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1 Universiteit van Amsterdam

Amsterdam Graduate School of Law

THE DUTY OF STATES TO PROTECT THE RIGHT TO LIFE OF MIGRANTS AT SEA

IN THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS:

AN ANALYSIS OF EXTRATERRITORIAL JURISDICTION AS PER RECENT CASE LAW

Name: Alexandra Lorena Franco Acosta E-mail: alexandra.francoac@gmail.com Student number: 13609084

Master track: International and European Law (Public International Law) Supervisor: Mr. Gerrit Jan Pulles

Date of submission: July 1st, 2022

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2 ABSTRACT

States have a duty to provide assistance to persons in distress at sea as per the law of the sea.

The protection afforded by such regime is, however, insufficient for multiple reasons. Most importantly, the law of the sea is developed in an inter-state context, where individuals lack a clear subjective right to be rescued and the possibility to litigate any breaches to the duty imposed by such regime before an adjudicative body. Therefore, the protection afforded to migrants in distress by the law of the sea must be complemented with human rights law, particularly with the right to life. In the context of the Americas, both the American Declaration and the American Convention recognise and protect the right to life.

Applying the right to life in the high seas entails the extraterritorial application of such right.

However, traditional grounds for extraterritorial jurisdiction seem insufficient to argue in favour of such application. Thus, in this thesis novel jurisdictional links are explored by resorting to recent case law on the matter. Specifically, distinct approaches to extraterritorial jurisdiction by the Inter-American Commission, Inter-American Court, European Court of Human Rights and Human Rights Committee are analysed and discussed. Ultimately, this thesis concludes that recent jurisprudential developments allow to suggest that the right to life should apply extraterritorially when States are ‘in a position to prevent loss of life’. In other words, this thesis argues that recent case law allows to suggest that extraterritorial jurisdiction should be established when States have the capacity to protect the right to life at sea, which in itself would entail a case-by-case analysis pondering distinct factual and subjective elements.

Most notably, this thesis argues in favour of a due diligence obligation to prevent loss of life at sea and builds upon what was held by the Human Rights Committee in A.S. et al v Italy (2020) and by the Inter-American Court in the Advisory Opinion on the Environment and Human Rights (2017). It aims to contribute to current scholarly discussions on the extraterritorial application of the right to life, particularly by focusing on the extraterritorial application of the right to life in the high seas.

Key words: Extraterritorial jurisdiction, right to life, migration, human rights, law of the sea, due diligence.

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3 ACKNOWLEDGMENTS

To my parents, who have supported me and my dreams unconditionally.

To my sister, who I have the privilege to call my best friend.

To my friends at UvA, who filled my days at campus with joy and good moments.

To all my professors at the Faculty of Law, who have contributed enormously to the person and lawyer I am today.

To my supervisor, Mr. Gerrit Jan Pulles, who allowed this thesis to be my own work while simultaneously directing me in the right way.

To the Board of the Amsterdam University Fund, who by granting me the AUF Excellence scholarship provided me with the opportunity to study at the University of Amsterdam, thereby allowing me to pursue the Masters of my dreams.

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4 ABBREVIATIONS

American Convention or ACHR American Convention on Human Rights

American Declaration American Declaration on the Rights and Duties of Man

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

HRC or Committee U.N. Human Rights Committee

IACHR or Commission Inter-American Commission on Human Rights

IACtHR Inter-American Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

ICJ International Court of Justice

IOM International Organization for Migration

SAR Search and Rescue

SAR Convention International Convention on Maritime Search and Rescue

SOLAS Convention Convention for the Safety of Life at Sea

UNCLOS United Nations Convention on the Law of the Sea UNHCR United Nations High Commissioner for Refugees

VCLT Vienna Convention on the Law of Treaties

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5 Table of Contents

INTRODUCTION ... 6 I. THE LEGAL GAP PERTAINING THE PROTECTION OF MIGRANTS AT SEA IN THE AMERICAS ... 9

A. Migration by sea in Latin America: A prevalent phenomenon ... 9 B. Relevant State duties vis-à-vis migrants at sea as per international law... 11 C. Human rights duties vis-à-vis migrants at sea as per regional law, particularly relevant Inter-American instruments ... 14 D. Interim conclusions: Insufficient protection of migrants at sea in current international and regional law ... 15 II. THE EXTRATERRITORIAL APPLICATION OF THE RIGHT TO LIFE: AN ANALYSIS ON EXISTING CASE LAW ... 18

A. The concept of jurisdiction and the extraterritorial application of human rights treaties 18

B. Inter-American case law on the extraterritorial application of the American Declaration and the American Convention ... 21 C. Relevant jurisprudence of the European Court of Human Rights pertaining

extraterritorial jurisdiction in the high seas ... 27 D. Authoritative views and General Comments of the U.N. Human Rights Committee on the extraterritorial application of the right to life ... 28 E. Comparative analysis and interim conclusions ... 32 III. THE DUTY OF AMERICAN STATES TO PROTECT THE RIGHT TO LIFE EXTRATERRITORIALLY WITHIN THE INTER-AMERICAN SYSTEM ... 34

A. Discussion on the applicability of the criteria developed by the Human Rights

Committee and the European Court of Human Rights to the Inter-American System ... 34 B. The limits to the duty to protect the right to life extraterritorially ... 39 C. Final considerations: The interaction between the due diligence obligation to protect the right to life and the obligation to render assistance as per law of the sea ... 41 CONCLUSIONS ... 42 BIBLIOGRAPHY ... 43

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6 INTRODUCTION

Human rights abuses, inequality and poverty result in mass flows of migration. In the context of the Americas, Latin America and the Caribbean are currently facing an unprecedented migration crisis.1 Irregular migration flowing from Latin America is fundamentally driven by the search for better employment and economic opportunities, which are even scarcer now in the region as a result of the Covid-19 pandemic.2 Although many migrants attempt to reach neighbouring countries by land, migration by sea has become a prevalent phenomenon.3 On most occasions, this entails undertaking dangerous boat journeys, as vessels are typically overcrowded and poorly-equipped.4 Furthermore, on many instances irregular migration is facilitated by migrant smugglers in very poor conditions. All these factors increase the possibility of capsizing and loss of life at sea. States are, however, sometimes reluctant to participate in search and rescue operations, and every so often even engage in push back policies by pushing vessels carrying migrants away from their jurisdiction (i.e. territorial waters).5 Most importantly, States are often not clear on their duties to protect life at sea. This is primarily a result of unclear State duties vis-à-vis migrants at sea, and particularly a consequence of uncertainty regarding the applicable regime and who is responsible for protecting the life of persons in the high seas.6

