Cooperative Contactless Migration Control Measures and the Principle ofNon-Refoulement: the ECtHR case ofS.S. and Othersv ItalyName:

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Master Thesis Public International Law (International and European Law) Date: 1 July 2022

Cooperative Contactless Migration Control Measures and the Principle of Non-Refoulement: the ECtHR case of S.S. and Others v Italy

Name: Sarah McDonnell

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Abstract

In May 2018, an application was filed before the European Court of Human Rights (ECtHR) concerning the responsibility of Italy for its assistance to the Libyan Coastguard (LYCG) in a pull-back operation involving the interception and return of boat migrants in the Mediterranean Sea to Libya. The case, S.S. v Italy is pending before the ECtHR. This thesis discusses the possibility of Italy being found responsible for violating the principle of non-refoulement contained in Article 3 ECHR with respect to its involvement in the pull-back operations. It addressed the question of whether the extraterritorial jurisdiction of Italy under Article 1 ECHR is triggered by its conduct, thereby engaging its responsibility. In this regard, relevant case law concerning Article 1 ECHR and extraterritorial jurisdiction is analysed in order to answer the jurisdiction question. The doctrine of positive obligations and the concept of aid or assistance are analysed in order to answer the responsibility question. The thesis concludes that it is challenging to establish Italy’s jurisdiction on the basis of the existing case law on extraterritorial jurisdiction. Instead, a functional test for jurisdiction is proposed to fill the legal gap. Then the ECtHR could find Italy responsible for breaching its positive obligations of due diligence under Article 3 ECHR.

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Table of Contents

1. Introduction 2

1.1. Background 2

1.2. Research Questions 4

1.3. Methodology 6

1.4. Outline 8

2. State Jurisdiction 9

2.1. The Principle of Non-refoulement and its Extraterritorial Application 9 2.2. The Concept of State Jurisdiction in International Human Rights Law 11

2.3. Jurisprudence of the ECtHR 12

2.3.1. Effective Control 12

2.3.2. Decisive Influence 15

2.3.3. Functional Jurisdiction 19

3. State Responsibility 21

3.1. Positive Obligations 21

3.2. Complicity 21

4. Conclusion 27

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1. Introduction

1.1. Background

The dominant policy response to irregular migration in Europe has been one of control and deterrence.1 A prominent measure employed by European Convention on Human Rights (ECHR) States in this regard have been “pushbacks” which are carried out by destination States and aimed at forcing migrants out of its territory and back to the country of departure without providing access to applicable legal and procedural frameworks.2 Over the years, ECHR States have progressively outsourced migration control to third countries3 in an attempt to avoid incurring responsibility for violating human rights standards that they themselves have committed to.4 In contrast to “push-backs,” these aptly termed “pull-back” measures 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.5 These measures have also been described as

“contactless” in the sense that they are “exercised through remote management techniques”6and are specifically designed to avoid any jurisdictional links by the destination State to the performance of the measure.7 Furthermore, they are “cooperative” as they are performed “in cooperation with a local administration acting as a proxy”.8

The relationship between Italy and Libya represents a prime example of cooperative contactless migration control. In January 2017, a European Commission Communication for Migration on the Central Mediterranean route laid out the goals to both increase training of the

8Moreno-Lax (n 6), 387.

7Gammeltoft-Hansen and Feith Tan (n 1)

6 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, 387.

5Giulia Ciliberto, Libya’s Pull-Backs of Boat Migrants: Can Italy Be Held Accountable for Violations of International Law? (2018) 4(2) Italian Law Journal 489.

4Gammeltoft-Hansen and Feith Tan (n 1)

3Nora Markard, ‘The Right to Leave by Sea: Legal Limits on EU Migration Control by Third Countries’

(2016) 27(3) European Journal of International Law 591.

2‘Pusk-back’ (European Center for Constitutional and Human Rights)

<https://www.ecchr.eu/en/glossary/push-back/> accessed 21 June 2022.

1Thomas Gammeltoft-Hansen and Nikolas Feith Tan, ‘Extraterritorial Migration Control and Deterrence’ in C Costello, M Foster and J McAdam (eds), The Oxford Handbook of International Refugee Law (OUP 2021).

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Libyan Coastguard (LYCG) to autonomously conduct Search and Rescue (SAR) operations in Libyan territorial waters as well as strengthening Libya’s southern border with the Sahara desert to prevent irregular movements through Libya and into Europe.9On 2 February 2017, the Italian Prime Minister and the Head of the Libyan Government of National Accord signed a Memorandum of Understanding (MoU) on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling and on reinforcing the security of borders.10 The Parties to the MoU agree on the need to find a solution to the problem of

“illegal” migration to Italy “in respect of the international obligations and the human rights agreements to which the two Countries are parties”.11 Italy accepts to fund the establishment of

“reception centres” in Libya.12 Italy also provides financial and technical support to various Libyan bodies and institutions, including the border guard and the coast guard of the Ministry of Defence.13

In May 2018, an application was filed before the European Court of Human Rights (ECtHR) 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 Sea to Libya.14 The application was made on behalf of seventeen of the survivors of the incident.15The case, S.S. v Italy which is pending before the ECtHR, concerned a SAR operation performed by the LYCG and the NGO Sea-Watch 3 on the Mediterranean Sea on November 6th 2017.16 A distress message came from a sinking migrant boat carrying around one-hundred-and-fifty passengers and was disseminated by the Italian Maritime Rescue Coordination Centre (MRCC).17 The Applicants allege that the LYCG’s arrival caused a strong water movement

17Ibid.

16Ibid.

15Ibid, para 3.

14S.S. & Others v. Italy, introduced 3 May 2018 (Application No. 21660/18).

13Ibid, Article 1.

12Ibid, Preamble and Article 2.

11Ibid, Premable and Article 5.

10Memorandum 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_finalversion.do c.pdf> accessed 1 March 2022.

9Joint 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.

