“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.” - Art. 33 of the UN Refugee Convention
Enshrined in the 1951 Refugee Convention and considered a rule of customary international law, the principle of non-refoulement is an essential component of asylum and international refugee protection that safeguards migrants, whatever their status, from forcible return to countries where they may be exposed to persecution. In recent years, however, the principle has faced barriers as States have attempted to deal with increasing migration flows by intercepting vessels on the high seas and preventing them from reaching their destinations. This process, sometimes aided by bilateral agreements between individual countries, places the principle of non-refoulement at risk if migrants onboard are not first individually screened for refugee status. Furthermore, the location of these interceptions, on the high seas or territorial waters, has influenced States’ opinions of how, if and when they should be held accountable for violations of their obligations under international law.
The European Court of Human Rights highlighted this problem in its 2012 decision Hirsi v. Italy, which examined a 2009 incident where the Italian coastguard intercepted approximately 200 migrants thirty-five nautical miles south of Lampedusa, Italy (on the high seas) and returned them to Tripoli without ever informing the migrants of their final destination or screening the group for possible asylum seekers. The Court noted that the Italian Minister of the Interior had stated that the operation was an effective push-back policy resulting from 2009 bilateral “friendship” agreements concluded with Libya. Although the case only dealt with an operation led by Italy, the agreements referenced by the Minister also alluded to organized joint patrolling operations by mixed crews of Libyans and Italians, on ships supplied by Italy in both international and Libyan territorial waters.
Fighting the admissibility of the case, Italy contended that its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms only applied within the traditional conception of jurisdiction: its borders and territorial waters. The Court, however, disagreed. Because the events in question took place on board Italian ships flying under the Italian flag (under the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying), and by crews composed of Italian military personnel, the Court found that the applicants were under continuous de jure and de facto control of Italian authorities. As a result, the events fell within Italy’s jurisdiction. This ruling is extremely important as it clarifies that when a Member State takes passengers aboard its ships, even outside its territorial waters, it is still under the jurisdiction of the Convention and obligated to guarantee the rights and freedoms found therein.
With the affirmative finding of jurisdiction over the case, the Court went on to determine that Italy violated its obligations under the European Convention to prohibit torture (Article 5, under which the right to non-refoulement is evaluated) and to not collectively expel migrants (Article 4 of Convention Protocol 4). In sum, the court illustrated that Member States must 1) not return migrants, including those intercepted on the high seas, to a country where they are at risk of being subject to cruel or inhuman treatment; 2) must individually, on a case-by-case basis, screen migrants to determine if they are at risk of such treatment; and 3) must afford them access to a process to determine their rights and provide them the opportunity to effectively exercise their rights. Moreover, the Court’s strong language acknowledging shifting migration trends was a substantial step forward in protecting the rights of migrants and refugees.
At the same time, however, questions still remain as to Italy’s obligations under the Convention in relation to the joint patrol practices alluded to in the bilateral agreements, whereby Italy supplies Libya with ships and men in order to help prevent migrants from leaving the twelve nautical miles of Libyan territorial waters. Such practices pose serious human rights and jurisdictional issues. Although Italy would most likely contend that such actions do not come under the jurisdiction of the Court because they occur in Libyan waters and not on the high seas, the Court’s jurisprudence shows that this fact does not end the discussion.
To begin, it is important to note that the Court itself has frequently stressed (and reiterated in Hirsi) that the Convention is a “living instrument which must be interpreted in light of present-day conditions.” The Court is to take into account the purpose and meaning of the provision at hand and ensure that the Convention is interpreted and applied in a manner that makes its guarantees practical and effective, not merely theoretical. Bearing in mind that the Court acknowledged changing migration trends in Hirsi and factored them into its understanding of the Convention, it is possible that it would find a jurisdictional nexus if analyzing the joint patrols taking place in Libyan waters; especially if they were to continue despite Hirsi.
In fact, the Court has laid the groundwork for an expanded understanding of jurisdiction by indicating that the prohibition on the circumvention of human rights obligations is a factor in forming a basis for jurisdiction. In Issa and Others v. Turkey, the Court wrote that “accountability in such situation[s] stems from the fact that Article 1 of the Convention [pertaining to jurisdiction] cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory.” Although in that case the Court ruled there was not enough evidence to establish jurisdiction (finding that there was not enough evidence to meet the “beyond a reasonable doubt” standard regarding whether Turkish troops had conducted operations in a village in northern Iraq where they were accused of the unlawful arrest, ill-treatment and subsequent killings of villagers) it stressed that a State may be held accountable for violations of the Convention in the territory of a third State if they are committed by agents under the authority and control of the original State. Thus, if the evidentiary basis can be established, the actions of Italian officers in Libyan territorial waters may invoke jurisdiction under the Convention.