This thesis will thus first identify which are the State duties vis-à-vis migrants in distress at sea in the context of the Americas. Particularly, the first Chapter will analyse the extent of the legal protection provided to migrants at sea by international law and regional law. It will be concluded that the current protection provided by the law of the sea and Inter-American instruments is insufficient. Therefore, the core objective of this thesis will be to explore how the protection of migrants at sea in the Americas can be enhanced, particularly by exploring novel ways of establishing jurisdiction in the high seas for the purposes of human rights

1 See World Bank ‘Facing an Unprecedented Migration Crisis in Latin America and the Caribbean’ (2019)

<https://www.worldbank.org/en/news/opinion/2019/03/29/america-latina-y-el-caribe-frente-a-una-crisis- migratoria-sin-precedentes> accessed 22 June 2022

2 CNN, ‘¿De dónde vienen y hacia dónde van los migrantes en América Latina?’ (2021)

<https://cnnespanol.cnn.com/2021/10/26/migrantes-america-latina-vienen-van-orix/> accessed 16 April 2022

3 See Chapter I, Sub-Chapter A on ‘Migration by sea in Latin America’

4 Global Americans, ‘Tragedies at sea: Venezuelan migrants continue to flock to Trinidad and Tobago despite border closure’ (2021) <https://theglobalamericans.org/2021/04/tragedies-at-sea-venezuelan-migrants-continue- to-flock-to-trinidad-and-tobago-despite-border-closure/> accessed April 30, 2022

5 Vassilis P. Tzevelekos and Elena Katselli, ‘Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)?’ (2017) 86 NJIL 427, 428

6 IOM UN Migration ‘Protection of Migrants at sea’ (2018) XII

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7 obligations. In other words, the focus will be on answering how the duty to protect the right to life can apply extraterritorially i.e. in the high seas.

Ergo, the research question is the following:

Can it be argued that the right to life enshrined in the American Convention and the American Declaration applies extraterritorially in the context of migrants in distress at sea?

Whether or not States in the Americas should protect the right to life beyond their territory (i.e. in the high seas) is dependent on the notion of jurisdiction, as jurisdiction is the threshold criterion for the application of human rights treaties.7 Particularly in the context of persons in distress at sea, the relevant question is whether States may exercise extraterritorial jurisdiction in the high seas and thus have a duty to protect the right to life extraterritorially.

Therefore, in Chapter II recent case law on the extraterritorial application of the right to life within the Inter-American System of Human Rights, the European System of Human Rights and the U.N. Human Rights Treaty System will be discussed, analysed and compared.

Lastly, in Chapter III it will be discussed how the criteria laid down so far in regional and international jurisprudence may be applied in the Inter-American System of Human Rights.

Specifically, it will be explored how the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights may consider extraterritorial jurisdiction is established in the context of drowning migrants at sea, in light of recent jurisprudential developments.

Therefore, the research will be conducted by applying the doctrinal research method,8 complemented by the comparative method.9 The justification of resorting to such methods essentially results from the purpose of this research, which is to analyse how extraterritorial jurisdiction has been approached thus far in different systems in order to ultimately advise

7 Samantha Besson, 'The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to' (2012) 25 LJIL 857, 859

8 ‘Doctrine’ can be defined as a synthesis of various rules, principles, norms, interpretive guidelines and values. It follows that doctrinal research is research into the law and legal concepts. Furthermore, legal doctrinal research draws on the legal system as the main supplier of concepts, categories and criteria. This method is thus different from research that studies law by resorting to concepts, categories and criteria that are not primarily legal (i.e. historical studies, socio-legal research and others). See Terry Hutchinson and Nigel Duncan, 'Defining and Describing What We Do: Doctrinal Legal Research' (2012) 17 DLR 83, 84-85, 114-115

9 In legal research, ‘comparing’ may be considered a method in its own and called the comparative method. The comparative method can entail the comparison of rules from different systems, but also the analysis and comparison of judicial decisions and the way legal problems are solved in practice. This thesis will engage in the latter. See Mark Van Hoecke ‘Methodology of Comparative Legal Research’ (2015) Law and Method 1-11

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8 and discuss how the right to life can apply extraterritorially in the context of persons in distress at sea in the Inter-American System. Thus, resorting to the case law of the European Court of Human Rights and the Human Rights Committee, as well as the IACtHR and IACHR, will allow to compare different approaches to extraterritorial jurisdiction and to engage in a rich analysis on the extraterritorial application of the right to life, to ultimately provide a proposal for the Inter-American System that builds on contemporary discussions and novel jurisprudential developments.

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9 I. THE LEGAL GAP PERTAINING THE PROTECTION OF MIGRANTS

AT SEA IN THE AMERICAS

A. Migration by sea in Latin America: A prevalent phenomenon

Migration has substantially increased in Latin America in the past years due to economic uncertainty, security problems and political crises. Migrants in the region are principally from Venezuela, Haiti, Cuba and Brazil.10 Migration from these countries is fundamentally driven by the search for better employment and economic opportunities,11 which are even scarcer now in the region as a result of the Covid-19 pandemic.12 Central America and the Caribbean have also experienced large displacements of people as a result of recent natural disasters.13 Of special concern is the Venezuelan crisis, which has resulted in the largest exodus in Latin America’s recent history.14 Since president Nicolás Maduro took power in 2013, political turmoil and poor economic and humanitarian conditions have forced millions of Venezuelans to leave the country. As of January 2022, more than six million Venezuelans have had to leave their country.15 Although Venezuelans mainly migrate to neighbouring South American States (e.g. Colombia), many also flee to the Caribbean by sea.