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which resulted in the death of twenty persons who fell from the boat.18 The Sea Watch tried to conduct rescue operations but were obstructed by the LYCG who were throwing objects, as well as hitting and threatening the migrants with ropes and weapons, without providing life jackets to those who were in the water.19 Fourty-seven migrants were returned to Libya, where several of them faced serious human rights violations, including being detained in inhumane conditions, beaten and sold to a captor who tortured them.20 In terms of Italy’s involvement in the incident, the MRCC communicated with the LYCG before it reached the scene to inform it of the location of the boat in distress.21Furthermore, the vessel used by the LYCG to conduct the operation had been donated by Italy to the LYCG on 15 May, 2017.22 Finally, an Italian navy helicopter was present during the incident.23 While the actual pull-back was carried out by the LYCG, the applicants argue that Italy should be held responsible for human rights violations against them insofar as Italy effectively made it possible for the LYCG to conduct interception measures leading to said violations, including a breach of the principle of non-refoulement under Article 3 ECHR.24

1.2. Research Questions

The general question that this thesis attempts to answer is whether Italy has breached its obligation of non-refoulement as enshrined in Article 3 ECHR through its conduct regarding the Libyan pull-back at issue in S.S v Italy.25

25S.S. & Others v. Italy (n 14).

24Ibid.

23S.S. & Others v. Italy (n 14), para 4.

22Heller and Pezzani (n 20).

21S.S. & Others v. Italy (n 14).

20Charles Heller and Lorenzo Pezzani,‘Mare Clausum: Italy and the EU’s undeclared operation to stem migration across the Mediterranean’ (2018) Forensic Oceanography,

at:<https://content.forensic-architecture.org/wpcontent/uploads/2019/05/2018-05-07-FO-Mare-Clausum-fu ll-EN.pdf>

19Ibid.

18Ibid, para 6.

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In order to answer this question, my research consists of two parts. First, it focuses on the exercise of extraterritorial jurisdiction. This section is guided by the first sub-question which asks:

- Does the Italian involvement in the Libyan pull-back establish Italy’s extraterritorial jurisdiction under Article 1 ECHR?

Second, my research focuses on the responsibility of Italy with respect to the Libyan pull-back.

This part is guided by two further sub-questions:

- Can the Italian involvement in the Libyan pull-back trigger Italy’s responsibility to fulfil its positive obligations?

- Can Italy be held responsible for its complicity with respect to the Libyan pull-back?

1.3. Methodology

This thesis will analyse the alleged facts of the pending S.S. v Italy case and aims to draw some conclusions as to the possible responsibility of Italy under the ECHR for its involvement in the Libyan pull-back. The facts being relied on are contained in the application before the ECtHR as well as those that have been reconstructed and published in a report issued by the University of London, Forensic Oceanography: “Mare Clausum: Italy and the EU’s undeclared operation to stem migration across the Mediterranean”.26S.S. v Italy represents a paradigmatic example of cooperative contactless control measures which have become a common form of migration control in Europe and as such it is the subject of this thesis. This case will represent an important opportunity for the ECtHR to adjudicate on this issue for the first time. Whether the ECtHR decides that Italy incurs responsibility for these events will have important effects on the legitimacy of these measures. In the words of Baumgärtel, a condemnation of these measures by the ECtHR would constitute a “serious blow to border control practices on the Mediterranean”.27

27Moritz Baumgärtel, ‘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)

26Charles Heller and Lorenzo Pezzani,‘Mare Clausum: Italy and the EU’s undeclared operation to stem migration across the Mediterranean’ (2018) Forensic Oceanography,

at:<https://content.forensic-architecture.org/wpcontent/uploads/2019/05/2018-05-07-FO-Mare-Clausum-fu ll-EN.pdf>

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Therefore, the case has the potential of having a major impact on Italian and European migration policies.

In order to achieve this aim, this thesis has primarily adopted the doctrinal legal research method. In answering the first subquestion question of whether the Italian involvement in the Libyan pull-back establishes Italy’s extraterritorial jurisdiction, I convey an overview of the law as it stands with respect to Article 1 ECHR. The relevant doctrine consists of ECtHR decisions where the extraterritorial application of Article 1 ECHR has been at issue as well as scholarly readings thereof. In particular, case law which has applied the notion of “effective control” and the standard of “decisive influence” to instances of extraterritorial exercises of control have been analysed. Arguments used to answer this question are not only based on de lege lata considerations but also on de lege ferenda. Firstly, the standard of “decisive influence” has never been applied to the type of case at hand i.e. concerning contactless control measures. The adaptation of this line of case law to the case at hand therefore blurs the lines between de lege lata and de lege ferenda. Secondly, I argue in favour of the adoption of a “functional” approach to jurisdiction by the ECtHR. I analyse both scholarly readings, in particular the test proposed by Violeta Moreno-Lax,28 as well as the test proposed by Judge Bonello in his separate opinion in the Al-Skeini judgment. The ECtHR has not adopted a functional approach to jurisdiction in its case law, therefore I am espousing the view which proposed to fill a legal gap which exists in the current system. Therefore, in this section I am applying a normative analytical method of research.

I apply a doctrinal legal research method to the question of whether Italy can be held responsible for its involvement with the Libyan pull-back. To answer the second subquestion of whether the Italian involvement in the Libyan pull-back triggered Italy’s responsibility to fulfil its positive obligations, I set out the doctrine on positive obligations with a particular focus on the duty to protect under Article 3 ECHR. I analyse relevant case law and scholarly readings thereof. In order to answer the third subquestion of whether Italy can be held responsible for its complicity with respect to the Libyan pull-back, I convey the law as it stands with respect to

28Moreno-Lax (n 6).

<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/> accessed 13 June 2022.

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Article 16 ILC Articles on State Responsibility (ARSIWA)29 and apply it to the present case example. In doing so, I analyse the relevant ILC’s Commentaries as well as scholarly readings thereof. Due to the fact that the ECtHR does not usually refer to Article 16 ARSIWA in its case law, the arguments here consider both de lege lata as well as de lege ferenda considerations.

