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Non-Refoulement and Extraterritorial Jurisdiction: State Sovereignty and Migration Controls at Sea in the European Context

Abstract
Abstract

The principle of non-refoulement found in the UN Convention on the Status of Refugees has been widely regarded as the core element of the international refugee protection regime. However, in the recent era of restrictive external migration controls, its significance and ambit diminished to the extent that states began to regard it as a general moral principle that imposed only narrowly defined legal constraints. In particular, interception or interdiction of refugees on the high seas came to be regarded as activities falling outside the legal ambit of the non-refoulement obligation. However, in Europe, this has begun to change. The non-refoulement obligation found in Article 3 of the European Convention on Human Rights (ECHR) has been recognized as a legal constraint on state sovereignty in relation to migration controls on the high seas. This article scrutinizes how the developing concept of jurisdiction in human rights law, particularly as found in the ECHR, has expanded the scope of application of the principle of non-refoulement, and presents some important implications. The concept of state sovereignty has begun to undergo a paradigm shift that places extraterritorial human rights concerns relating to external migration controls squarely within a legal rather than merely a moral framework.

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1 1951 Convention relating to the Status of Refugees, 189 UNTS 137, Art. 33(1).

2 A.M. North, ‘Extraterritorial Effect of Non-Refoulement’, The International Association of Refugee Law Judges World Conference, 7–9 September 2011, available at www.fedcourt.gov.au/publications/judges-speeches/justice-north/north-j-20110907 (accessed 22 January 2015); See George Bush, ‘Executive Order 12807 – Interdiction of Illegal Aliens,’ The American Presidency Project, 24 May 1992, available at www.presidency.ucsb.edu/ws/index.php?pid=23627 (accessed 22 January 2015), para. 2: ‘(2) The international legal obligations of the United States under the United Nations Protocol Relating to the Status of Refugees (U.S. T.I.A.S. 6577; 19 U.S.T. 6223) to apply Article 33 of the United Nations Convention Relating to the Status of Refugees do not extend to persons located outside the territory of the United States . . .’

3 Hirsi Jamaa and Others v. Italy, Decision of 23 February 2012, Application no. 27765/09 (Hirsi).

4 European Union, Charter of Fundamental Rights of the European Union, 18 December 2000 (2000/C364/01), O.J. 364/3; Consolidated Version of the Treaty on the Functioning of the European Union, 26 October 2012, O.J. C326/47; S. Saliba, ‘Non-refoulement, push-backs and the EU response to irregular migration’, 13 May 2015, European Parliamentary Research Service, available at epthinktank.eu/2015/05/13/non-refoulement-push-backs-and-the-eu-response-to-irregular-migration/ (accessed 23 September 2015).

5 European Parliament and Council Regulation (EU) No 656/2014 of 15 May 2014 on establishing rules for the surveillance of the external sea borders in the context of operational co-operation co-ordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, para. 10.

6 See Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED), O.J. L 122/31, para. 6.

7 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, CETS No. 5 (ECHR).

8 Ibid., Art. 1.

9 M.N. Shaw, International law (2003), 572–3; Lawson R., ‘Life after Bankovic: On the Extraterritorial Application of the European Convention on Human Rights’, in Coomans F. and Kamminga M.T. (eds.), Extraterritorial Application of Human Rights Treaties (2004), 83 at 87.

10 Shaw, supra note 9, at 573; Lawson, supra note 9, at 87.

11 M.N. Shaw, International law (2008), 645–6.

12 Ibid. Shaw also states that ‘[j]urisdiction, although primarily territorial, may be based on other grounds, for example nationality, while enforcement is restricted by territorial factors’: ibid., at 646.

13 Klug A. and Howe T., ‘The Concept of State Jurisdiction and the Applicability of the Non-refoulement Principle to Extraterritorial Interception Measures’, in Ryan B. and Mitsilegas V. (eds.), Extraterritorial Immigration Control: Legal Challenges (2010), 69 at 98.

14 Mallory C., ‘I. European Court of Human Rights Al-Skeini and Others v United Kingdom (Application no 55721/07) Judgment of 7 July 2011’, (2012) 61 International and Comparative Law Quarterly 301, at 309.