According to a joint IOM-UNHCR press release from 2021, at least 200,000 Venezuelan refugees and migrants are in the Caribbean region. Given Trinidad and Tobago’s proximity to the north-eastern coast of Venezuela, thousands of migrants attempt to go from Venezuela to Trinidad by sea.16 Doing so implies undertaking dangerous boat journeys, as most Venezuelans attempt to get to Trinidad via fishing boats, which are unfit for the journey and almost always overloaded.17 Furthermore, while the voyage to Trinidad should be relatively short, the actual journey takes days as a consequence of smugglers avoiding the Trinidadian coast guards.18 In 2019, it was reported that at least 21 Venezuelan migrants were missing, after the vessel they were travelling in capsized on its way to Trinidad.19 Two years later, in

10 CNN, ¿De dónde vienen y hacia dónde van los migrantes en América Latina? (2021)

<https://cnnespanol.cnn.com/2021/10/26/migrantes-america-latina-vienen-van-orix/> accessed April 30, 2022

11 ibid.

12 ibid.

13 ibid.

14 IOM, ‘Venezuelan refugee and migrant crisis’ (2022) <https://www.iom.int/venezuelan-refugee-and-migrant- crisis> accessed April 30, 2022

15 ibid.

16 Global Americans (n3)

17 ibid.

18 ibid.

19 BBC News, ‘Venezuelan migrants missing in shipwreck off Trinidad and Tobago’ (2019)

<https://www.bbc.com/news/world-latin-america-48069733> accessed April 30, 2022

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10 2021, a boat with 25 Venezuelans capsized on the high seas, resulting in (at least) two persons losing their life.20

As in the case of Venezuelans, the number of Haitians who have tried by migrate to neighbouring countries by sea has also increased substantially in the past years.21 Although migration from Haiti has been prevalent now for decades, migration has substantially increased in recent years as a consequence of the worsening security situation and recent natural disasters. Specifically, two earthquakes in 2010 and 2021 left millions of Haitians homeless, whilst Hurricane Mathew (2016) left thousands displaced.22 Haitians have thus been forced to migrate, many of whom have tried to reach the Bahamas, the Turks and Caicos Islands or the United States by sea.23 Between 2017 and 2018 the United States Coast Guard intercepted 2,727 migrants from Haiti, who were using precarious and overloaded boats on the coasts of Florida, the Caribbean Sea and the Atlantic.24 In 2013, at least 30 Haitians trying to reach the United States drowned after their overloaded boat capsized.25 In 2019, it was reported that at least 28 Haitians drowned attempting to reach the Bahamas.26

As it can be seen, migration by sea is a widespread phenomenon in the region that is especially problematic from a human rights perspective as it implies that hundreds of persons recurrently risk or lose their lives. Unfortunately, a collective failure to rescue migrants at sea has become a serious problem not only in the Americas but around the world, and raises a number of legal questions. In this respect, the core question is: What protection is actually provided by law to these persons? In other words, what are the international and regional State duties vis-à-vis migrants at sea? In this vein, the following sub-chapters (B and C) will analyse the current protection afforded to migrants by international and regional law. Interim

20 UN ‘Deadly shipwreck off Venezuela underscores need for safe migration pathways, protection’ (2021)

<https://news.un.org/en/story/2021/04/1090582> accessed April 30, 2022

21 UN ‘Waves of Haitians risk perilous sea journey to seek better life’ (2021) <https://haiti.un.org/en/165686- waves-haitians-risk-perilous-sea-journey-seek-better-life> accessed April 30, 2022

22 Caitlyn Yates, ‘Haitian Migration through the Americas: A Decade in the Making’ (2021)

<https://www.migrationpolicy.org/article/haitian-migration-through-americas> accessed April 30, 2022

23 UN ‘Oleadas de haitianos se aventuran en traicioneras travesías marítimas en busca de una vida major’ (2021)

<https://news.un.org/es/story/2021/12/1501592> accessed April 30, 2022

24 María de Jesús Bonnier ‘EE. UU. intercepta a 146 migrantes haitianos en el mar Caribe’ El Ciudadano (2019)

<https://www.elciudadano.com/latinoamerica/ee-uu-intercepta-a-146-migrantes-haitianos-en-el-mar- caribe/08/14/> accessed April 30, 2022

25 Frances Robles ‘At Least 30 Haitians Die After Boat Capsizes’ The New York Times (2013)

<https://www.nytimes.com/2013/11/27/us/10-haitians-dead-after-boat-capsizes-off-bahamas.html> accessed April 30, 2022

26 Haitian Times ‘In a tragedy at sea, at least 28 Haitians are dead in the Bahamas’ (2019)

<https://haitiantimes.com/2019/02/04/in-a-tragedy-at-sea-at-least-28-haitians-are-dead-in-the-bahamas/>

accessed April 30, 2022

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11 conclusions on the scope of the protection provided by international and Inter-American law will then be provided in sub-chapter D.

B. Relevant State duties vis-à-vis migrants at sea as per international law

Migrants are granted protection by several fields of international law, such as the law of the sea, refugee law, transnational criminal law, humanitarian law, labour law and human rights law.27 For the purposes of this research, which focuses on the protection of life at sea, the most relevant regimes are human rights law and the law of the sea. This thesis will thus not discuss protection afforded by other fields of international law, insofar as this would surpass the scope of this research.

As per the law of the sea, States have the duty to render assistance to persons in distress at sea.28 Under Article 98 of UNCLOS the duty-bearers are flag States and coastal States.

Specifically, as per Article 98(1) of UNCLOS every state shall require the master of a ship flying its flag to render assistance to persons found at sea in danger of being lost and to proceed with all possible speed to the rescue of persons in distress. The vessel can belong to the State or to a private party, and the duty applies in all maritime zones.29 Importantly, as per Article 98(1) of UNCLOS, the flag State’s duty to provide assistance to persons in distress at sea is limited, as assistance should only be provided ‘insofar as such action may reasonably be expected’ and insofar it can be done ‘without serious danger to the ship, the crew or the passengers.’30 Thus, the wording of Article 98(1) arguably allows shipmasters to decide, based on their subjective judgment, whether or not to provide assistance.31

It is important to note that in the Americas the United States, Venezuela and Peru have not ratified UNCLOS.32 However, these countries remain obliged to provide assistance to persons in distress at sea as per customary international law. This is because the duty of states

27 Migration Data Portal ‘Migrants rights’ (2022) <https://www.migrationdataportal.org/themes/migrant-rights>

accessed 13 June 2022

28 Whether or not these duties are human rights duties is unclear, insofar as it remains contested whether the law of the sea provides for a human right ‘to be rescued.’ See Sub-Chapter D.