1.4. Outline

This introductory Chapter 1 provides background information about migration control in Europe with a focus on the relationship between Italy and Libya. It introduces the case example, S.S. v Italy, on which the legal analysis of this thesis is based before reflecting on the research questions which will be answered as well as on the choice of research methods and the relevant sources used. The following two Chapters constitute the main substantive part – the legal analysis – of the thesis. Chapter 2 focuses on the question of State jurisdiction. First, I present the principle of non-refoulement, the legal basis of this principle in international human rights law and the ECHR system, and its extraterritorial application. Then this Chapter analyses how the concept of jurisdiction is understood by the ECHR and applied by the ECtHR, and most significantly, the possibility of the Court finding Italy’s extraterritorial jurisdiction in the S.S. v Italy case.30 In this regard, I analyse the Court’s case law on the concept of “effective control” as well as the standard of “decisive influence.” It is difficult to establish the jurisdiction in the present case using previous case law of the Court. Therefore, I put forward the argument that jurisdiction under the ECHR should follow a functional approach. Chapter 3 focuses on the speculation of the responsibility of Italy by discussing the possible violation of Italy of its positive obligations. I also discuss the possibility of attributing responsibility to Italy on the basis of complicity and the possible violation of Article 16 ARSIWA. Lastly, in Chapter 4, I conclude my research and present my hypothesis of the Court’s judgment.

30S.S. & Others v. Italy (n 14).

29ILC, ‘Articles on the Responsibility of States for Internationally Wrongful Acts’ (November 2001) UN Doc A/56/49, Article 16 according to which: ‘A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.’

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2. State Jurisdiction

2.1. The Principle of Non-refoulement and its Extraterritorial Application

The applicants in the present case assert that Italy is in breach of the principle of non-refoulement for its involvement in the Libyan pull-backs, in particular for the return of forty-seven migrants to Libya. Therefore, the content and legal basis of the non-refoulement principle under international refugee law and the ECHR merits further discussion.

The principle of non-refoulement has long been recognised as a central principle of international refugee law.31It is the primary obligation that States must fulfil concerning refugees and, without which, the international protection regime would be rendered futile.32The principle, found in Article 33 of the 1950 Refugee Convention (the “Refugee Convention”), explicitly prohibits the expulsion or return of a refugee “in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened”.33Generally, non-refoulement protects individuals from being forcibly removed to a country where they face a risk of ill-treatment.

Beyond the Refugee Convention, the duty of non-refoulement finds expression in various general human rights treaties, as well as in regional refugee and human rights instruments. For instance, Article 3 of the Convention Against Torture (CAT) contains a prohibition of refoulement.34It is implicitly contained in Articles 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR) which prohibits torture or cruel, inhuman or degrading treatment or

34Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT) art 3.

33Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) art 33.

32Mariagiulia Giuffré, ‘Access to Asylum at Sea? Non-refoulement and a Comprehensive Approach to Extraterritorial Human Rights Obligations’ in V Moreno-Lax and E Papastavridis (eds), Boat Refugees' and Migrants at Sea: A Comprehensive Approach Integrating Maritime Security with Human Rights (Brill 2016); “International protection” is defined as “the actions by the international community on the basis of international law, aimed at protecting the fundamental rights of a specific category of persons outside their countries of origin, who lack the national protection of their own countries.” UNHCR Master Glossary of Terms (June 2006)

<https://www.refworld.org.es/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=5d82b8fa4>

accessed 13 June 2022.

31Seunghwan Kim, 'Non-Refoulement and Extraterritorial Jurisdiction: State Sovereignty and Migration Controls at Sea in the European Context' (2017) 30(1) Leiden Journal of International Law 49.

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punishment.35 In any case, it is now recognised that the principle of non-refoulement forms part of customary international law.36 Accordingly, even if a State is not a party to the relevant refugee and human rights treaties, it continues to be bound by the principle.37This thesis focuses in particular on the principle under the ECHR, where it is implicitly reflected in Article 3 prohibiting torture and inhuman and degrading treatment or punishment.38

The Refugee Convention is silent about the extraterritorial application of the duty of non-refoulement.39Hence, States have sought to deny the admission of refugees who have not yet arrived on their territory by asserting that they are not protected by the principle of non-refoulement as long as they are not present within that State’s territory.40This has led early commentators to adopt a strict territorial interpretation.41 Today, however, there is an overwhelming consensus that the non-refoulement principle is applicable wherever States exercise jurisdiction, including areas beyond the territory of the State such as the high seas or foreign territory.42 Scholars and the UNHCR agree that the ordinary meaning of refouler is to drive back, repel, or re-conduct, which does not presuppose a presence in-country,43 thereby supporting the view that the duty of non-refoulement applies wherever State parties exercise jurisdiction regardless of territorial boundaries.44

The ECtHR has affirmed that the principle of non-refoulement affords strong protection in Convention States and it applies extraterritorially. It is clear from the jurisprudence of the

44Moreno-Lax and Giuffré (n 39).

43Ibid.

42UNHCR, ‘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).

41See Nehemiah Robinson, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation—A Commentary (Institute for Jewish Affairs 1953)

40Gammeltoft-Hansen and Feith Tan (n 1).

39Violeta Moreno-Lax and Mariagiulia Giuffré, ‘The Rise of Consensual Containment: From “Contactless Control” to “Contactless Responsibility” for Forced Migration Flows’ in Satvinder Singh Juss (ed),

Research Handbook on International Refugee Law (Edward Elgar 2019).

38Although this article does not explicitly refer to non-refoulement, the ECtHR has, ever since Soering v UK, consistently interpreted the principle to be implied in the article: Soering v. The United Kingdom (1989) ECtHR 14038/88, para 87 and 88.

37Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford University Press, 4th ed, 2021).

36See 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.

35International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 6 and 7.