15 M. Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (2011), 41.

16 Klug and Howe, supra note 13, at 76. The ‘personal link’ refers to the ‘cause-and-effect’ approach in which jurisdiction may be established on the basis of: ‘“personal link” between the State and the victim through the State's action’; for example, Klug and Howe observe in the Alejandre case (the Inter-American Commission case) that, ‘[i]n the absence of any territorial or physical personal control exercised by Cuba, it was the sheer act of bombing which established the “personal link” and brought the victims under the authority of Cuba’: Klug and Howe, supra note 13, at 87–8; Alejandre Jr., et al. v. Cuba, Report No. 86/99, Case 11.589, Inter-American Commission on Human Rights (29 September 1999).

17 McGoldrick D., ‘Extraterritorial Application of the International Covenant on Civil and Political Rights’, in Coomans F. and Kamminga M.T. (eds.), Extraterritorial Application of Human Rights Treaties (2004), 41 at 42.

18 See generally T. Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (2011), 112. Mactavish J in Amnesty International Canada v. Canada (Canadian Forces) stated that, ‘a “control of the person” test would be problematic in the context of a multinational military effort . . . Indeed, it would result in a patch work of different national legal norms applying in relation to detained Afghan citizens in different parts of Afghanistan, on a purely random-chance basis’: Amnesty International Canada v. Canada (Canadian Forces), 2008 FC 336, para. 274, [2008] F.C.J. No. 356.

19 Banković and Others v. Belgium and Others, Decision of 12 December 2001, Application no. 52207/99 (Banković).

20 Ibid., para. 28.

21 Ibid., para. 67.

22 Ibid., para. 75. With respect to the ‘cause-and-effect’ approach proposed by the applicants, the Court states that ‘. . . the applicants’ submission is tantamount to arguing that anyone adversely affected by an act imputable to a Contracting State, wherever in the world that act may have been committed or its consequences felt, is thereby brought within the jurisdiction of that State for the purpose of Article 1 of the Convention. The Court is inclined to agree with the Governments’ submission that the text of Article 1 does not accommodate such an approach to “jurisdiction”’: ibid. See also supra note 16.

23 See Giuffré M., ‘Watered-Down Rights on the High Seas: Hirsi Jamma and Others v Italy’, (2012) 61 International and Comparative Law Quarterly 728, at 732.

24 Banković, supra note 19, paras. 68–71. The Court relies on the Loizidou case in which Turkey exercised ‘effective overall control’ over the concerned place by military actions which involved 30,000 army personnel: Loizidou v. Turkey, Decision of 23 March 1995, Application no.15318/89; Loizidou v. Turkey, Decision of 28 November 1996, Application no. 15318/89.

25 Banković, supra note 19, para 73.

26 Ibid., paras. 68–73.

27 Milanovic, supra note 15, at 22.

28 Milanovic M., ‘Al-Skeini and Al-Jedda in Strasbourg’, (2012) 23 EJIL 121, at 122 (emphasis in original).

29 See generally Miller S., ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention’, (2009) 20 EJIL 1223, at 1225; Mallory, supra note 14, at 304; See also R. (on the application of Al-Skeini) v. Secretary of State for Defence [2007] UKHL 26 (Al-Skeini), para. 67 per Lord Rodger: ‘[t]he problem which the House has to face, quite squarely, is that the judgments and decisions of the European Court do not speak with one voice’.

30 Issa and Others v. Turkey, Decision of 16 November 2004, Application no.31821/96 (Issa).

31 Miller, supra note 29, at 1232–4.

32 Ibid., at 1245. As for the concept of functional sovereignty, Miller suggests that ‘[i]n “effective control” cases, this functional sovereignty takes the form of de facto control over another state's territory. In diplomatic and consular cases, it takes the form of quasi-sovereign functions within an embassy or in relation to a signatory state's own citizens. . .’: ibid., at 1245.

33 See ibid., at 1236.

34 Issa, supra note 30.

35 Al-Skeini, supra note 29.

36 Issa, supra note 30, para. 74: ‘[t]he Court does not exclude the possibility that, as a consequence of this military action, the respondent State could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq . . . ’; see also Al-Skeini (UK case), supra note 29, para. 80.

37 Issa, supra note 30, paras. 71–5; Al-Skeini (UK case), supra note 29, para. 75; See Milanovic, supra note 28, at 122.

38 Al-Skeini (UK case), supra note 29.

39 See M.D. Evans, ‘State Responsibility and the European Convention on Human Rights: Role and Realm’, in Fitzmaurice M. and Sarooshi D. (eds.), Issues of State Responsibility before International Judicial Institutions (2004), 139 at 140; See M. Milanovic, ‘Grand Chamber Judgment in Catan and Others’ (2012) EJIL:Talk!, available at www.ejiltalk.org/grand-chamber-judgment-in-catan-and-others/ (accessed 23 January 2015).

