the current interpretation of article 1 ECHR is that outsourcing States'
jurisdiction cannot be established since neither the spatial nor the personal models are applicable thereto, an outcome which is the very objective of the externalization policies. An evolution in the understanding of article 1 ECHR so as to capture States’ efforts to evade their ECHR obligations, could overcome that legal gap and render the ECHR practical and effective. It would be incompatible with the ECHR’s object and purpose to so interpret article 1 ECHR so as to absolve Italy from its obligations vis-à-vis migrants whose rights are infringed as a result of its cooperation with Libya in the field of migration control.92
The principle of effectiveness becomes even more paramount to Italy’s jurisdictional question given that the migrants’ rights that are at stake are central to the ECHR’s values and ideals.93 Indeed, in Soering the Court found that “it would hardly be compatible with the underlying values of the Convention, […] were a Contracting 88 Note that the ECtHR’s evolutive interpretative has been met with strong criticism that lies in the idea that it, thereby, poses ex post facto further obligations on States, to which they have never consented. On a detailed analysis thereon see Fiona de Londras and Kanstantsin Dzehtsiarou, Great
Debates on the European Convention on Human Rights (Palgrave Great Debates in Law, Macmillan
International Higher Education, 2018), p 71-92; Theil (n 83)
89 See generally Jackson (n 27), p 825; Judge Bonello (n 37), para 16
90 See PACE (n 8), para 38: “[…] Not to assume responsibility would imply that member States can easily escape their obligations under the Convention by simply letting third parties “do the job”. Such an outcome would clearly undermine the effectiveness of the Convention.”
91 See generally Frelick, Kysel and Podkul (n 2), p 196;
92 Note that the ECtHR has similarly stressed in T.I. v UK (n 29), para 435 that “[I]t would be incompatible with the purpose and object of the Convention if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution.”
State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture.”94 It seems therefore, that the fundamental nature of article 3 ECHR was a decisive factor for the finding of a violation thereto. By analogy, it could be reasonably argued that similar considerations would be applicable to our case study, since, pursuant to various sources,95 migrants in Libya suffer grave human rights violations, including torture and slavery, which are of an absolute nature under the ECHR, and, therefore, urgently dictate effective protection.
What is more, Libyan pullbacks have the same essential outcome for migrants as Italian pushbacks had: the unlawful return to a country where they face prohibited treatment.96 In other words, even though Italy is not carrying out the -already
condemned by the ECtHR in Hirsi- interceptions and the subsequent returns itself, it is essentially enabling their materialization.97 It follows that the returns taking place under the current Libyan pullbacks have the direct effect of returning migrants to a place where they face a real risk of being subjected to treatment contrary to the ECHR98 and could, therefore, amount to a breach of the principle of non-refoulement on the part of Italy as it is its conduct that has as a foreseeable consequence the aforementioned breach.99
Consequently, the above analysis strongly suggests that to conclude that the Libyan pullbacks do not engage Italy’s extraterritorial jurisdiction would render the
protection under the ECHR ineffective, notwithstanding the fact that the ECtHR would have to depart from its current understanding of article 1 ECHR, were it to decide otherwise.
94 See Soering (n 40), para 88
95 On the human rights situation in Libya see n 23
96 See Keire Murphy, 'International Protection and Human Rights: Divergence, Protection Gaps, and Their Peril' (2018) 21 Trinity College Law Review, p 373
97 Note that it is argued that the Libyan pullbacks would be impossible without Italy’s support: see Moreno-Lax, Ghezelbash and Klein (n 10), p 9. In that regard, also note that Italy’s support to Libya is conditioned upon the latter effectively deterring migrants from reaching the former’s territory,
indicating a significant degree of control of dependence: see Moreno-Lax and Giuffré (n 5), p 20, 23-24; Daria Davitti and Marlene Fries, ‘Offshore Processing and Complicity in Current EU Migration Policies (Part 2)’ (11 October, 2017), < https://www.ejiltalk.org/offshore-processing-and-complicity-in-current-eu-migration-policies-part-2/>. On the general trend of conditioning capacity building
assistance upon effective migration control on the part of third countries see PACE (n 8), para 41 98 Supporting that Libya does not qualify as a place of safety for migrants see Hirsi (n 4), para 107; the general human rights situation in Libya (n 23); PACE (n 8), para 68
(2) Shifting towards a Functional notion of Jurisdiction
In this chapter, the argument for establishing Italy’s extraterritorial jurisdiction will focus on the shift that is taking place in terms of delimiting the notion of jurisdiction, i.e. from the strictly territorial to functional criteria.100
As a starting point, it should be reiterated that, in contrast with what is defined as jurisdiction in general international law, in human rights law the function of
jurisdiction refers to the human rights obligations a State has vis-à-vis individuals and is a threshold criterion in order for a State to incur responsibility for breaches thereto. The question of jurisdiction is a question of fact, i.e. of actual power over the
individuals in question, rather than a question of a State's de jure competence to prescribe and enforce its national laws.101
Increasingly, it is being argued that territorial considerations should be irrelevant to questions of jurisdiction in the context of human rights law.102 This is so because the traditional notion of spatial jurisdiction proves unfitted to address the challenges of globalization that the various extraterritorial activities of States form part of. Indeed, States in recent years, have more activities which are either physically outside their territory or they are capable of producing effects outside their territory, including measures of externalizing migration management.103 Reasonably, these developments lead to more individuals being adversely affected by these States’ actions104 and hence, a more expansive understanding of the extraterritorial applicability of human rights is necessitated if the ECHR is to remain relevant and effective.