29 Irini Papanicolopulu ‘The duty to rescue at sea, in peacetime and in war: A general overview’ (2016) IRRC 491, 495

30 Article 98(1) UNCLOS.

31 Aphrodite Papachristodoulou ‘The recognition of a right to be rescued at sea in international law’ (2022) LJIL 337, 348

32 UN ‘Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements’ (2021) <https://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm>

accessed 30 April 2022

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12 to rescue and render assistance to persons in danger at sea is not only found in UNCLOS, but is also a well-established principle of customary international law.33

Furthermore, Article 98(2) establishes the duty of coastal States to establish, operate and maintain search and rescue services, and to cooperate with neighbouring States if necessary.34 One of the main issues pertaining the duty to provide search and rescue services has been the identification of which State must provide such assistance. On many occasions States have disagreed on who bears such responsibility.35 An attempt to solve this problem has been the establishment of search and rescue regions (SAR regions), as per Chapter 2 of the SAR Convention. Under the SAR Convention, Parties are encouraged to enter into SAR agreements with neighbouring States involving the establishment of SAR regions,36 which typically cover their coastal waters and portions of the high seas. Therefore, the SAR Convention complements UNCLOS, as SAR agreements seek to operationally implement the obligation set out in Article 98(2) of UNCLOS.37

Thus, unlike maritime zones that are determined by law, SAR regions are established by agreement between parties.38 This has sometimes resulted problematic for ensuring the safety of life at sea, as some unwilling coastal States evade responsibility by failing to agree on a SAR area.39 Furthermore, unwilling States may justify inaction by ships flying their flag, even when such ships are closest to persons in distress at sea (and thus in the best position to provide assistance) by arguing that only the State responsible for the SAR region where the persons are located should provide rescue services. This was in fact argued by the Italian State in the case A.S. et al v Italy (2020).40

Lastly, in the SOLAS Convention it is established that ‘the master of a ship at sea which is in a position to be able to provide assistance, on receiving a signal from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance (…).’41 It is important to note, however, that the SOLAS Convention provides for certain exceptions to the duty to rescue life at sea, mainly if the ship receiving the alert is ‘unable or, in the special

33 Irini Papanicolopulu (n29) 494-495

34 Article 98(2) UNCLOS.

35 Irini Papanicolopulu (n29) 499

36 Article 2.1.4 SAR Convention

37 Seline Trevisanut ‘Recognizing the Right to be Rescued at Sea’ (2017) 31 OYB 139, 142

38 IOM UN Migration (n6) 76

39 UNHCR, ‘Refugees and Asylum-Seekers in Distress at Sea – how best to respond?’ (2011) 3

40 A.S. et al v Italy (2020) Selected Decisions of the Human Rights Committee, para 4.4

41 Regulation 33.1 SOLAS Convention.

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13 circumstances of the case, considers it unreasonable or unnecessary to proceed to [their]

assistance.’42 These exceptions are evidently problematic as they provide grounds to justify not rendering assistance to persons in distress at sea.

Pertaining international human rights law, to date there is no specific international instrument on migrants’ rights at sea, nor an international instrument recognising a ‘right to be rescued’

at sea.43 This has not, however, withheld some human rights courts and adjudicative bodies from settling cases pertaining loss of life at sea. For example, although the ICCPR does not expressly recognise a ‘right to be rescued’, this has not withheld the Human Rights Committee from settling cases on the matter by resorting to the right to life.44 However, resorting to the right to life when migrants drown en masse has sometimes proven impossible due to a lack of jurisdiction, which is essential to make a connection between the State as a duty bearer and the migrants as the right-holders.45

Jurisdiction is the threshold criterion for the application of human rights treaties both within and outside state parties’ territories.46 In other words, jurisdiction conditions the application of human rights to the existence of a certain relationship between the right-holders and the state parties.47 Thus, jurisdiction is a conditio sine qua non for an individual to have human rights enforceable against a State and for a State to have obligations towards that individual.48As the ECtHR determined in Al-Skeini (2007):

Jurisdiction (…) is a threshold criterion. 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.49

The jurisdictional limitations of human rights treaties entail that death can be preventable by a certain state and still not result in a human rights violation by that State, as long as no jurisdiction is established. In other words, in many cases it is not possible to establish

42 ibid.

43 Aphrodite Papachristodoulou (n31) 338

44 In particular, A.S. et al v Malta (2020) and A.S. et al v Italy (2020).

45 Itamar Mann, ‘The Right to Perform Rescue at Sea: Jurisprudence and Drowning’ (2020) GLJ 598, 603

46 Samantha Besson (n7) 859

47 ibid 860.

48 Mariagiulia Giuffré, ‘A functional-impact model of jurisdiction: Extraterritoriality before of the European Court of Human Rights’ (2021) QIL 53, 54

49 Al-Skeini v. United Kingdom, App no. 55721/07 (ECtHR, 7 July 2011) para 130

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14 accountability in terms of a correspondence between the right to life and a state duty.50 Such are the cases when a migrant boat in distress is not in the territory of a State (i.e. territorial waters) and does not come under de facto control of an actor bound by human rights law. For this reason, to date the right to life has been largely ineffective in establishing accountability for migrants deaths by drowning.51

C. Human rights duties vis-à-vis migrants at sea as per regional law, particularly relevant Inter-American instruments

Within the Inter-American system, several human rights treaties have been adopted, such as the American Convention.52 A non-binding instrument that further recognizes human rights is the American Declaration. However, no binding instrument on migrant’s specific rights at sea or migrant’s protection at sea has been adopted in the context of the Inter-American System to date, although many of the treaties do touch upon issues and recognise rights that are relevant in the context of forced migration (e.g. the right to asylum in the American Convention).