40 Milanovic, supra note 15, at 183.

41 Miller, supra note 29, at 1228.

42 Öcalan v. Turkey, Decision of 12 May 2005, Application no. 46221/99 (Öcalan).

43 Ibid., para. 91 (emphasis added).

44 Milanovic, supra note 15, at 167.

45 Al-Saadoon and Mufdhi v. The United Kingdom, Decision (admissibility) of 30 June 2009, Application no. 61498/08, (Al-Saadoon).

46 Ibid., para. 88.

47 Medvedyev and Others v. France, Decision of 29 March 2010, Application no. 3394/03 (Medvedyev).

48 Ibid., para. 67.

49 Milanovic, supra note 15, at 162.

50 Lawson, supra note 9, at 84.

51 Miller, supra note 29, at 1236.

52 Ibid.; See O'Boyle M., ‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on “Life after Bankovic”’, in Coomans F. and Kamminga M.T. (eds.), Extraterritorial Application of Human Rights Treaties (2004), 125 at 134.

53 Medvedyev, supra note 47, paras. 15–26.

54 Al-Skeini and Others v. The United Kingdom, Decision of 7 July 2011, Application no. 55721/07 (Al-Skeini).

55 Ibid., para. 131.

56 Ibid.

57 Ibid., paras. 133–40.

58 Ibid., para. 136.

59 Ibid.

60 Ibid (emphasis added).

61 Ibid., para. 131.

62 O'Boyle, supra note 52, at 128.

63 Al-Skeini (UK case), supra note 29, para. 83.

64 Ibid., para. 61.

65 Al-Skeini, supra note 54, para.149 (emphasis added).

66 Ibid.

67 Milanovic, supra note 28, at 130 (emphasis in original).

68 Banković, supra note 19, para. 71 (footnotes omitted).

69 Hirsi, supra note 3.

70 Ibid.

71 The ECHR, supra note 7, at Art. 3: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, Art. 13: ‘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’, Art. 4 of Protocol No. 4: ‘Collective expulsion of aliens is prohibited.’

72 Hirsi, supra note 3, paras. 81, 146, 148, 156–8. Notably, James Crawford has critiqued the decision of the ECtHR in relation to the extraterritorial applicability of Art. 4 of Protocol No. 4 (‘Prohibition of collective expulsion of aliens’). Crawford is adamant that Art. 4 of Protocol No. 4 has a ‘territorial limitation’ on the basis of the plain meaning of ‘expulsion’, ‘the drafting history’ of the provision of Art. 4, ‘important norms of international law’ including Art. 33 of the Refugee Convention, and the definition of ‘expulsion’ provided by the International Law Commission: Crawford J., ‘Chance, Order, Change: The Course of International Law (Volume 365)’, Collected Courses of the Hague Academy of International Law (2013), paras. 347–53. Crawford is averse to the idea that the scope of applicability of Art. 4 of Protocol No. 4 is exclusively defined by Art. 1 of the ECHR, and, in particular, he contends that, ‘. . . collective expulsion of aliens is a serious breach of international law, and Article 4 is expressed as an absolute and non-derogable prohibition. As such, it must be interpreted narrowly and precisely. If any measure preventing groups of aliens from entering the territory of a Contracting State is prohibited, then the words of Article 4 cease to have meaning’: Crawford, ibid., at 349–50. In general, the concept of ‘limited jurisdiction’ has been endorsed by various arbitral tribunals; for example, in the Eurotunnel case, an arbitral tribunal (that consists of 5 members, including Crawford himself) held that ‘the Tribunal's jurisdiction is limited to claims which implicate the rights and obligations of the Parties under the Concession Agreement . . .’: Eurotunnel (The Channel Tunnel Group Ltd and France-Manche S.A v. The Secretary of State for Transport of the Government of the United Kingdom of Great Britain and Northern Ireland and le ministre de l’équipement, des transports, de l'aménagement du territoire, du tourisme et de la mer du Gouvernement de la République française), Partial Award, 132 ILR 1 (2007), para. 153 (emphasis added); see V. Vadi, Analogies in International Investment Law and Arbitration (2015), at 102–3.