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ECtHR that in a number of cases, it has confirmed the extraterritorial applicability of Article 3 ECHR when States deal with individuals who risk being subjected to torture or degrading treatment if handed over to the authorities of countries of origin or transit.45 Indeed, it has also explicitly emphasised State’s duty to prevent refoulement from occurring, wherever jurisdiction is exercised.46

2.2. The Concept of Jurisdictions in Public International Law and International Human Rights Law

As a matter of public international law, a state’s jurisdiction is often understood as a core element of sovereignty.47 While ‘sovereignty’ refers to the general legal competence of states,

‘jurisdiction’ refers to particular exercises of sovereignty.48 A state may exercise jurisdiction within its sovereign limits, and is not entitled to encroach upon another state’s sovereignty.49 Since, in the present world, sovereignty is organised along territorial demarcations,50the notion of jurisdiction has therefore traditionally been closely linked to national territory.51 The jurisdiction of a State normally denotes its entitlement to prescribe and enforce its domestic laws.52 By way of explanation, prescriptive jurisdiction refers to the capacity of a State to make decisions or rules.53 Enforcement jurisdiction refers to its capacity to ensure compliance with those rules.54 Although prescriptive jurisdiction may be based on grounds other than territorial considerations,55both types of jurisdiction are ordinarily and essentially territorial.

55Ibid.

54Ibid.

53Den Heijer (n 48).

52Ibid.

51Thomas Gammeltoft-Hansen and James Hathaway ‘Non-Refoulement in a World of Cooperative Deterrence’ (2015) 53(2) Columbia Journal of Transnational Law 235.

50Ibid.

49Ibid.

48Maarten den Heijer, Europe and Extraterritorial Asylum (Hart Publishing 2012).

47Kim (n 31).

46See, Hirsi v Italy (ibid).

45See Medvedyev and Others v France (2010) ECHR 3394/03; Women on Waves and Others v Portugal (2009) ECHR 31276/05; Hirsi Jamaa and Others v. Italy (2012) ECHR 27765/09; Al-Skeini and Others v United Kingdom (2011) ECHR 55721/07; Al-Saadoon and Mufdhi v. United Kingdom (2009) ECHR 61498/08.

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Notwithstanding the integral part formed by human rights treaties in the realm of public international law, the concept of jurisdiction under human rights treaties operates somewhat differently than under treaties governing inter-state relationships.56 Crucially, while treaties entered into under general international law only create rights and duties between states, human rights treaties give rise to interstate obligations as well as one-way obligations owed by a State to a particular set of individuals.57 In the international human rights law regime, the concept of jurisdiction has acquired an obligatory dimension, meaning that Contracting Parties are required to secure fundamental rights to all individuals within their jurisdiction, even if they find themselves outside State territory under certain conditions.58 International human rights bodies interpret jurisdiction as reflecting a factual notion through the exercise of State power or authority, which would therefore be engaged when that authority is exercised de facto, not necessarily de jure.59

2.3. The Concept of Jurisdiction in the ECHR

The concept of jurisdiction in the ECHR is governed by Article 1 ECHR which provides that:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

The jurisdiction of Article 1 ECHR is a threshold criterion. Therefore, the exercise of jurisdiction is a necessary precondition for a State to be able to be held responsible for imputable acts or omissions which give rise to an allegation of the infringement of rights and freedoms set forth in

59Mariagiulia Giuffré, ‘A functional-impact model of jurisdiction: Extraterritoriality before of the European Court of Human Rights’ (2021) 82 QIL Zoom-in 53.

58Cedric Ryngaert, ‘The Concept of Jurisdiction in International Law’ in Research Handbook on

Jurisdiction and Immunities in International Law (Research Handbook on International Law Series, 2015).

57Den Heijer (n 48).

56Bruno Simma, ‘How Distinctive Are Treaties Representing Collective Interest? The Case of Human Rights Treaties’ in Gowlland-Debbas V, Multilateral Treaty-Making (Martinus Nijhoff Publishers, 2000).

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the ECHR.60 Since the phrasing “within their jurisdiction” used in Article 1 ECHR is not geographically limited, the ECtHR has inferred jurisdiction not only from territorial sovereignty.

2.4. Extraterritorial Jurisdiction

2.4.1. Effective Control

The ECtHR has taken a gradual path towards the recognition of the extraterritorial application of the ECHR.61 The Court has so far delivered a significant number of decisions concerning extraterritorial activities of States, however, it has been criticised for lacking a consistent and coherent approach.62 It held in the controversial judgment of Banković v. Belgium in 1999 that human rights protection under Article 1 ECHR is “essentially territorial” and should only be extended beyond territorial jurisdiction in “exceptional cases” that demonstrate “special justification”.63 This restrictive position was loosened a decade later in the Al-Skeini v. United Kingdom judgment in 2011. The Court recognised the need to modify its position to provide for more accountability, given that States exercise human rights jurisdiction beyond their territory in an increasing number of circumstances.64While the Court reaffirmed that jurisdiction under the ECHR is primarily territorial, it will apply extraterritorially where it has effective control over a person65 or effective control over a territory.66 The former grounds for jurisdiction reflects the personal model of jurisdiction while the latter reflects the spatial model.67Furthermore, the Court emphasised that ECHR rights can be “divided and tailored”.68Further, it stated that, determining

68Al-Skeini (n 45), 137.

67Council of Europe, (n 60).

66Al-Skeini (n 45), para. 138.

65Al-Skeini (n 45).

64Gammeltoft-Hansen and Hathaway (n 51), 261 (citing Al-Skeini (n 45)).

63Banković and Others v. Belgium and 16 Other Contracting States ( 2001) ECHR Admissibility 52207/99, 352.

62Anne van Aaken and Iulia Motoc, The European Convention on Human Rights and General International Law (Oxford University Press, 2018).

