Published online by Cambridge University Press: 17 August 2012
On 23 February 2012, the European Court of Human Rights (the Court), sitting as a Grand Chamber, delivered its long-anticipated judgment in the Hirsi Jamaa and Others v Italy (Hirsi) case.1 The case was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of 231 migrants and refugees (191 men and 40 women) that left Libya heading for the Italian coast. Halted on 6 May 2009 by three ships from the Italian Revenue Police (Guardia di Finanza) approximately 35 miles south of Lampedusa on the high seas, in the SAR zone under Maltese competence, they were summarily returned to Libya without identification and assessment of their protection claims.2
1 App no 27765/09.
2 At present, two applicants have died: Abbirahman Hasan Shariff in the attempt to return to Europe by sea; and Mohamed Mohmed Abuker who passed away in Libya from natural cause.
3 Protocol and Additional Protocol on the cooperation in the fight against irregular immigration of 29 December 2007; Executive Protocol of 4 February 2009, supplementary to the one signed on 29 December 2007. For an analysis of the agreements of technical and police cooperation between Italy and Libya, see, M Giuffré, ‘State Responsibility beyond Borders: What Legal Basis for Italy's Push-backs to Libya?’ IJRL (forthcoming 2012).
4 European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950.
5 Protocol 4 to the ECHR of 16 September 1963.
9 On the relation between illegal migrants and asylum seekers in readmission and return policies, see J van der Klaauw, ‘Irregular Immigration and Asylum-Seeking: Forced Marriage or Reason for Divorce?’ in B Bogusz, R Cholewinski, A Cygan, and E Szyszczak (eds), Irregular Migration and Human Rights: Theoretical, European, and International Perspectives (Martinus Nijhoff 2004).
10 The Court also added that the applicants were directly put on board Italian ships, which are considered to be Italian territory under art 4 of the Italian Code of Navigation.
11 M den Heijer, ‘Europe Beyond its Borders: Refugee and Human Rights Protection in Extraterritorial Immigration Control’ in B Ryan and V Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff 2010) 190.
12 B Ryan, ‘Extraterritorial Migration Control: What Role for Legal Guarantees?’ in ibid 37.
13 All countries in Europe are party to the 1951 Refugee Convention, with Turkey maintaining a geographical reservation: Convention relating to the Status of Refugees 28 July 1951 (Refugee Convention).
14 The ECtHR's approach in Bankovic and Others v Belgium and Others (2007) 44 EHRR SE5, 86 (Bankovic) now has to be read subject to its judgment in Al-Skeini and Others v UK App no 55721/07 (ECtHR, 7 July 2011).
15 Milanovic, M, The Extraterritorial Application of Human Rights Treaties (OUP 2011) 8CrossRefGoogle Scholar.
16 In accordance with the UNHCR's proposed definition, ‘interception’ embraces all those extraterritorial activities carried out by a State to keep undocumented migrants further away from their territory, thus preventing entry by land, sea, or air. See, UNHCR Executive Committee, ‘Interception of Asylum Seekers and Refugees: the International Framework and Recommendations for a Comprehensive Approach’ EC/50/SC/CPR.17 (9 June 2000) para 10.
17 GS Goodwin-Gill, ‘The Extraterritorial Reach of Human Rights Obligations: A Brief Perspective on the Link to Jurisdiction’ in L Boisson de Chazournes and M C Kohen (eds), International Law and the Quest for its Implementation/Le Droit International et la Quête de sa Mise en Oeuvre: Liber Amicorum Vera Gowlland-Debbas (Brill 2010) 306.
18 For an extended critical analysis of the Bankovic case, see, R Lawson, ‘Life after Bankovic—On the Extraterritorial Application of the European Convention on Human Rights’ in F Coomans and M T Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia 2004) 104; K Wouters, International Legal Standards for the Protection from Refoulement (Intersentia 2009) 205–6.
19 The first three categories of exceptions were first set out by the ECtHR in Loizidou v Turkey (preliminary objections) (1995) 20 EHRR 99, para 62.