73 Hirsi, supra note 3, paras. 77–8.

74 Ibid., para. 80.

75 See generally Giuffré M., ‘State Responsibility Beyond Borders: What Legal Basis for Italy's Push-backs to Libya?’, (2012) 24 International Journal of Refugee Law 692, at 693; Gammeltoft-Hansen, supra note 18, at 77; Frenzen N., ‘US Migrant Interdiction Practices in International and Territorial Waters’, in Ryan B. and Mitsilegas V. (eds.), Extraterritorial Immigration Control: Legal Challenges (2010), 375 at 393.

76 See also Chahal v. The United Kingdom, Decision of 15 November 1996, Application no. 22414/93, para. 80; See generally UN High Commissioner for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, January 2007, at 9 (footnote 42).

77 Hirsi, supra note 3, para. 148. The Court identified two aspects relating to alleged violation of Art. 3: 1) whether the applicants had been exposed to ‘the risk of inhuman and degrading treatment in Libya’; 2) whether the applicants had been exposed to ‘the risk of arbitrary repatriation to Eritrea and Somalia’: Hirsi, supra note 3, paras. 84–5, 138–9.

78 Ibid., at 60 (Concurring Opinion of Judge Pinto De Albuquerque) (footnote omitted).

79 Ibid., para. 156 (emphasis added).

80 Convention relating to the Status of Refugees, supra note 1.

81 North, supra note 2. The Supreme Court of the United States in Sale stated that ‘. . . both the text and negotiating history of Article 33 [of the Refugee Convention] affirmatively indicate that it was not intended to have extraterritorial effect’: Chris Sale, Acting Commissioner, Immigration and Naturalization Service, et al. v. Haitian Centers Council, Inc., et al., 509 U.S. 155, 113 S.Ct. 2549 at 2563 (1993).

82 See generally Klug and Howe, supra note 13, at 70.

83 UN High Commissioner for Refugees, UNHCR Note on the Principle of Non-Refoulement, November 1997, available at www.unhcr.org/refworld/docid/438c6d972.html (accessed 27 January 2015); See UN High Commissioner for Refugees, The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93, 31 January 1994, available at www.unhcr.org/refworld/docid/437b6db64.html (accessed 27 January 2015), para. 2; See Gammeltoft-Hansen, supra note 18, at 100.

84 See generally R.R. Churchill and A.V. Lowe, The Law of the Sea (1999), 208; 1982 Convention on the Law of the Sea, 1833 UNTS 2, Art. 92 (UNCLOS).

85 2000 Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transnational Organized Crime, 2241 UNTS 507, at Art. 8 (the Smuggling Protocol).

86 Ibid.

87 See Klein N., ‘The Right of Visit and the 2005 Protocol on the Suppression of Unlawful Acts against the Safety of Maritime Navigation’, (2008) 35 Denv J Int'l L & Pol'y 287, at 298–302; See generally Churchill and Lowe, supra note 84, at 214. In cases of piracy and unauthorized broadcasting, UNCLOS Arts. 105 and 109 respectively authorize a seizure of the vessel and arrest of persons on board.

88 Hirsi, supra note 3, para. 19.

89 Goodwin-Gill G. S., ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’, (2011) 23 IJRL 443, at 456.

90 Legomsky S. H., ‘USA and the Caribbean Interdiction Program’, (2006) 18 IJRL 677, at 678–79. Legomsky is skeptical about the possibility of having a fair refugee status determination process on board. He states that ‘. . . in theory a fair refugee status determination could possibly be made outside the country's territory. . . . however, the practical obstacles to a fair procedure in conjunction with interdiction are formidable’: ibid., at 686 (footnote 58).

91 Andrade P.G., ‘Extraterritorial Strategies to Tackle Irregular Immigration by Sea: A Spanish Perspective’, in Ryan B. and Mitsilegas V. (eds.), Extraterritorial Immigration Control: Legal Challenges (2010), 311 at 320 (footnote omitted).

92 Brouwer E., ‘Extraterritorial Migration Control and Human Rights: Preserving the Responsibility of the EU and its Member States’, in Ryan B. and Mitsilegas V. (eds.), Extraterritorial Immigration Control: Legal Challenges (2010), 199 at 211.

93 Ibid.

94 Giuffré, supra note 75, at 733.

95 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Dos A/56/10 Supplement No. 10, GA 56th Session (2001), available at legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf (accessed 11 February 2015) (ARSIWA).

96 Giuffré, supra note 75, at 694; See Gammeltoft-Hansen, supra note 18, at 139–40.

97 I thank an anonymous reviewer for the comments in relation to three accounts. For more details on the concept of due diligence as a principle of international law, see Barnidge R.P.P, ‘The Due Diligence Principle Under International Law’, (2006) 8 Int'l Community Law Rev 81 .