61Anita Sinha, ‘Transnational Migration Deterrence’ (2022) 63(4) Boston College Law Review 1295

60Council 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

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whether the grounds required to establish extraterritorial jurisdiction are met is appraised on a case-by-case basis “with reference to the particular facts” of the episode under inquiry.69

Soon after the Al-Skeini ruling, the ECHR issued a ruling in the Hirsi-Jamaa case.70This case concerns a prominent example of a push-back measure and provides the opportunity to examine the point of contact between the developing concept of jurisdiction in the ECtHR and the extraterritorial reach of the non-refoulement principle.71 It is a highly relevant case for this thesis as the Court attached responsibility for human rights violations to Italy for its involvement in the interception of a migrant boat on the high seas in cooperation with Libya. The applicants were eleven Somali and thirteen Eritrean migrants who had attempted to reach Italy in a boat of about two-hundred migrants.72Their vessel was intercepted by the Italian police and coast guard who transferred them onto Italian military ships, and later handed them back to Libyan authorities.73 The Court ruled that the violations fell within Italy’s jurisdiction as the events took place entirely on board ships of the Italian armed forces and the crew were composed entirely of Italian military personnel.74 Therefore, the Grand Chamber declared that in the period between boarding the Italian ships and being transferred to the Libyan authorities, the Italian authorities had exercised a “continuous and exclusive de jure and de facto control” over the applicants.75 The two grounds on which the Court declared that Italy had exercised extraterritorial jurisdiction stem from, firstly, the location of the events and, secondly, the nationality of the crew members.76 The Grand Chamber found that the forced return of the migrants without any individual processing a violation, inter alia, of the principle of non-refoulement as enshrined in Article 3 ECHR.77

It first must be noted that in the externalisation of migration control measures, it is necessary to distinguish between push-back measures and pull-back measures.78 As previously

78Ciliberto (n 5).

77Ibid 133, 134–39.

76Ibid.

75Ibid.

74Ibid, 81.

73Ibid.

72Hirsi v. Italy (n 45), 99.

71Kim (n 31).

70Hirsi v. Italy (n 45).

69Al-Skeini (n 45), 132.

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mentioned, the former measure consists of the interception of a boat by a destination State aimed at forcing migrants out of its territory and back to the country of departure. The latter measure entails the interception and return of migrants by the country of departure on behalf of the destination State before they reach their territorial waters.79 There is an important difference between the push-back as seen in the facts of Hirsi compared with the pull-back measures practiced in the S.S. v Italy case. The level of control exercised by the Italian authorities in the Libyan pull-backs is much lower than that exercised in the context of the push-backs examined in the Hirsi judgment. In Hirsi, the Italian authorities were directly and physically involved in the return of the migrants to Libya. The events took place on board Italian ships and the composition of the crew was entirely Italian.80 In the present case, although the vessel used was donated by Italy, the interception and return were performed by the LYCG.81 Moreover, the members of the crew were Libyan.82They are merely providing political, technical, logistical and financial support to the Libyan authorities in conducting the return themselves.83Hence, using the words of the ECtHR, it is likely that the Court would find that Libya exercised a “continuous and exclusive de jure and de facto control” over the retrieved migrants.84 It is unlikely that the Court will determine that Italy had effective control over the vessel as it was under the effective control of Libyan authorities. Neither will the Court determine effective control over the individuals as there was no physical contact between them and the Italian authorities.

2.4.2. Decisive Influence

Several scholars have put forward the use of the “decisive influence” standard in order to establish that Italy exercised extraterritorial jurisdiction in the present case.85This jurisdictional criterion has been developed in case-law by the ECtHR concerning the various ECHR violations

85Moreno-Lax and Giuffré (n 39); Annick Pijnenburg ‘From Italian Pushbacks to Libyan Pullbacks: Is Hirsi 2.0 in the Making in Strasbourg?’ (2018) 20 European Journal of Migration and Law 396 ; Giulia Ciliberto (n 5).

84HIrsi v Italy (n 45), 81; Ciliberto (2018).

83Ibid.

82Ibid.

81S.S. v Italy (n 14).

80Hirsi v Italy (n 45).

79See Section 1.1 ‘Background’; Ciliberto (n 5).

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carried out in the separatist region of the Moldovan Transdniestrian Republic (MRT).86The MRT is a region of Moldova that declared its independence with Russian support in 1991.87However, the international community still continues to recognise it as a part of Moldova’s territory.88 According to the ECtHR in the Ilaşcu case, Russia exercised extraterritorial jurisdiction over the territory for the following four reasons: (i) the MRT was set up with the support of Russia; (ii) the MRT was under the effective control or authority, or “at the very least under the decisive influence” of Russia; (iii) in any event, the MRT survived “by virtue of the military, economic, financial and political support” given to it by Russia; (iv) Russia continued to support and collaborate with MRT beyond the date of the unlawful conduct, and made no attempt “to prevent” nor “to put an end” to the violations.89 For these reasons, the Court considered that the applicants fell within the jurisdiction of Russia for the purposes of Article 1 ECHR as there was

“a continuous and uninterrupted link of responsibility on the part of the Russian Federation for the applicants’ fate”.90 This case law has been interpreted as holding Russia responsible for its own failure to comply with its positive obligations under the ECHR rather than attributing to Russia each of the unlawful conducts performed by MRT actors.91 Therefore, in adapting this line of reasoning to the Libyan pull-backs, it is may be argued that Italy can be held responsible for its failure to comply with its positive obligations under Article 3 ECHR, not as attributing to Italy each of the conducts performed by Libyan authorities.

Setting aside for one moment the factual differences between this line of case law and the Libyan pull-back, it is worth exploring whether these criteria may form the basis to determine the exercise of extraterritorial jurisdiction by Italy in the context of the pull-back at issue.92Firstly, although Italy did not support the setting up of the LYCG, it was barely functional until 2016 due to limited assets, poor equipment and institutional weaknesses because of the First Libyan Civil

92Ciliberto (n 5).

91Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford University Press, 2011).

90Ibid, 393.

89Ibid, 392-393.

88Ibid.

87Ilaşcu (n 86), 1.

86Ilaşcu and Others v. Moldova and Russia (2004) ECHR 48787/99; Ivanţoc and Others v Moldova and Russia (2011) ECHR 23687/05; Catan and others v The Republic of Moldova and Russia (2012) ECHR 43370/04, 8252/05 and 18454/06, Mozer v the Republic of Moldova and Russia (2016) ECHR 11138/10., Sandu and Others v the Republic of Moldova and Russia (2018) ECHR 21034/05.

