A. Introduction and Exposition of Facts
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.Footnote 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.Footnote 2
According to available records, between 6 May and 6 November 2009, 834 persons were diverted to Libya in the framework of the joint police operations established by the 2007 Protocols and enforced by the 2009 Executive Agreement concluded by Italy and Libya with the purpose of strengthening their cooperation in the fight against irregular migration to Europe.Footnote 3 Intercepted persons were not channelled into identification processes and refugee status determination paths to ascertain whether they would be in need of international protection.
The alleged violations of the European Convention of Human Rights (ECHR)Footnote 4 included the prohibition of torture and other inhuman or degrading treatments (Article 3); the right to an effective remedy (Article 13), and the prohibition of collective expulsions of aliens (Article 4 of Protocol 4 to the ECHR).Footnote 5
In particular, relying on Article 3 (‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’) the applicants claimed ‘they had been returned to a country where there were sufficient reasons to believe that they would be subjected to treatment in breach of the Convention.’Footnote 6 The applicants complained not only that migrants and refugees were victims of discriminatory and violent treatments in Libya, but also that they were at risk of subsequently being repatriated to their countries of origin by means of readmission agreements. They therefore challenged the Government's contention that their request not to be handed over to Libyan authorities could not be interpreted as a call for international protection.Footnote 7
Moreover, by invoking Article 4 of Protocol 4 to the ECHR—whereby ‘collective expulsions are prohibited’—the applicants maintained that they were subjected to an atypical collective expulsion devoid of any legal basis. The primary purpose of this provision is to prevent summary forced removal of a group of aliens without examining their individual circumstances. In contrast, the Government sought to argue that Article 4 of Protocol 4 was not relevant to the present case as this Article only covered situations where there was an expulsion of people who had crossed the national border, and the very point of push-backs was as a measure to refuse entry into national territory.Footnote 8 The Court rejected this argument and found that Article 4 of Protocol 4 was also applicable.
Finally, the applicants argued that the fact that they were afforded neither the chance to appeal before Italian authorities against their return to Libya, nor the opportunity to allege violations of Article 3 of the Convention and Article 4 of Protocol 4, led to a breach of the right to an effective remedy under Article 13 of the Convention.
The Hirsi judgment attains greater prominence since it is the first case in which the Court unanimously finds a European State in violation of human rights of migrants and refugees intercepted on the high seas and returned to a third country in the absence of any procedural safeguards. By endorsing the credo that ensuring access to protection to people at sea (therefore without any territorial limitation) is a legal and humanitarian imperative, this landmark judgment could serve as a guidance for other States within or outside the Council of Europe in order to re-modulate their interdiction operations along the lines and in consonance with the standards of refugee and human rights law. Indeed, for the first time the Court has been called to decide on arguably the most controversial policy ever adopted by governments to combat illegal immigration by sea, a policy that had paved the way to a judicial vacuum in which Italy seemed able to act without any international and European legal constraint.
Refugees fleeing persecution and gross human rights abuses in their home countries frequently travel alongside economic migrants, and are often unable to obtain identity and travel documents, thus running the risk of being assimilated with common undocumented migrants violating formal immigration control requirements.Footnote 9 Outsourcing protection responsibilities on the grounds that migration controls took place extraterritorially elevates the risk of insulating the intercepting countries from public and legal accountability. As States may be held responsible, under the ECHR, for any action or omission that brings about a breach of their human rights obligations, their interception and return programmes should always be informed by this understanding.
In the present case, the Court did not doubt the exercise of Italy's jurisdiction under Article 1 of the Convention, as the applicants, for a 10-hours average, were under the full control of the Italian authorities, which autonomously intercepted and diverted seaborne refugees back to Libya.Footnote 10 Although more complex operational situations may come about, the legacy of the Court in Hirsi—fitting all those situations of displacement of migration controls—is unmistakable: notwithstanding the uneasiness in finding out the ‘ “jurisdictional link” for the applicability of human rights obligations on the side of the controlling State’,Footnote 11 the latter cannot be relieved of its responsibility toward thousands of migrants and refugees where it chooses to operate beyond territorial frontiers. Reasoning the other way round would be tantamount to accepting the paradox that individuals who are in principle qualified for international protection do not find a State responsible for its provision.Footnote 12 And the duty to ensure non-refoulement to countries where the life and liberty of the returnees may be put in danger attaches to any State that has ratified the ECHR and the Refugee Convention.Footnote 13
As corroborated by the jurisprudence of the Court and the practice of UN human rights treaty monitoring bodies, although the notion of ‘jurisdiction’ is mainly territorial, in exceptional circumstances, States’ obligations may also be engaged when they exercise jurisdiction vis-à-vis individuals who fall under their effective ‘control and authority’. In Hirsi, the Grand Chamber continues its progress away from a territorial approach to jurisdiction by extending it to interceptions on the high seas, which prevent vessels from entering zones where greater protection indubitably attaches. Thus the Hirsi case continues to challenge the traditional stance that the responsibility to protect human rights is essentially territorial.Footnote 14
Although the Hirsi judgment explores a range of legal questions, this comment focuses on two main issues: a) the extraterritorial interpretation of the legal notion of ‘jurisdiction’; and b) the level of protection owed to refugees intercepted on the high seas and returned to third countries without an assessment of their protection claims. The possible legal and political consequences of the Hirsi decision on current and future developments in human rights and refugee law are also examined.