Two comments are in order in this respect. First, the absence of a binding instrument on migrant’s rights at sea and the lack of a ‘right to be rescued’ is not exceptional of the Inter- American System, as there is also no particular instrument on migrant’s rights at sea at an international level (as noted above). Second, in 2019 the IACHR adopted the Inter-American Principles on the Human Rights of All Migrants, Refugees, Stateless Persons, and Victims of Human Trafficking (i.e. Resolution 4/19). Although not binding, the Resolution enhances the protection of migrants at sea in the Americas by developing general principles for public policy concerning migrants and refugees.53 Important for the purposes of this research are Principles 1 and 47. Principle 1 states that every migrant has the inherent right to life, complementing Article 1 of the American Declaration and Article 4 of the American Convention, both of which enshrine the right to life. Furthermore, Principle 47 establishes that States must provide immediate assistance to all migrants who need it, as well as guarantee effective protection and access to justice. Notably, Principle 47 establishes that assistance and protection must be provided to all migrants at the border and points of entry

50 Mariagiulia Giuffré (n48) 54

51 ibid

52 OAS, ‘Inter-American treaties adopted within the framework of the OAS’ (2022)

<https://www.oas.org/DIL/treaties_subject.htm>accessed April 23, 2022

53 OAS, ‘IACHR Adopts Inter-American Principles on the Human Rights of All Migrants, Refugees, Stateless Persons, and Victims of Human Trafficking’ (2019)

<https://www.oas.org/en/iachr/media_center/PReleases/2019/345.asp> accessed April 23, 2022

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15 into the territory, but also to all migrants ‘at or in the vicinity of rescue and interception areas and at points of entry and disembarkation.’54

D. Interim conclusions: Insufficient protection of migrants at sea in current international and regional law

The previous overview of both conventional regional and international law in force reveals the limits of the current norms protecting life at sea. With respect to regional law, although the adoption of Resolution 4/19 should be welcomed as it constitutes the first attempt to enhance the protection of migrants within the Inter-American System, it must nonetheless be emphasised that these principles are non-binding. Most importantly, these principles unsatisfactorily protect migrants at sea, as they do not actually provide for a right to be rescued at sea. It must also be noted that Principle 47 limits the obligation to provide assistance and protection to migrants at borders, points of entry or in the vicinity of points of entry or disembarkation, but provides no express duty vis-a-vis migrants on the high seas.

Ergo, it must be concluded that, in the current state of affairs, the Inter-American System fails to adequately address the problem of maritime migration in the region and to effectively provide protection to migrants in distress at sea.

As for international law, it has been explained that the law of the sea establishes the obligation of a ship’s captain to render assistance to people in distress at sea and of States to coordinate and cooperate search and rescue operations. However, in many ways the law of the sea is unfit to comprehensively protect the lives of migrants in distress at sea. This primarily results from the law of the sea being developed in an inter-state context and being conceived in the late 19th century and beginning of the 20th century, thus not foreseeing the current phenomenon of large-scale migration nor the human rights developments of the 21st century.55 Furthermore, even though the law of the sea is a longstanding body of international law, confusion in its interpretation and gaps in its application mean that lives are still lost at sea.56

For example, the UNHCR has determined that States that are unwilling to ensure the safety of life at sea adopt restrictive definitions of what constitutes a ‘distress situation’, which in turn results in lack of timely assistance.57 This is worsened by the fact that SAR areas are based on inter-state agreements and declarations, and not by law (like maritime areas are). Therefore,

54 Resolution 4/19, IACHR (2019) Principle 47

55 IOM UN Migration (n6) 72

56 ibid XI

57 UNHCR (n39) 3

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16 unwilling states can easily avoid their responsibilities under the SAR and SOLAS Conventions by failing to agree on a SAR area.58 Furthermore, even when such SAR area exists, it may be that unwilling SAR States argue that persons in such SAR areas are not under their jurisdiction (because SAR areas are not part of the territory of States) and thus that no rescue obligation arises. In fact, this was precisely what Malta argued in A.S. et al v Malta (2020) before the Human Rights Committee, arguing that because the shipwreck did not occur in its territorial waters, but rather in the high seas, there was no jurisdictional link (regardless of the fact that the incident occurred in the Maltese SAR area).59

Furthermore, in the case of persons in distress in an area of the high seas not encompassed by a SAR region, it is unclear whether the State that receives the distress call has an obligation to ensure that a SAR operation is conducted.60 This is because UNCLOS does not expressly oblige coastal States to directly conduct SAR services. In other words, States may not only be unwilling to provide SAR services, but often times simply do not have clarity on who bears the responsibility of providing such services.

Most importantly, the law of the sea was developed in the context of inter-State obligations and primarily allocates competences among States. Thus, whether it provides for a ‘right to be rescued’ is unclear. Legal scholar Seline Trevisanut has argued that the recognition of a right to be rescued at sea may be understood to flow from jurisprudential developments of the law of the sea in conjunction with human rights law.61 Similarly, Aphrodite Papachristodoulou has recently argued that a ‘right to be rescued’ could be interpreted as

‘emanating from the normative contours of the law of the sea and the international human rights law framework taken together.’62 In other words, the law of the sea in itself, without being complemented by human rights law, fails to recognise a right to be rescued.

Additionally, and in connection with the above, breaches of the duty to render assistance under UNCLOS cannot be litigated by individuals on an international level, as the dispute settlement mechanism provided for in UNCLOS envisages almost exclusively inter-state disputes.63 They can also not be litigated on a regional level, as the Inter-American Commission and Court lack jurisdiction ratione materiae with respect to breaches to the duty

58 ibid.

59 AS et al v Malta (2020) Selected Decisions of the Human Rights Committee, para 4.3

60 Seline Trevisanut (n37) 151

61 ibid, 154

62 Aphrodite Papachristodoulou (n31) 338

63 See Irini Papanicolopulu (n29) 513

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17 imposed by the law of the sea.64 In other words, the protection afforded by the law of the sea is undeniably insufficient as no ‘right to be rescued’ is recognised and violations to the duty to rescue contained therein cannot be brought before international or regional tribunals.

On the other hand, while human rights law clearly provides for the right to life and does envisage migrants as rights holders with the possibility to enforce such right and bring violations before an adjudicative body (whether on an international or regional level), the problem remains that thus far the right to life has been ineffective in establishing accountability for migrants deaths in light of jurisdictional limitations. This has led Aphrodite Papachristodoulou to refer to ‘jurisdiction’ as the “Achilles heel” of human rights applicability at sea.65

In conclusion, migrants outside SAR areas and in the high seas (outside the jurisdiction of States) are situated in ‘maritime legal black holes’, where they are de jure rightless.66 In other words, on the basis of current Inter-American and law of the sea norms the lives of migrants at sea are insufficiently protected. Because of this, the protection afforded by the law of the sea and Resolution 4/19 should be complemented with human rights law.