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War in 2011.93Italy provided fundamental support to the LYCG which reinforced its operational capacity.94 Secondly, while it is clear that the LYCG was under the effective control or authority of the Libyan Ministry of Defence rather than Italy, it may certainly be argued that Italy had exercised “decisive influence” over the Libyan pull-back in light of the circumstances of the pull-backs.95 The presence of the Italian helicopter at the scene, as well as the technical support provided in the form of the communication of the location of the boat in distress both point to the exercise of decisive influence by Italy over the LYCG. Thirdly, it is undeniable that the LYCG survives by virtue of the funding, equipment and training given to it by Italy under the MoU.96 Finally, 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.97 The fulfillment of each of these criteria demonstrate that there is a continuous link of responsibility on the part of Italy which establishes its jurisdiction under Article 1 ECHR.

Due to the fact that it is unlikely that the Libyan pull-backs will fall within the jurisdiction of Italy under the effective control tests of extraterritorial jurisdiction as established in Al-Skeini and applied to interceptions on the high seas in Hirsi, the argument in favour of the adaption of the decisive influence standard to the present case is appealing. Crucially however, as noted by Ciliberto, there are significant differences between the applications stemming from the violations perpetrated within the MRT and the present case.98The most important difference concerns the locations in which the violations took place: the former occurred within the MRT, a territory over which Russia exercised “effective control”, while the Libyan pull-backs occurred on the high seas.99 Another difference is that this line of case-law concerns a self-proclaimed republic, the MRT, rather than a State organ, the LYCG.100 These circumstances may jeopardise the applicability of the “decisive influence” criterion as a means to determine the extraterritorial jurisdiction of Italy with reference to the case at hand.101

101Ciliberto (n 5).

100Pijnenburg (n 85).

99Ibid.

98Ibid.

97Ciliberto (n 5).

96Italy-Libya MoU (n 10).

95Ciliberto (n 5), 527.

94Ibid, 29-33.

93Heller and Pezzani (n 20) 29-33.

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It is clear from the jurisprudence of the Court that the notion of extraterritorial jurisdiction is not sufficiently clear. The ECtHR case law on extraterritorial jurisdiction has been criticised for displaying a “piecemeal approach”.102Instead of adopting one clear definition, the Court tries to tailor the notion of effective control on a case-by-case basis.103 The Court has devised various tests in order to suit different situations- such as the “effective control” tests as well as the “decisive influence” standard. I argue that it is doubtful whether the facts of the present case would satisfy either jurisdictional test. As jurisdiction under Article 1 ECHR is a precondition to holding States responsible, this would lead to a situation where there is a risk that the Court will be unable to establish Italy’s exercise of jurisdiction for its involvement in the present and will allow Italy to evade responsibility.

2.4.3. Functional Jurisdiction

In order to avoid continuing with this piecemeal approach and to ensure that States are held responsible for their involvement in cooperative contactless control measures, several actors, including Strasbourg judges in various separate opinions104 and human rights scholars,105 have proposed a more inclusive and functional approach to jurisdiction. Judge Bonello in his concurring opinion in Al-Skeini criticises the Court’s approach to extraterritorial jurisdiction as being “patch-work case-law at best”.106He instead proposes the adoption of a “functional test” to jurisdiction, which is summarised as follows:

“Jurisdiction means no less and no more than “authority over” and “control of”. In relation to Convention obligations, jurisdiction is neither territorial nor extra-territorial:

it ought to be functional - in the sense that when it is within a State's authority and control whether a breach of human rights is, or is not, committed, whether its

106Al-Skeini (n 45), Concurring Opinion Judge Bonello (n 104), 5.

105Moreno-Lax (n 6); Giuffré (n 59); Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (Cambridge University Press, 2011).

104See Al-Skeini (n 45), Concurring Opinion Judge Bonello.

103Ibid.

102Tom De Boer, ‘Closing Legal Black Holes: The Role of Extraterritorial Jurisdiction in Refugee Rights Protection’ (2013) 28(1) Journal of Refugee Studies 118, 125.

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perpetrators are, or are not, identified and punished, whether the victims of violations are, or are not, compensated, it would be an imposture to claim that, ah yes, that State had authority and control, but, ah no, it had no jurisdiction..107

Some scholars assert that the adoption of a functional test would not deviate too far from previous ECtHR case law.108 De Boer points to several examples from case law since the Court’s divergence from Bankovic.109 For instance, he opines that the “effective control” test applied in Al-Skeini, in particular the effective control over an individual, or the State agent authority, is

“already a functional jurisdiction test in disguise”.110 This is evidenced by the consideration that whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction as well as the “tailor and divide” element both demonstrate a more functional approach to jurisdiction.111 De Boer explains that “the Court shows that if state agents are in a position to safeguard the rights of individuals, [...] the state ipso facto has jurisdiction with regard to the rights it is able to preserve”.112The willingness of the Court to apply a functional approach is also evident in the Hirsi case.113 The Court emphasises that jurisdiction must be determined “with reference to the particular facts” of the case before repeating the crucial divergence from Bankovic that “rights can be divided and tailored.”114Although the Court did not need to rely on this more functional approach as the intercepting vessels were flying the Italian flag, this demonstrates that the Court is willing to accept such an approach if necessary.115

The separate opinions of ECtHR judges, such as Judge Bonello, as well as the divergence from the strict approach to jurisdiction emphasised in Bankovic116 show the intention of the ECtHR to

“close the legal black holes” that States aim to create.117Adopting a functional test to jurisdiction would be favourable to the current approach for a number of reasons. First, this approach would

117de Boer (n 102), 131.

116Bankovic (n 63)

115Ibid; de Boer (n 102).

114Ibid, para 73, 74.

113Hirsi v Italy (n 45)

112Ibid.

111Al-Skeini (n 45) 137.

110Ibid, 129.

109Bankovic (n 63); Ibid.

108De Boer, (n 102)

107Ibid.