21 Bankovic (n 14) para 70. See also, Cyprus v Turkey (1982) 4 EHRR 482 (Commission Decision) para 8.
22 Bankovic (n 14) para 73. In this regard, the Court in Hirsi also cites the Al-Saadoon and Mufdhi v United Kingdom (2010) 51 EHRR 9, para 85.
28 Hirsi (n 1) para 73. The Court refers here to Al-Skeini (n 14) paras 132 and 136; and to Medvedyev and Others v France (2010) 51 EHRR 39, para 67 (Medvedyev). For an analysis of the Al-Skeini case, see C Mallory, ‘European Court of Human Rights Al-Skeini and Others v United Kingdom (App no 55721/07) Judgment of 7 July 2011’ (2012) 61 ICLQ 301.
32 ibid para 81. See, Papastavridis, E, ‘European Court of Human Rights Medvedyev et al v France’ (2010) 59 ICLQ 867–82Google Scholar.
38 ibid para 114. The Court cites Soering v UK (1989) 11 EHRR 439, paras 90–1; Vilvarajah and Others v the United Kingdom (1991) 14 EHRR 248, para 103; Jabari v Turkey App no 40035/98 (ECtHR, 1 July 2000), para 38; Ahmed v Austria (1997) 24 EHRR 278, para 39; HLR v France (1997) 26 EHRR 29, para 34; and Salah Sheekh v The Netherlands (2007) 45 EHRR 50, para 135.
39 Under art 33(1) of the Refugee Convention, ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’
41 App no 39473/98, Admissibility Decision (ECtHR, 11 January 2001) (Xhavara).
42 See Weinzierl, R and Lisson, U, Border Management and Human Rights (German Institute for Human Rights 2007) 63Google Scholar, 70.
47 For example, the UN Human Rights Committee (HRC) recognizes the extraterritorial scope of the relevant Covenant to the non-refoulement obligation where individuals are either within or outside the territory of a State party, but in any case under the power or actual control of the State itself. This also implies a prohibition to return a person where reliable grounds exist to believe that he will suffer an irreparable harm either in the readmitting country or in any other country where he could subsequently be removed (HRC, General Comment 31, para 12). See also, the HRC Concluding Observations on the United States (HRC, Concluding Observations on the United States of America, UN doc CCPR/C/USA/CO/3Rev. 1 (18 December 2006) para 16).
48 Under art 3(1) of the Convention against Torture (CAT), ‘No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’
49 CAT/C/41/D/323/2007 (21 November 2008).
52 According to the Presidium of the Convention that drafted the Charter, the Explanations ‘have no legal value and are simply intended to clarify the provisions of the Charter’.
53 Regulation of the European Parliament and of the Council (EC) 562/2006 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders  OJ L105/1 (SBC).
55 SBC, paras 2.1.3. and 2.2.1, Annex VI. While at sea, controls can be performed ‘in the territory of a third country’ (para 3.1.1, Annex VI), checks can be carried out also ‘in [rail] stations in a third country where persons board the train’ (para 1.2.2, Annex VI). For an analysis of the scope of application of the SBC, see, den Heijer (n 11) 176–80.
56 Letter from ex-Commissioner Barrot to the President of the LIBE Committee 15 July 2009, as cited by the ECtHR in Hirsi (n 1) paras 34, 135.
57 ibid. See also, Moreno-Lax, V, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’ (2011) 23 IJRL 174CrossRefGoogle Scholar; Nascimbene, B, ‘Il Respingimento degli Immigrati e i Rapporti tra Italia e Unione Europea’ (2009) Affari Internazionali 4Google Scholar.
60 See Conka v Belgium (2002) 34 EHRR 54, para 59 (Conka); Alibaks and Others v The Netherlands App no 14209/88, DR 59/274.
61 van Dijk, P and van Hoof, GJH, Theory and Practice of the European Convention on Human Rights (Kluwer 1984) 500Google Scholar.
62 In the Pranjko v Sweden case (App no 45925/99 (ECtHR, 23 February 1999)), the Court stated the fact that a number of aliens receive similar decisions does not lead to the conclusion that there is a collective expulsion when each person concerned has been given the opportunity to present arguments against his expulsion to the competent authorities on an individual basis. See Howley, JD, ‘Unlocking the Fortress: Protocol No 11 and the Birth of Collective Expulsion Jurisprudence in the Council of Europe System’ (2006–07) 21 GILJ 117Google Scholar.