98 I thank an anonymous reviewer for the comments in relation to different fashions of joint patrolling.

99 See generally J. Crawford, State responsibility: the General Part (2013), 334–5; Art. 47(1) of ARSIWA: ‘Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act’.

100 J. Crawford, The International Law Commission's articles on state responsibility: introduction, text, and commentaries (2002), 272.

101 Crawford, supra note 99, at 405. It is worth noting the statement of Nikolai Ushakov who attempted to circumscribe the scope of complicity in relation to state responsibility: ‘. . . participation must be active and direct. It must not be too direct, however, for the participant then became a co-author of the offence, and that went beyond complicity. If, on the other hand, participation were too indirect, there might be no real complicity’: Yearbook of the International Law Commission 1978, Volume 1, UN Doc. A/ CN. 4/ SER. A/ 1978 (1978), at 238 (N.A. Ushakov's statement, at para. 11).

102 Andrade, supra note 91, at 320, 322.

103 I. Brownlie, System of the law of nations: State responsibility (1983), 191.

104 ARSIWA, supra note 95, at Art. 16.

105 Giuffré, supra note 75, at 725.

106 See generally M. Jackson, Complicity in International Law (2015), 150–3; See Case Concerning Application of the Convention on the prevention and punishment of the crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement of 26 February 2007, [2007] ICJ Rep. 43 (Advisory Opinions and Orders), para. 420.

107 Heijer M.D., ‘Europe beyond its Borders: Refugee and Human Rights Protection in Extraterritorial Immigration Control,’ in Ryan B. and Mitsilegas V. (eds.), Extraterritorial Immigration Control: Legal Challenges (2010), 169 at 194 (footnote omitted).

108 E.P. Aust, Complicity and the law of state responsibility (2011), 197, 219; Crawford, supra note 99, at 402–5; See generally Jackson, supra note 106.

109 Aust, supra note 108, at 197, 212; Crawford, supra note 99, at 402–3; Jackson, supra note 106, at 158.

110 Aust, supra note 108, at 209, 219, 226–30; Crawford, supra note 99, at 403, 405; See generally Jackson, supra note 106, at 155–7. See also Case Concerning Application of the Convention on the prevention and punishment of the crime of Genocide, supra note 106, para. 432. Jackson questions this dominant view by paying attention to the concept of ‘culpable omissions’, stating that ‘the other elements of a complicity rule will pull into the ambit of complicity particularly culpable omissions that contribute significantly to the commission of the harm and exclude those that do not’: Jackson, supra note 106, at 157.

111 Aust, supra note 108, at 267; Crawford, supra note 99, at 405–8; Crawford, supra note 100, at 148; See generally Jackson, supra note 106, at 159–61. However, Jackson argues that there is no consensus among scholars about the requirement of intent. Instead, Jackson prefers ‘a standard of knowledge’, that is, the ‘awareness with something approaching practical certainty as to the circumstances of the principal wrongful act’: Jackson, ibid., at 160–1.

112 For the pacta tertiis rule, see Arts. 34 and 35 of 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331.

113 Aust, supra note 108, at 267. Crawford remarks that ‘. . . this second element [intent] is sufficient to eclipse entirely the requirement of knowledge, as an overt intention to assist presupposes knowledge of assistance. It has arguably been accepted into the customary ambit of complicity by the International Court . . .’: Crawford, supra note 99, at 407.

114 Crawford, supra note 100, at 148.

115 Pascale A.D., ‘Migration Control at Sea: The Italian Case’, in Ryan B. and Mitsilegas V. (eds.), Extraterritorial Immigration Control: Legal Challenges (2010), 281 at 289–92. For more details on the operation of Frontex in relation to migration controls at sea, see Baldaccini A., ‘Extraterritorial Border Controls in the EU: The Role of Frontex in Operations at Sea’, in Ryan B. and Mitsilegas V. (eds.), Extraterritorial Immigration Control: Legal Challenges (2010), 229 .

116 The Bosnian Genocide, supra note 106, para. 421: ‘. . . there is no doubt that the conduct of an organ or a person furnishing aid or assistance to a perpetrator of the crime of genocide cannot be treated as complicity in genocide unless at the least that organ or person acted knowingly, that is to say, in particular, was aware of the specific intent (dolus specialis) of the principal perpetrator’.