Particularly, the duty to render assistance as per the law of the sea should be complemented with the duty to protect the right to life. This is because unlike breaches to the duty to render assistance under the law of the sea, a breach to the duty to protect the right to life could be brought before the Inter-American Commission and Court. However, because so far jurisdiction has resulted problematic to protect the lives of migrants at sea, it is crucial to understand why jurisdiction has limited the applicability of the right to life in the context of migration by sea and to explore how extraterritorial jurisdiction may be established in the high seas. Therefore, in the following Chapter (II) the concept of jurisdiction and the current jurisdictional models will be discussed, to later analyse how adjudicative bodies have so far approached extraterritorial jurisdiction, particularly the extraterritorial application of the right to life.

64 See Articles 44 and 62 of the ACHR.

65 Aphrodite Papachristodoulou (n31) 353

66 Itamar Mann (n45) 608

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18 II. THE EXTRATERRITORIAL APPLICATION OF THE RIGHT TO LIFE:

AN ANALYSIS ON EXISTING CASE LAW

A. The concept of jurisdiction and the extraterritorial application of human rights treaties

a) The concept of jurisdiction

As already explained, jurisdiction is the threshold criterion for the application of human rights treaties both within and outside state parties’ territories.67 Jurisdiction conditions the application of human rights to the existence of a certain relationship between the right- holders and the state parties.68 The traditional jurisdictional link is territory, which triggers human rights obligations for States vis-a-vis individuals situated inside their territory. For the purposes of this research, it is relevant to refer that as per UNCLOS, a State has exclusive territorial jurisdiction in its territorial sea and internal waters (i.e. territorial waters).69 Therefore, jurisdiction for the purposes of human rights duties is triggered in the territorial waters of States. On the other hand, the high seas are not subject to the sovereignty of any State and are thus not part of the territory of any State.70 Hence, for a State to assert jurisdiction and have human rights duties in the high seas, extraterritorial jurisdiction must be established.

b) Extraterritorial jurisdiction and the extraterritorial application of human rights treaties

The extraterritorial application of human rights treaties refers to the recognition of rights by State parties of human rights instruments to individuals situated outside their territory.71 There is no default rule against or in favour of extraterritoriality.72 The only guidance thus is in the text of the treaties, and particularly in those provisions that govern the scope of application of each respective treaty.73 Most human rights treaties have jurisdictional clauses that establish that contracting parties shall secure the rights contained therein to everyone

67 Samantha Besson (n7) 859

68 ibid 860

69 See articles 2, 3 and 8 of UNCLOS.

70 See article 86 of UNCLOS.

71 Samantha Besson (n7) 857

72 Marco Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (OUP 2011) 10

73 ibid 10-11

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19

‘within their jurisdiction’. This is the case, for example, of the ICCPR, the ECHR and the American Convention.74

These clauses are non-exclusively territorial jurisdictional clauses, which means that they do not limit the application of the treaty to the territory of the contracting states.75 For this to be the case, the treaty would have to limit its application by determining that the rights contained therein shall be secured by States only to persons ‘within their territory.’ In other words, the literal wording of the provisions governing the application of each treaty allows to differentiate between territorial jurisdictional clauses and non-exclusively territorial jurisdictional clauses (in addition to the object and purpose of each treaty, as per the VCLT).76 This interpretative approach is confirmed by case law. For example, the ICJ has adopted a broad approach to the territorial scope of a human rights treaty where it does not expressly restrict its scope to territory.77

This, however, has not prevented States from objecting to the extraterritorial application of human rights treaties with non-exclusively territorial jurisdictional clauses. Nonetheless, international and regional human rights practice confirms that human rights treaties can apply extraterritorially. The ECtHR has particularly developed a rich case law on the matter, establishing that the ECHR can apply extraterritorially if certain conditions allow for jurisdiction to be established abroad. For example, the Court determined that the ECHR applied to the Turkish occupation of Northern Cyprus in the Loizidou case (1996), to the United Kingdom’s prisons and operations in Iraq in Al-Skeini (2011), to the Italian Coastguards’ ships border control operations in the Mediterranean in Hirsi Jamaa (2012)78 and to extraterritorial assassinations in Carter v Russia (2021).79

The ICJ has also established that human rights treaties can apply extraterritorially. The three most relevant cases confirming extraterritoriality are the Construction of a Wall Advisory Opinion (2004), DRC v Uganda (2005) and Georgia v Russia (2008).80 For example, in the Construction of a Wall Advisory Opinion, the ICJ determined, in relation to the ICCPR, that

74 ibid 11-12

75 See Samantha Besson (n7) 860

76 See Article 31 of the VCLT.

77 For example, in the Bosnian Genocide case and in Georgia v Russia. See James Crawford and Amelia Keene

‘Interpretation of the human rights treaties by the International Court of Justice’ (2020) IJHR 935, 945

78 Samantha Besson (n7) 858

79 Carter v Russia App no. 20914/07 (ECtHR, 21 September 2011) para 130

80 Ralph Wilde, ‘Human Rights Beyond Borders at the World Court: The Significance of the International Court of Justice’s Jurisprudence on the Extraterritorial Application of International Human Rights Law Treaties’

(2013) CJIL 639, 642

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20

‘while the exercise of jurisdiction is primarily territorial, it may sometimes be exercised outside the State territory.’81 The ICJ’s jurisprudence builds upon what had already been established by the ECtHR, as well as multiple monitoring treaty UN bodies, including the Human Rights Committee’s views and famous Lopez Burgos case (1984), where the HRC had already determined that the ICCPR can apply extraterritorially.82

c) Models of jurisdiction: Grounds for the extraterritorial application of human rights

It is currently uncontroversial that states may owe human rights obligations to individuals outside their territory. In other words, it is undisputed that States may have to protect, respect, and/or fulfil human rights abroad. Controversy remains, however, on how jurisdiction should be established extraterritorially and to what extent. In general, the term ‘jurisdiction’ has been defined extraterritorially as the exercise of control over either territory or individuals.83 Therefore, the criteria for assessing whether or not jurisdiction is established extraterritorially correspond to types of control.84

The first type of control is territorial, also known as the territorial model of jurisdiction. As per the case law of the ECtHR, the exercise of ‘effective control over an area’ results in the establishment of jurisdiction.85 Jurisdiction may be exercised not only on official territory (where jurisdiction is always presumed by international law), but also on foreign territory.