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simplify the existing case law on extraterritorial jurisdiction.118 Second, it would align with the object and purpose of the ECHR.119According to the ECtHR:

“the object and purpose of the (European) Convention (on Human Rights) as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective”.120

Finally, it would allow for necessary checks to be taken on state practice in the area of migration control.121 A change from effective control to a functional test is a means of bridging the legal gaps in human rights protection caused by extraterritorial contactless control migration measures.122

Violeta Moreno-Lax, who represents the applicants in the pending case of S.S. v Italy123presents the case as the ECtHR having functional jurisdiction over the extraterritorial acts by Italy causing human rights violations carried out by Libyan authorities.124She argues that the Libyan pull-back at issue in the present case falls within Italy’s jurisdiction under Article 1 ECHR as:

“Instances of ‘contactless control’ by an ECHR party, exercised through remote management techniques and/or in cooperation with a local administration acting as a proxy, may nonetheless amount to effective control and engage Convention obligations – whether it be exercised over persons, territory or specific situations abroad”.125

The functional test asserted by Moreno-Lax consists of three elements. The first factor, the impact element, determines whether the assisting state has “effective control,”126 which is defined as “when [the control] is determinative of the material course of events unlocked by the

126Ibid, 387.

125Ibid, 387.

124Moreno-Lax (n 6).

123S.S. & Others v. Italy (n 14).

122de Boer (n 102).

121Ibid.

120See Soering v. The United Kingdom (1989) ECtHR 14038/88, 87; Al-Saadoon(n 45) 126.

119Ibid.

118Ibid.

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exercise of jurisdiction, even when the relevant activity takes place from a distance”.127 The second factor requires that the assisting state maintained decisive influence over the operation, such as in the form of providing funding and other material support.128 The third factor for determining functional jurisdiction is the operative involvement element which requires the assisting state to maintain overall control.129

This approach would be applicable to the present case in particular because it would eliminate the requirement of direct physical contact with the individuals concerned.130 Applying this approach would no longer sever the possible jurisdictional link that may trigger human rights obligations.131 Such an approach would be more inclusive to jurisdiction, thereby avoiding the difficulties associated with the application of the concept of extraterritorial jurisdiction. If the Court applied a functional test to jurisdiction in the present case, then the jurisdiction of Italy would be established under Article 1 ECHR.

2.5. Concluding Remarks

It is clear from the above analysis that establishing the jurisdiction of Italy poses the greatest challenge to the success of the S.S. v Italy case. The “effective control” test of jurisdiction 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. Although each of the criteria for establishing extraterritorial jurisdiction using “decisive influence” standard were met in the present case, it is doubtful whether the 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. Instead, a functional approach to jurisdiction would inject certainty into the case-law of the ECtHR concerning extraterritorial

131Ibid.

130Ibid.

129Ibid.

128Ibid.

127Ibid, 403.

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jurisdiction. It would also be more inclusive as it would be easier for human rights violations to fall within its scope. Therefore, I submit that the adoption of a functional test would provide the greatest possibility for establishing the extraterritorial jurisdiction of Italy in the present case.

3. State Responsibility

3.1. Positive Obligations

As stated above, the principle of non-refoulement is enshrined in Article 3 ECHR. Article 3 ECHR imposes positive obligations of due diligence which prohibit State parties to engage in conduct that imperils human rights.132 In particular, State parties have a duty to protect, which requires States to take reasonable measures to ensure that individuals within their jurisdiction are not subject to ill-treatment contrary to Article 3 ECHR.133 These measures must be taken if the State had knowledge or ought to have knowledge of a risk of ill-treatment.134Once the State has or ought to have such knowledge, the State must take steps to prevent that risk materialising.135 Den Heijer has explained:

“Decisive, in this regard, for engaging a state’s duty to protect is not the form or manner in which the risk materialises, nor the manner in which the state can negate this risk … but whether the state has taken reasonable and appropriate preventive measures to remove the risk of ill-treatment, or at the least to alleviate that risk to such a level that it is no longer ‘real’ or

‘immediate’”.136

This may lead to the responsibility of a State being engaged in case of an omission to act.

Further, “it is not open to a State party to enter into an agreement with another State which

136Ibid 149.

135Den Heijer (n 48).

134 Osman v the United Kingdom (1998) ECHR 23452/94, Z. a.o. v the United Kingdom (2001) ECHR 29392/95; Kelly a.o. v the United Kingdom (2001) ECHR 30054/96.

133Den Heijer (n 48).

132Moreno-Lax and Giuffré (n 39).

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conflicts with its obligations under the Convention”.137 And “[t]his principle carries all the more force [when] the absolute and fundamental nature of the right not to be subject to…grave and irreversible harm [is at risk]”.138 Italy has knowingly entered into an agreement with Libya, an unsafe country, where risks of both direct and indirect refoulement with regard to both its material and procedural facets, are well-known and verifiable with reliable sources.139 The responsibility of Italy should be triggered as they did not act to prevent or avoid that risk.140 Should the ECtHR decide that Italy’s jurisdiction under Article 1 ECHR has been engaged by its involvement in the Libyan pull-back, then it could rule that Italy is in breach of its positive obligations under Article 3 ECHR.141 Specifically, Italy will be held responsible for failing to prevent the LYCG from intercepting and returning the migrants to Libya. This may be inferred by Italy’s communication of the position of the migrant boat to the LYCG. It may also be held responsible for not attempting to prevent the LYCG from perpetrating the violations during this operation.142

It should be noted that the fact that Libya also has duties in the present case does not mean that Italy cannot be held responsible. This was affirmed by the ECtHR in Al-Skeini and Hirsi when the Court expressly stated that “rights can be ‘divided and tailored’”.143For instance, in Ilascu, the Court held that both Moldova and Russia had exercised jurisdiction.144Russia had decisive influence over the Transnistrian regime and Moldova had de jure sovereignty over the area. Thus, simultaneous yet differentiated human rights responsibility followed.145 The same principle also applies where distinct actions by more than one state cause a common harm. This can be seen in M.S.S. v. Belgium and Greece where the Court found that both Belgium and Greece were in breach of the duty of non-refoulement.146 For its part, Belgium returned the

146M.S.S. v. Belgium and Greece (2011) ECHR 30696/09.