117 See Barnidge, supra note 97, at 121; See Jackson, supra note 106, at 130.

118 Jackson, supra note 106, at 129 (footnote omitted).

119 J-F. Akandji-Kombe, Positive obligations under the European Convention on Human Rights, Human Rights Handbooks No. 7 (2007), Council of Europe, at 8, available at rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168007ff4d (accessed 18 September 2015).

120 Jackson, supra note 106, at 129–31.

121 Miller, supra note 29, at 1235.

122 Banković, supra note 19, para. 75.

123 O'Boyle, supra note 52, at 131.

124 Andrade, supra note 91, at 322 (footnote omitted).

125 Barnes R.A., ‘The Operation of Flag State Jurisdiction’, in Rothwell D.R. et al. (eds.), The Oxford Handbook of the Law of the Sea (2015), 310 at 311 (footnote omitted).

126 Ibid.; Churchill and Lowe, supra note 84, at 92–100.

127 UNCLOS, supra note 84, at Art. 32; See Churchill and Lowe, supra note 84, at 99; See also Barnes, supra note 125, at 312.

128 With regard to the definition of ‘other government ships operated for non-commercial purposes’, see J. Kraska, Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics (2011), 248.

129 The 2007 bilateral co-operation agreement between Italy and Libya stated that, ‘[m]ixed crews shall be present on ships, made up of Libyan personnel and Italian police officers, who shall provide training, guidance and technical assistance on the use and handling of the ships’: Hirsi, supra note 3, para. 19. Furthermore, the 2009 agreement stipulated, ‘[t]he two countries undertake to organize maritime patrols with joint crews, made up of equal numbers of Italian and Libyan personnel having equivalent experience and skills . . .’: Hirsi, supra note 3, para. 19.

130 Hirsi, supra note 3, para. 156; See generally Crawford, supra note 99, at 406.

131 Arguably, the decision in the Catan case supports the claim that a broader conception of complicity (based on the provision of significant ‘background support’ such as political, economic and military support) may be used to establish extraterritorial jurisdiction of the ECHR: Catan and Others v. The Republic of Moldova and Russia, Decision of 19 October 2012, Application no. 43370/04 18454/06 8252/05.

132 Issa, supra note 30, para. 71.

133 See Shaw, supra note 9, at 572–3; See Lawson, supra note 9, at 87.

134 For example, a former Australian Prime Minister, John Howard, once stated that, ‘[w]e will decide who comes to this country and the circumstances in which they come’: S. Clarke, ‘Liberals accused of trying to rewrite history’, Australian Broadcasting Corporation, 21 November 2001, available at www.abc.net.au/lateline/content/2001/s422692.htm (accessed 12 March 2015).

135 See E. Haddad, The Refugee in International Society: Between Sovereigns (2008), 201: ‘With the emerging human rights culture, a shift can be witnessed from an international society framed by sovereign impunity to an international society based on national and international accountability.’

136 1966 International Covenant on Civil and Political Rights, 999 UNTS 171 (ICCPR); 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 (CAT); C. Droege, ‘Detainees: Legal Framework, Non-Refoulement and Contemporary Challenges’, ICRC, available at www.icrc.org/eng/assets/files/other/irrc-871-droege2.pdf (accessed 22 January 2015), at 671–2; See UN High Commissioner for Refugees, UNHCR Note on the Principle of Non-Refoulement, supra note 83.

137 Delia Saldias de Lopez v. Uruguay, UN Doc. CCPR/C/13/D/52/1979, UN Human Rights Committee (29 July 1981), available at www.unhcr.org/refworld/docid/4028d4954.html (accessed 12 March 2015), para. 12.3; Committee Against Torture, Conclusions and Recommendations of the Committee against Torture: United States of America, CAT/C/USA/CO/2 (Advance unedited version), 36th session (18 May 2006), available at www.state.gov/documents/organization/133838.pdf (accessed 12 March 2015), para. 20; See generally J.H.A. v. Spain, CAT/C/41/D/323/2007, UN Committee against Torture (21 November 2008), available at www.unhcr.org/refworld/docid/4a939d542.html (accessed 14 April 2015).

* Ph.D, Faculty of Law, University of Victoria, BC, Canada []. I would like to thank Professor Donald Galloway for his detailed comments on the article as well as assistance with English expressions and idioms. I also thank Professor Scott Watson and the anonymous reviewers for their comments on the article. This article is a revised and extended version of a paper prepared for the International Human Rights Law course at the University of Victoria in April 2013, titled ‘The Principle of Non-Refoulement on the High Seas’.

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