To that end, a functional notion of jurisdiction is recommended in order to overcome the shortcomings that the traditional understanding entails.105 Judge Bonello
pronounced, in its concurring opinion in Al-Skeini, such a response to the challenges of States’ activities abroad, by explicitly holding that “in relation to the Convention obligations, jurisdiction is neither territorial nor extraterritorial: it ought to be functional”106. In particular, he points out that a rigid adherence to the traditional 100 See generally Enrico Milano, ‘The Deterritorialization of International Law’ (2013) 2(3) ESIL Reflections
101 Notwithstanding the confusion that surrounds that distinction (see, for example, that the ECtHR in
Bankovic (para 59) asserted that the two concepts coincide), it is now well accepted that jurisdiction
has distinct functions under human rights law and general international law: see n 33 102 See Den Heijer (n 32), p 51
103 See Davitti and Fries (n 97) 104 See Milanovic (n 32), p 1
105 For a detailed overview of a functional approach to jurisdiction see De Boer (n 63) 106 Judge Bonello (n 37), para 12
notions of jurisdiction leads to absurd results that draw unprincipled distinctions between essentially same violations.107 The effective control requirement that the traditional models of jurisdiction set out, risks creating legal gaps, whereby States, while acting outside their sovereign territories, are absolved from the human rights obligations they would be bound to abide by within their territory, leaving ultimately the individuals, who are adversely affected by their conduct, unprotected.108 Judge Bonello sets out a five-step functional test to define States’ human rights
obligations.109 Basically, what should be decisive is whether it is within the State’s capability to secure human rights.110 Similarly put, what is increasingly relevant to the question of jurisdiction under human rights law is the relationship between the State’s conduct and the alleged violation, rather than the physical control over territory or persons.111
Pursuant to the aforementioned functional test, it could be reasonably held that Italy should be found to be exercising extraterritorial jurisdiction over the migrants pulled back by Libya. This is so because it is asserted that the Libyan pullbacks would be impossible without Italy’s support, meaning that Italy should be seen as having the capability to secure migrants’ rights by reason of exercising sufficient control over the pullbacks.112 That reasoning would close up the legal gap, whereby, even though it is within Italy’s power to ensure the observance of human rights, its jurisdiction cannot be established under the ECHR due to the existing rigid interpretation of article 1 ECHR.
Against this background, mention must be made to the underlying principle behind the need to distance the notion of jurisdiction from territorial considerations, which is
universality. The idea of universality is fundamental in human rights law and it views
rights as being inherent to human beings,113 however, it cannot in itself activate States’ extraterritorial jurisdiction due to the ambiguity attached to its meaning.114 For the purposes of this paper, universality suggests that States have a territorially unlimited 107 See Ibid para 12, 15; Jackson (n 27), p 828
108 See Jackson (n 27), p 821 109 See Judge Bonello (n 37), para 10 110 See Ibid paras 13, 14
111 See De Boer (n 63), p 126 112 See n 97
113 See, for instance, the preamble of the Universal Declaration of Human Rights proclaims the universal nature of human rights
obligation to secure human rights whenever it is within their power to do so. Judge Bonello propounds that the ideals of universality can only be observed by a functional understanding of jurisdiction,115 meaning that a State should be bound “to secure the ‘universal’ observance of human rights whenever and wherever it is within its power to secure them”.116 In the same line of reasoning, Milanovic argues that, at least as far as States’ negative obligations are concerned, these should be territorially
unlimited.117 Accordingly, universality, as defined in that context, points towards a more expansive approach to the human rights’ scope that would secure that Italy has a territorially unlimited obligation not to be complicit in migrants’ rights violations committed in Libya.