65 Hirsi (n 1) para 177. See also, B Ryan, ‘Hirsi: Upholding the Human Rights of Migrants at Sea’ (6 March 2012) Note for ILPA and the Migration and Law Network 5.
67 ibid para 175. To support this argument, the Court cites Marckx v Belgium (1979) 2 EHRR 330, para 41; Airey v Ireland (1979) 2 EHRR 305; Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494, para 121; and Leyla Sahin v Turkey App no 44774/98 (ECtHR, 29 June 2004), para 136.
71 Under art 13 of the ECHR, ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’
72 Fischer-Lescano, A, Löhr, T and Tohidipur, T, ‘Border Controls at Sea: Requirements under International Human Rights and Refugee Law’ (2009) 21 IJRL 286CrossRefGoogle Scholar. The authors make the same claim with regard to art 33(1) of the Refugee Convention, which has been argued to contain an implicit right to an effective remedy. See also, Noll, G, ‘Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones’ (2003) 5 EJML 332Google Scholar; Hathaway, J, The Rights of Refugees under International Law (CUP 2005) 279CrossRefGoogle Scholar; Edwards, A, ‘Tampering with Refugee Protection: The Case of Australia’ (2003) 15(2) IJRL 210CrossRefGoogle Scholar; Weinzierl and Lisson (n 48) 50.
73 App no 30471/08 (ECtHR, 22 September 2009), paras 111–14 (Abdolkhani).
80 Bahaddar v The Netherlands (1998) 26 EHRR 278, para 45.
81 See ECtHR, Shamayev and Others v Georgia and Russia App no. 36378/02 (ECtHR, 12 April 2005), para 460 (Shamayev); Garabayev v Russia (2009) 49 EHRR 12, para 106; Baysakov and Others v Ukraine App no 54131/08 (ECtHR, 18 February 2010), paras 71, 74–5; Muminov v Russia App no 42502/06 (ECtHR, 11 December 2008), para 101.
83 Gebremedhin v France App no. 25389/05 (ECtHR, 26 April 2007), para 66; Abdolkhani (n 73) para 58.
84 SH Legomsky, ‘Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection’ (UNHCR Report 2003) 88 <http://www.unhcr.org/refworld/pdfid/3f4de85d4.pdf > accessed 31 March 2012.
86 Hussun and Others v Italy App nos 10171/05, 10601/05, 11593/05 and 17165/05 (ECtHR, 19 January 2010).
88 T.I. v The United Kingdom App no 43844/98 Admissibility Decision (ECtHR, 7 March 2000) 14. The reasoning of the Court implies a duty to examine the substance of an asylum application before expelling a person to an intermediary country if the situation in the country of origin ‘gives rise to concerns’. See Guild, E, ‘The Europeanisation of Europe's Asylum Policy’ (2006) 18 IJRL 649CrossRefGoogle Scholar.
90 According to the Court, since no national authority examined their allegation of a risk of ill-treatment if returned to Iran or Iraq, the applicants were not afforded an effective remedy in relation to their complaints under art 3. Abdolkhani (n 73) paras 113, 115.
91 Z.N.S. v Turkey App no 21896/08 (ECtHR, 19 January 2010), paras 47–9. Further cases remain pending on the issue of access to asylum determination procedures. See eg Sharifi and others v Italy and Greece, App no 16643/09, communicated 13 July 2009 (pending). For an extended analysis of the right to asylum in relation to the ECHR, see, Mole, N and Meredith, C, Asylum and the European Convention of Human Rights (Council of Europe Publishing 2010) 103–7Google Scholar.
92 Amuur v France (1996) 22 EHRR 533, para 43.
94 Of the same opinion, also J Schneider, ‘Comment to Hirsi (part II): Another Side to the Judgment’ (Strasbourg Observers, 5 March 2012) <http://strasbourgobservers.com/2012/03/02/hirsi-part-ii-another-side-to-the-judgment/> accessed 31 March 2012.