Crucial to establishing this evidentiary connection between the State Party and their agents is the attribution of responsibility for actions to the State Party itself. Where written bilateral agreements exist, it may be much easier to establish this connection. The Italian authorities onboard these ships, as well as the assets (money and ships) provided to Libya by Italy may function as a basis for exercising the Court’s jurisdiction. Although it would not be established by exclusive de jure and de facto control as in Hirsi - considering the ships would not be flying the Italian flag or on the high seas and thus not subject to the law of the sea in the same regard – such actions still involve the Italian state. Certain actions such as the purchasing and building of ships and the training of men would all occur within and by Italy, forming a substantial connection to the State.
This connection is extremely important considering that past decisions by the Court (such as Xhavara v. Italy and Medvedyev and Others v. France) have found jurisdiction in relation to vessels on the high seas based on the de facto control of only one State Considering, however, the roles of both Italy and Libya in these patrols, it is possible that the Court could break new ground in finding joint de facto control. The Court addressed the issue of dual responsibility, albeit in relation to military actions, in Ilascu and Others v. Moldova and Russia. Brought by four Moldovan nationals, the case concerned acts committed by authorities of the “Moldavian Republic of Transdniestra (MRT),” a region of Moldova which claimed its independence but was not recognized by the international community. The applicants alleged argued 1) that Moldova was responsible under the Convention for not taking appropriate measures to ensure their protection and 2) that Russia was responsible for aiding the separatist regime. The Court agreed with the applicants and found that Moldova, although it did not exercise effective control over the area where MRT operated, was under a positive obligation to secure the applicants their rights under the Convention. Moreover, because of the continuous and uninterrupted link of responsibility on the part of Russia for the applicants’ fate - as a result of its policy of collaboration and support for the MRT and its lack of effort to prevent the violations committed - the applicants fell within the jurisdiction of Russia. Though the case involved military, as opposed to migration control actions, it is likely that a similar reasoning would apply in relation to Italy as it did with Russia.
Furthermore, although Libya cannot be held responsible under the Convention because it is not a state party, this does not preclude a finding of Italy’s responsibility for its collaboration with Libya. In joint actions, each state is responsible for committing violations of international law. As Special Rapporteur J. Crawford of the International Law Commission stated on the topic of the plurality of responsible states in his “Commentary to the Draft Articles on State Responsibility” (p. 314), “each State is separately responsible for the conduct attributable to it, and the responsibility is not diminished or reduced by the fact that one or more other States are also responsible for the same act.” Thus, Italy could be held responsible for its role in assisting the actions taken within Libyan waters.
Moreover, it is clear that human rights responsibilities are at play in these situations., Referencing the period in question for the Hirsi case, i.e. 2009, Human Rights Watch noted that Libya has a “dismal record of abuse and mistreatment of migrants caught trying to flee the country by boat and cannot seriously be regarded as a partner in any scheme that claims to protect refugees.” Unfortunately, the news is still dismal today: as Amnesty International notes, “[s]ince the fall of the al-Gaddafi government, the human rights situation for asylum-seekers, refugees and irregular migrants in the country has deteriorated.” Libya is often not the country of origin of these migrants but rather a site of departure along the path to Europe. Because Libya has no asylum system, all returned migrants are viewed as irregular migrants and not given the opportunity to express their claims for asylum. By aiding this process, Italy is helping return people to a country where they may be subject to persecution or cruel, degrading and inhumane treatment. This is especially startling considering that UNHCR estimates that in 2008, 75% of people arriving to Italy by boat were asylum seekers and that 50% of those seeking asylum were eventually granted some form of protection.
Hopefully, Italy will rethink its actions and bilateral agreements and recognize that migration issues must be dealt with in a context of respect and adherence to human rights and refugee law. Although Italian authorities have made recent declarations that the “push-back” policy will no longer be undertaken, only time will tell if clear steps are actually made to end the practice. The need to address the issue of migration does not give a country leave to take whatever means possible to deal with the problem.