Control over foreign territory may be lawful or unlawful.86 Therefore, under this model States have human rights obligations abroad when they exercise effective control over a specific part of territory, whether lawfully or unlawfully. This model is now widely accepted, and has been adopted not only by the ECtHR, but also by the IACHR and the ICJ.87 For the purposes of this research, this model is relevant insofar as States have human rights duties vis-à-vis migrants that are in their territorial waters on the basis of de jure jurisdiction.

The second criterion for jurisdiction is personal control, also known as the personal model of jurisdiction. As per the case law of the ECtHR, the IACHR and multiple UN treaty bodies, de facto jurisdiction may be established when control is exercised over a person(s). In general,

‘effective control’ in the personal model can imply any coercive conduct over a person

81 Legal Consequences of the Construction of a Wall (Advisory Opinion) [2004] ICJ Rep 2004, para 109

82 Lopez Burgos v Uruguay, Selected Decisions of the Human Rights Committee (1984) paras 12.1-12.3

83 Ralph Wilde (n80) 664

84 Samantha Besson (n7) 874

85 Louzidou v Turkey App. 15318/89 (ECtHR, 18 December 1996) para 52

86 ibid.

87 See Marco Milanovic (n72) 127-128. For example, the model was adopted by the ECtHR in Al-Skeini, by the ICJ in the Wall and Congo v Uganda cases and by the IACHR in Ecuador v Colombia.

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21 through the use of direct force or the exercise of physical control.88 The personal model has been adopted by the HRC since the Lopez Burgos case (1981)89, by the IACHR since the Victor Saldaño case (1999)90 and by the ECtHR since Issa (2004).91

Lastly, a third model of jurisdiction is the functional one, which entails control over the rights of an individual. Because the functional model is based on the control exercised by a State over an individual’s enjoyment of human rights, it does not require physical control over said individual, as the personal model typically does. Ergo, as per the functional model

‘contactless’ jurisdiction may be established, and what matters is that a State exercises its public powers when taking a decision that will have a reasonable foreseeable consequence on the enjoyment of the human rights of persons.92 Of all the models, the functional model is the most novel one. Therefore, it has been sparsely addressed thus far in case law. Nonetheless, several actors have recently proposed resorting to this model, including some Strasbourg judges in several separate opinions.93 For example, in their partly dissenting opinion in Georgia v Russia (2021), judges Yudkivska, Wojtyczek and Chanturia argued that ‘a High Contracting Party shall secure the [ECHR] rights […] to everyone under its State power and the scope of the rights and freedoms to be secured should be adequate to the extent of the scope of effective State power.’94

For the purposes of this research, both the personal and functional model are relevant insofar as they may justify human rights duties vis-à-vis migrants at sea beyond the territorial waters of States, as long as a jurisdictional link is established on the basis of control. In the following sub-chapters it is analysed how this jurisdictional link may be established as per current international and regional case law. Particularly, it will be analysed how the IACHR, IACtHR, ECtHR and HRC have approached the issue of extraterritorial jurisdiction.

B. Inter-American case law on the extraterritorial application of the American Declaration and the American Convention

Prior to discussing the most important cases within the Inter-American system pertaining the extraterritorial application of the American Declaration and ACHR, it is relevant to refer that the ACHR does have a jurisdictional clause, while the American Declaration does not.

88 Mariagiulia Giuffré (n48) 58

89 See Lopez Burgos v Uruguay (n82) paras 12.1-12.3

90 See Victor Saldaño Report no. 38/99 (Admissibility) IACHR (1999) paras 17-19

91 Marco Milanovic (n72)183

92 Mariagiulia Giuffré (n48) 55-59

93 ibid 63

94 Georgia v Russia App no 38263/08, Joint Partly Dissenting Opinion Judges Yudkivska, Wojtyczek and Chanturi (ECtHR, 21 January 2021) para 3

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22 Specifically, Article 1(1) of the ACHR establishes that all State parties have the obligation to respect and protect the rights recognized therein to all persons ‘subject to their jurisdiction’.

On the other hand, the American Declaration is silent on the matter. The IACHR has however addressed this silence by establishing in case law that, as in the case of the American Convention, the human rights recognized in the American Declaration must be ensured to all persons ‘under the jurisdiction’ of OAS member States.95 The fact that both the American Convention and the American Declaration apply to all persons subject to the jurisdiction of State parties and OAS member States, respectively, is undisputed. Controversy may arise, however, on the basis of what grounds extraterritorial jurisdiction is established. The possible grounds are subsequently discussed through an overview of the IACtHR’s and Commission’s case law.

i. US Interdiction of Haitians on the high seas case, Inter-American Commission (1997)

In 1990, the Commission received a petition on behalf of several Haitian nationals against the United States in the context of the interdiction programme of 1981. The so-called

‘interdiction programme’ essentially established that the U.S. would prevent the entry of the Haitian migrants by intercepting them on the high seas before they reached U.S. territory (territorial waters). According to the United States, if the Haitian migrants did not arrive to U.S. territory then the Refugee Convention (particularly the principle of non-refoulement) would not apply. The argument put forward was that the non-refoulment obligation was a

‘limited obligation, only relevant with respect to refugees who have reached the territory of a Contracting State, and does not apply to persons interdicted on the high seas.’96 This position was confirmed by the Supreme Court of the United States in Sale v. Haitian Centers Council (1993).97

Four years after the Sale judgment, the Commission issued its decision on the merits opposing the Supreme Court’s position by establishing that Article 33 of the Refugee Convention (on non-refoulement) had ‘no geographical limitations.’98 It further found that the United States had breached the right to life, liberty and security of the Haitian migrants by interdicting them on the high seas.99 The Commission thus determined that Article 1 of the