It transpires from this analysis, that the interpretation of the notion of jurisdiction in more functional terms would make up for the legal gaps that Italy’s externalizing measures generate as well as would live up to the ideals of universality.
(3) Aiding or Assisting
In this chapter the examination will focus on the element of complicity,118 a situation where a State is not carrying out the internationally wrongful act itself, but it is significantly facilitating another State in its commission.
As already noted, there are signs indicating an evolution in terms of establishing jurisdiction in human rights law, in that the effective control requirement set out by the traditional notions of jurisdiction may be absent therein. Thus, jurisdiction could be found where it can be shown that there is a causal link between a State’s conduct and the abuse, notwithstanding the lack of effective or physical control over territory or persons.119
This is, arguably, the nature of the relationship between Italy’s conduct, i.e. the provision of support to Libya for the stemming of migration flows, and the migrants’ rights violations committed by Libyan authorities, notwithstanding the lack of a direct physical contact therein.120 As it will be explained in this chapter, although Italy’s 115 See Judge Bonello (n 37), paras 9, 16, 17,18
116 Ibid para 16
117 See Milanovic (n 32), p 219
118 On the concept of ‘complicity’ see generally Miles Jackson, Complicity in International Law (Oxford, 2015)
119 See Den Heijer (n 32), p 34-35; PACE (n 8), para 38 120 See generally Moreno-Lax and Giuffré (n 5)
complicity in that context may amount to its responsibility under international law, it is rather controversial whether it could also amount to its jurisdiction under article 1 ECHR.121 Particularly, it will be examined whether Italy’s conduct meets the
requirements in order to incur responsibility under the international rules on State Responsibility and, more importantly for our case study, whether an incorporation of such a finding in the interpretation of article 1 ECHR could be deployed in order to establish Italy’s jurisdiction over the victims of human rights violations committed by Libya. Essentially, what this argument for expanding article 1 ECHR asserts is that Italy’s conduct is significantly contributing to the materialization of human rights violations by Libya in that its provision of funding, training and equipping to Libya enables the exposure of migrants to a real risk of being subjected to treatment contrary to the ECHR, by virtue of the migrants’ returns to Libya.122
(i) Article 16 ARSIWA
Complicity is prohibited under the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA)123 article 16, whereby States are prohibited from aiding or assisting another State in the commission of an internationally
wrongful act provided that two conditions are met. First, the assisting State must act in the knowledge of the wrongful act’s circumstances and second, the act would be internationally wrongful if committed by the assisting State.124
In case of interstate cooperation in the field of migration controls, article 16 ARSIWA is relevant, because the outsourcing States are not carrying out the deterrence
121 On extraterritorial State complicity and the question of jurisdiction under article 1 ECHR see generally Jackson (n 27)
122 See Human Rights Watch, ‘Italy: Navy Support for Libya May Endanger Migrants: Help for Libyan Coast Guard Risks Complicity in Abuse’ (2 August 2017),
https://www.hrw.org/news/2017/08/02/italy-navy-support-libya-may-endanger-migrants>. Note that the PACE (n 8) has urged States “to refrain from externalizing migration control to countries in which […] practice do not meet the standards of the [ECHR]” (in summary)
123 International Law Commission (ILC), Articles on the Responsibility of States for Internationally Wrongful Acts (ASRIWA), [2001] Yearbook of the International Law Commission Vol. II (Part 2), Annex to UNGA Res. 56/83, 12 December 2001, A/56/49 (Vol. I)/Corr.4. Regarding the legal status of the ARSIWA, note that it is not a legally binding instrument under international law -even though the UN General Assembly has long considered the possibility of concluding a Convention on its basis (see UN GA, Sixth Committee – 71st session, ‘Responsibility of States for internationally wrongful acts (Agenda item 74)’, <https://www.un.org/en/ga/sixth/71/resp_of_states.shtml>) - but it, nevertheless, has been viewed as an “authoritative formulation of international law relating to international
responsibility” (André Nollkaemper, Introduction, in Nollkaemper and Plakokefalos (eds), Principles
of Shared Responsibility in International Law: An Appraisal of the State of the Art, (Cambridge
University Press, 2014), p 3), reflective of customary international law (see Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro), 2007 ICJ 43, para 420) 124 ARSIWA, article 2
measures themselves, but instead, they assist other States financially and technically with the view to stemming migrants from reaching their legal jurisdictions, which has been proven to lead to gross human rights violations.125 Such aid should, arguably, be seen as facilitating the commission of these violations by the receiving States and therefore engage the assisting States’ indirect responsibility under article 16
ARSIWA.126 Accordingly, the analysis will now focus on whether Italy's conduct falls within article 16's ambit, by virtue of providing aid to Libya to carry out practices that ultimately lead to the abuses of the migrants' rights.