145Ibid.

144Ilaşcu (n 86).

143Al-Skeini (n 45) 137 ; Hirsi v.Italy, (n 45), 74.

142Ciliberto (n 5).

141Ciliberto (n 5); Pijnenburg (n 85).

140Ibid.

139Moreno-Lax and Giuffré (n 39).

138Ibid.

137Al-Saadoon and Mufdhi v. United Kingdom (n 45) 138.

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applicant to Greece, while Greece was itself liable for the failure to establish adequate asylum procedures and to avoid the ill-treatment of those seeking its protection.147

Importantly in the context of contactless migration control measures, State responsibility may even ensue when not all States exercising jurisdiction are bound by the same international legal obligations.148 In Al-Skeini, the United Kingdom shared jurisdiction in Iraq with the United States and other States making up the Coalition Provisional Authority that were not party to the ECHR. Notwithstanding, the United Kingdom was held responsible under Article 2 ECHR for its failure to carry out an adequate and effective investigation into the deaths with respect to the first five applicants.149 Following this reasoning, the fact that a third state cooperating with a State party in carrying out migration control measures is not a party to the ECHR or the Refugee Convention, is no bar to finding the responsibility of the State party.150

However, due to the uncertainty regarding the establishment of jurisdiction, it is worth considering whether finding the responsibility of Italy on the basis of complicity, which does not require the exercise of Italy’s jurisdiction, is possible.

3.2. Complicity

In the present case, the greatest difficulty for the applicants will be convincing the Court that Italy has exercised jurisdiction.151 It is clear from the analysis of the Court’s case law on extraterritorial jurisdiction that determining whether Italy exercises jurisdiction in the context of these cooperative contactless migration control measures is no easy task.

In order to overcome the uncertainty associated with determining Italy’s jurisdiction in the case at hand, it has been proposed by various scholars to refer to the secondary rule of

151Pijnenburg (n 85), 426.

150Gammeltoft-Hansen and Hathaway (n 51).

149Al-Skeini (n 45).

148Gammeltoft-Hansen and Hathaway (n 51).

147Ibid.

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customary international law on complicity expressed in Article 16 ARSIWA.152According to this rule, a State which supports another in committing an internationally wrongful act can be held responsible for this conduct if three requirements are met. First is the material element which requires that the former State aids or assists the latter State. Second is the mental element which requires that the former state acts with the knowledge of the circumstances of the internationally wrongful act. Third is the opposability requirement which demands that the act would be internationally wrongful if committed by the principal State itself.153 The application of this rule to the present case could result in Italy being held responsible for the violation of the principle of non-refoulement contained in Article 3 ECHR, since it aided and assisted the LYCG in returning forty-seven migrants to Libya, a country which systematically violates fundamental human rights of migrants.154

As for the first element, the material element, the ILC’s commentary notes that there is no requirement that the conduct be essential to the performance of the internationally wrongful act, so long as it amounts to a significant contribution thereto.155 In terms of the type of conduct which can be encompassed within the ambit of Article 16 ARSIWA, quite a wide range of actions exist, including the provision of maritime patrol vessels or border control equipment, the sharing of intelligence, or the funding of migration control efforts that assist another country to breach its international obligations.156 In the present case, 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.157 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

157S.S. & Others v. Italy (n 14).

156 Ibid. 150-151; 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, para. 422; Gammeltoft-Hansen and Hathaway (n 51).

155James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text, and Commentaries (Cambridge University Press, 2002) 148.

154Ciliberto (n 5).

153 ILC (n 29).

152Moreno-Lax and Giuffré (n 39).

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that “contributed significantly”to the performance of the interception and return to the country of departure, thereby fulfilling the material element of Article 16 ARSIWA.158

The second element is the mental element, the exact contours of which are not clear. This has resulted in at least three possible interpretations. The first interpretation points to a requirement of intent as the aid or assistance must be given “with a view to facilitate the commission of an internationally wrongful act” by the other State.159 The second interpretation sets a lower threshold of knowledge being sufficient as it requires that although the aiding/assisting State has “knowledge of the circumstances of the internationally wrongful act,”

it still provides support that contributes significantly to the other State’s unlawful conduct.160The third interpretation refers to a State’s “wilful blindness”.161 It is defined as a State consciously turning a blind eye to credible information demonstrating the unlawfulness of the conduct of the State which it is aiding or assisting.162 In this latter interpretation, the aiding or assisting State should have known of the unlawfulness of the conduct it is supporting, but is unaware of it because of a conscious choice made to avoid such knowledge.163 In the present case, the first interpretation requiring intent is difficult to satisfy as it is stated in the MoU that the measures are with the aim of lowering the flow of irregular migration. Thus, there is no evidence to suggest that Italy intended to facilitate the violation of the principle of non-refoulement.164 However, the mental element is satisfied by the application of both the second and third interpretations.165 It is clear that Italy knew (or should have known) of the widespread human rights violations being perpetrated against migrants in Libya.166 This was already at issue in the Hirsi case, where it was argued by Italy that it reasonably considered Libya to be a “safe host

166Ibid.

165Ibid.

164Giulia Ciliberto (2018).

163Ibid.

162Ibid.

161See Miles Jackson, Complicity in International Law (Oxford University Press, 2015), 54, 162; Harriet Moynihan, ‘Aiding And Assisting: The Mental Element Under Article 16 of The International Law

Commission’s Articles On State Responsibility’ (2018) 67 ICLQ 455; Gammeltoft-Hansen and Hathaway (2015), 279-281.

160Crawford (n 153), 66; Moreno-Lax and Giuffré (n 39), 21.

159Crawford, (n 153), 66.; Georg Nolte and Helmut Philipp Aust, ‘Equivocal Helpers—Complicit States, Mixed Messages and International Law’ (2009) 58 ICLQ 1; 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, para. 432

158ILC Commentaries, 66. See Violeta Moreno-Lax and Mariagiulia Giuffré, (2019), 21; Giulia Ciliberto (2018).

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Outline : Conclusion