95 See Coard et al. v. United States, Report no. 109/99, IACHR (1999) para 37

96 The Haitian Centre for Human Rights et al. v. United States, Report no. 51/96, IACHR (1997) para 71

97 ibid, para 156

98 ibid, para 157

99 ibid, paras 168-171

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23 American Declaration (on the right to life, liberty and security) applied extraterritorially in the high seas, although it did not actually engage in a discussion as to why this was the case (i.e. on the basis of what ground jurisdiction was established for the United States in the high seas). The absence of discussion on grounds for the extraterritorial application of Inter- American instruments in this case was, however, addressed by both the Commission and the Court in subsequent case law.

ii. Victor Saldaño case, Inter-American Commission (1999)

In this case, the Commission had to analyse whether or not Mr. Saldaño fell under the jurisdiction of the Argentinian State while physically being in the United States. The Commission established that the notion of ‘jurisdiction’ referred to in Article 1(1) of the American Convention is not strictly territorial, but rather implies that a State party can be responsible for acts or omissions [of its agents] that are committed or have their effects consummated outside their territory.100 It further referred that the concept of jurisdiction must be understood as being linked to the concept of ‘authority’ and ‘effective control’ and not merely to territory.101 Thus, this case is relevant for the purposes of this research insofar as it was the first case where the Commission expressly addressed the issue of extraterritoriality of Inter-American instruments. Particularly important is the fact that the Commission determined that the American Convention can be applied extraterritorially under the basis of

‘control or authority over a person’ (i.e. personal model of jurisdiction).

iii. Coard et al. v. United States and Armando Alejandre Jr., et. al v. Cuba, Inter- American Commission (1999)

In Coard et al v United States (1999) the IACHR had to again address the matter of the extraterritorial application of the American Declaration. In its decision, the Commission held the following:

Given that individual rights inhere simply by virtue of a person's humanity, each American State is obliged to uphold the protected rights of any person subject to its jurisdiction. While this most commonly refers to persons within a state's territory, it may (…) refer to conduct with an extraterritorial locus where the

100 Victor Saldaño (n90) para 17

101 ibid, para 19.

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24 person concerned is present in the territory of one state, but subject to the control of another state.102

This decision is particularly relevant as it emphasizes that human rights recognized within the Inter-American System are a consequence of a person’s humanity, and not a consequence of the person’s presence in a specific geographic location. This idea was reiterated by the Commission in the Armando Alejandre Jr., et. al v. Cuba case (also of 1999), where it referred that because individual rights are inherent to the human being, all the American States are obligated to respect the protected rights of any person subject to their jurisdiction.103

iv. Ecuador v. Colombia, Inter-American Commission (2010)

In 2009 the IACHR received a communication by the State of Ecuador alleging that Colombia had violated multiple provisions of the American Convention in prejudice of Mr.

Molina, an Ecuadorian citizen.104 Because the inter-state complaint alleged that the State of Colombia had violated the right of Mr. Molina in Ecuadorian territory, the State of Colombia argued that the IACHR lacked jurisdiction ratione loci due to the fact that ‘the alleged victim was not subject to the jurisdiction of Colombia.’105 Particularly, the State of Colombia argued that, as a general rule, the concept of jurisdiction must be interpreted in a territorial sense, and that the only two exceptions to this rule relate to military operations or the acts of diplomatic or consular agents in the territory of other States.106

The Commission held that in international law the bases of jurisdiction are not exclusively territorial, as jurisdiction may be exercised on the basis of multiple other grounds.107 It further established that in determining jurisdiction, what is essential is to analyse whether authority has been exercised over the concerned person(s) by agents of a State, even if not acting within their territory.108 Furthermore, it stated that when examining the scope of the American Convention’s jurisdiction, what must be analysed is whether there is a causal nexus between the extraterritorial conduct of the State and the [alleged] human rights violations.109

102 Coard et al. v. United States (n95) para 37.

103 Armando Alejandre Jr., Carlos Costa, Mario de la Pena y Pablo Morales v. Republica de Cuba, Report no.

86/99, IACHR (1999) para 23

104 Franklin Guillermo Aisalla Molina (Ecuador v. Colombia) Report no. 112/10 (Admissibility) IACHR (2010) para 1

105 ibid para 79.

106 ibid paras 80-81

107 ibid para 91.

108 ibid.

109 ibid.

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25 v. Advisory Opinion OC-21/14 on the Rights and Guarantees of Migrant Children,

Inter-American Court (2014)

In 2011 Argentina, Brazil, Paraguay and Uruguay submitted a request for an Advisory Opinion to determine the precise obligations of States vis-à-vis migrant children.110 Despite the fact that in this Advisory Opinion the Court exclusively focused on the obligations that arise on the basis of territorial jurisdiction,111 the Opinion is still relevant for the purposes of extraterritoriality insofar as the Court did clarify that jurisdiction within the Inter-American system may be established on the basis of authority, responsibility or control.112 In other words, in this Opinion the Court reiterated the grounds established by the IACHR for extraterritorial jurisdiction. It is particularly interesting to note that the Court not only referred to control and authority (as the Commission had also done in Victor Saldaño) but also to the concept of responsibility.

vi. Djamel Ameziane case, Inter-American Commission (2020)

In this case, the Commission had to assess whether or not the United States had jurisdiction in spite of the fact that the alleged human rights violations had not happened in American territory, but rather in Pakistan, Afghanistan and Cuba (Guantanamo Bay).113 In 2012, the Commission admitted the case and determined that the duty to protect the rights of any person recognized in the American Declaration ‘may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one State, but subject to the control of another State.’114

The Commission further determined that in regard to the apprehension of Mr. Ameziane, the actions performed by the agents of the United States implied ‘an exercise of physical power and control over the person’ and thus jurisdiction of the United States was established, even though Mr. Ameziane was apprehended in Pakistan. By virtue of the same reasoning, the Commission considered that the alleged acts committed against Mr. Ameziane in Afghanistan also fell under the jurisdiction of the United States, as the U.S. exercised ‘total and exclusive de facto control’ over the prison [where Mr. Ameziane was held in Afghanistan] and the

110 Rights and Guarantees of Children in the Context of Migration And/Or In Need Of International Protection, Advisory Opinion OC-21/14, Inter-American Court of Human Rights (19 August 2014) para 1

111 ibid

112 ibid, para 219

113 Djamel Ameziane v. United States, Report no. 17/12 (Admissibility) IACHR (2012) para 29

114 ibid, para 30

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