First, it must be established that the migrants’ rights violations carried out by Libya constitute an internationally wrongful act for the purposes of article 16 ARSIWA. The human rights situation that is known to exist in Libya127 indicates that Libya is
breaching its international obligations, inter alia, under the ICCPR,128 to which it is a party, and customary international law. The abuses of the migrants’ rights include, inter alia, arbitrary detention,129 refoulement,130 ill-treatment and torture,131 slavery132. Second, article 16(b) ARSIWA requires that the act committed by the principal State would be wrongful if committed by the assisting. In other words, “a State cannot do by another what it cannot do by itself”133. Accordingly, it can be reasonably held that the violations committed by Libya, if committed by Italy, would constitute a breach of the latter’s obligations since Italy is a party to the ICCPR as well, meaning that this requirement must be considered fulfilled.For the sake of completeness, it must be 125 See generally Mariagiulia Giuffré, ‘State Responsibility Beyond Borders: What Legal Basis for Italy's Push-backs to Libya?’ (2013) 24(4) International Journal of Refugee Law, 692-734
126 See Den Heijer (n 32), p 100-101 127 See n 23
128 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR)
129 ICCPR, article 9
130 It has been well documented that migrants in Libya risk being arbitrarily returned back to their country of origin: see Hirsi (n 4), para 156-158; Moreno-Lax and Giuffré (n 5), p 25. Libya is hence breaching the principle of non-refoulement as implicitly prohibited under article 7 ICCPR (see UN Human Rights Committee, General Comment 20: Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment), 10 March 1992, UN Doc. HRI/GEN/1/Rev.9 (Vol. I), para 9), and as reflecting customary international law (see 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, para 15)
131 ICCPR, article 7. In addition to the ill-treatment migrants face in Libyan territory, evidence relating to the events of 6th November 2017 reveal that migrants were also being ill-treated onboard the Libyan Coastguard vessel: see Baumgärtel (n 77) and the video reconstructing the events in question (n 78)
132 ICCPR, article 8
133 ILC Commentary to ASRIWA (ASRIWA Commentary), [2001] Yearbook of the International Law Commission Vol. II (Part 2), A/56/10, on article 16, para 6
mentioned that scholars have considered that the requirement under article 16(b) is satisfied even when the two States are breaching the same international obligation which is nevertheless found in different sources.134
Third, if article 16 ARSIWA is to be engaged, it must be shown that Italy’s support to Libya amounts to aid or assistance as understood therein. Initially, it must be noted that in the law of State Responsibility only negative obligations are relevant in order for complicity to come into existence in that States have an obligation to refrain from assisting another State in committing an wrongful act.135 Relevant to our case study is the clarification that the commentary makes, that the obligation not to aid includes also the provision of “material aid to a State that uses the aid to commit human rights violations”136. What matters is whether the assistance provided contributed
significantly to the materialization of the wrongful act137 and whether such contribution was “a necessary element in the wrongful act in absence of which it could not have occurred”138. Regarding Italy’s support to Libya, it is argued that Libya would be unable to perform the pullbacks, at least to the extent they are successful, if it was not for Italy’s support by way of financing, which is explicitly viewed as a form of aid or assistance under article 16,139 training and equipping.140 Italy’s support seeks to ultimately make Libyan Coastguard autonomous, meaning that, at the time being, the latter cannot in itself perform the pullbacks.141 That Italy’s contribution is significant to the pullbacks’ materialization,142 is also confirmed by the fact that the Italian support is given with the explicit aim that Libya deters the migrants, which suggests that this support is conditioned upon the effectiveness of the migration control measures carried out by Libya.143 It follows that Italy’s conduct appears to reach the threshold of aid or assistance laid down in article 16 ARSIWA.
134 See Gammeltoft-Hansen and Hathaway (n 3), p 281 135 See Genocide case (n 123), para 432
136 ARSIWA Commentary (n 133) on article 16, para 9 137 Ibid, para 5
138 Ibid, para 10. This is what Jackson defines as a sine qua non of the principal wrong, noting, however, that, even if this is not the case, the contribution could still be relevant: see Jackson,
Complicity in International Law (n 118), p 45
139 ARSIWA Commentary (n 133) on article 16, para 1 140 See n 97
141 See ibid
142 See generally Amnesty International, Libya: European governments complicit in horrific abuse of
refugees and migrants (n 23)