96 See, International Law Association, ‘Resolution 6/2002 on Refugee Procedures (Declaration on International Minimum Standards for Refugee Protection)’ (2002) para 8. See also, Inter-American Commission on Human Rights, Haitian Centre for Human Rights et al. v US, Case 10.675, para 163.
97 T Spijkerboer, ‘Stretching the Limits: European Maritime Border Control Policies and International Law’ in M-C Foblets (ed) The External Dimension of the Immigration and Asylum Policy of the European Union (Bruylant 2009) 13.
99 Osman v UK (2000) 29 EHRR 245, para 116.
100 Response of the Italian Government to the Committee on the Prevention of Torture (CPT) Report, Appendix I, para d <http://www.cpt.coe.int/documents/ita/2010-inf-15-eng.htm> accessed 31 March 2012.
104 Guidelines on the treatment of persons rescued at sea of the International Maritime Organization (IMO), Resolution MSC.167(78), 20 May 2004, para 6.17 subsequently endorsed by the UN General Assembly in UN doc. A/RES/61/222, 16 March 2007.
110 This position finds ample support under international human rights and refugee law. See eg UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status’ HCR/1P/4/ENG/REV. 3 (December 2011) para 192. According to Goodwin-Gill, intercepted people should always be given an opportunity to set out reasons why they might be at risk if returned. See Goodwin-Gill, GS, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-refoulement’ (2011) 23 IJRL 449CrossRefGoogle Scholar.
111 While art 1A(2) of the Refugee Convention only provides five grounds of persecution (‘race, religion, nationality, membership of a particular social group or political opinion’) to attract the protection of the Convention, no similar qualification applies to art 3 of the ECHR. For a review of case law, see Mole and Meredith (n 91) 25–6.
114 Following the same logic, the UNHCR declares that ‘claims for international protection made by intercepted persons are in principle to be processed in procedures within the territory of the intercepting State’. See UNHCR Protection Policy Paper ‘Maritime Interception Operations and the Processing of International Protection Claims: Legal Standards and Policy Considerations with Respect to Extraterritorial Processing’ (November 2010) 2 <http://www.unhcr.org/refworld/pdfid/4cd12d3a2.pdf> accessed 31 March 2012.
115 Hirsi (n 1) Concurring Opinion 40. The non-refoulement obligation has an absolute value ‘when there is a risk of serious harm as a result of foreign aggression, internal armed conflict, extrajudicial death, forced disappearance, death penalty, torture, inhuman or degrading treatment, forced labour, trafficking in human beings, persecution, or trial based on a retroactive penal law or on evidence gathered by torture or inhuman and degrading treatment in the receiving State’. See Hirsi (n 1) Concurring Opinion 41.
116 Under art 33(2) of the Refugee Convention, the principle of non-refoulement ‘may not […] be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country’.
118 Edwards, A, ‘Human Security and the Rights of Refugees: Transcending Territorial and Disciplinary Borders’ (2009) 30 MJIL 795Google Scholar.
121 Ibid 45. See also, the Parliamentary Assembly of the Council of Europe, ‘Resolution 1821 (2011) on the Interception and Rescue at Sea of Asylum Seekers, Refugees, and Irregular Migrants’, paras 9.3–9.6.
122 UNHCR, ‘Haitian Interdiction Case’, Brief Amicus Curiae (1993) 92.
123 See eg Lambert, H, ‘Protection against Refoulement from Europe: Human Rights Law Comes to the Rescue’ (1999) 48 ICLQ 515–44CrossRefGoogle Scholar.
124 Amnesty International, ‘Italy: ‘‘Historic’’ European Court Judgment Upholds Migrants’ Rights’ (24 February 2012) <http://www.amnesty.org.nz/news/italy-‘historic’-european-court-judgment-upholds-migrants’-rights> accessed 31 March 2012.
125 Frontex is the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, established on 26 October 2004 by Council Regulation (EC) 2007/2004. It plays a regulatory and coordinating role between the EU border guards, although ‘the responsibility for the control and surveillance of the external border lies with the Member States’ (art 1(2)).