B. Decision of the Court and its Reasoning
On 15 February 2011, the Chamber to which the case was assigned relinquished jurisdiction in favour of the Grand Chamber. A number of NGOs and international human rights and refugee organizations were given leave to intervene in the proceedings as third parties by presenting written observations. The judgment was handed down on 23 February 2012. The Court held unanimously that:
i) The applicants were within the jurisdiction of Italy for the purposes of Article 1 of the Convention;
ii) There had been a violation of Article 3 on account of the fact that the applicants were a) exposed to the risk of ill-treatment in Libya and b) to the risk of repatriation to Somalia and Eritrea;
iii) There had been a violation of Article 4 of Protocol 4;
iv) There had been a violation of Article 13 taken together with Article 3 of the Convention and Article 4 of Protocol 4.
The ensuing analysis on the Hirsi judgment is conducted against the backdrop of Articles 3 and 13 of the Convention, and Article 4 of Protocol No 4. For the sake of consistency, the various allegations of the applicants’ rights will be dealt with in the order considered by the Grand Chamber.
1. Jurisdiction ratione loci
A preliminary issue concerned the jurisdiction ratione loci of the Court. In human rights treaties, ‘jurisdiction’ refers to an ‘actual exercise of control and authority’ by a State over persons or territory.Footnote 15 Every time a State exercises this power, it must protect and ensure the rights of people under its control. Whilst in Hirsi the Court dealt with the question of the extraterritorial interpretation of ‘jurisdiction’ somewhat briefly, it did develop its previous jurisprudence by affirming that the ratione loci scope of the Convention extends also to the high seas, provided that the State exercises effective control and authority through its organs over the individuals concerned. And in the instant case, the Court held the respondent State exercised jurisdiction.Footnote 16
Pursuant to Article 1 of the ECHR, ‘The High Contracting Parties shall secure to everyone [therefore even refugees, stateless persons, and undocumented migrants] within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ Since the phrase of Article 1 ‘under its jurisdiction’ is not geographically limited, it could be interpreted as to exceed the territorial borders of the State in question. However, it is beyond doubt that the concept of ‘jurisdiction as a threshold criterion of responsibility’ for human rights breaches is awkward, especially when complaints stem from extraterritorial actions or omissions.Footnote 17
The reasoning of the Court in Hirsi has contributed to clarifying the terms of an enduring debate on the geographical scope of the Convention by enhancing an understanding of jurisdiction as applicable also outside the territory covered by the Council of Europe Member States. A heated debate on the extraterritorial applicability of the ECHR has unfolded in the wake of the Bankovic case where the Court rejected the responsibility of the respondent States with regard to the NATO bombing of Serbia, a country that was considered as not falling within the legal space of the ECHR Contracting Parties.Footnote 18
However, the Court has accepted the extraterritorial jurisdiction and therefore the consequent responsibility of governments for actions performed by their authorities outside their borders in several other cases concerning three different circumstances:Footnote 19 cases ‘where the acts of State authorities produced effects or were performed outside their own territory’;Footnote 20 cases in which a contracting party ‘exercised effective control of an area outside its national territory’ as a consequence of military action;Footnote 21 cases involving the activities of a contracting party's ‘diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State’.Footnote 22
According to Milanovic, cases of extradition and expulsion resulting in refoulement should not be confused with the issue of extraterritorial application of human rights treaties,Footnote 23 since they do not concern the actual exercise of a State's jurisdiction abroad. Thus, liability is clearly incurred if a violation is committed with regard to a person who is on the territory of the respondent State, and clearly within its jurisdiction.Footnote 24
Although in Hirsi the Court reaffirms that the jurisdiction of a State is essentially territorial,Footnote 25 it upholds legal precedents by endorsing the view that for extraterritorial jurisdiction to be engaged, ‘a direct and immediate link’Footnote 26 bringing the rights and freedoms recognized by the Convention under the actual power of the State itself—is sufficient.Footnote 27 Therefore, where exceptional circumstances exist justifying a finding by the Court that the State extraterritorial jurisdiction is engaged, it has to be determined with reference to the full and exclusive control exercised by the State over a prison or ship.Footnote 28
To translate this debate into the issue of the protection owed to people intercepted on the high seas while striving to touch the European soil, the Court in Hirsi is eager to show that its decision is consistent with its previous jurisprudence. For instance, in Al-Skeini v UK, it recognized that full and exclusive control over individuals was sufficient for engaging the extraterritorial jurisdiction of the acting State.Footnote 29
Likewise, in the 2010 Medvedyev and Others v France decision, the Grand Chamber considered whether the jurisdiction of France could be entertained in the case concerning crew members on a Cambodian ship intercepted by the French Navy near Cape Verde after obtaining the assent of the Cambodian government through a diplomatic note.Footnote 30 The significance of this decision is due to the fact that it is one of the few judgments of the Court addressing interdiction of vessels on the high seas and the only one determining a breach of the Convention by the interdicting State. Since France had continuously exercised full and exclusive control over both the Cambodian ship and its crew, even ordering the rerouting of the boat, the crew remained de facto, from the time of its interception, under the control of French authorities, falling within France's jurisdiction for the purposes of Article 1.Footnote 31 In its reasoning, the Court also added that:
The special nature of the maritime environment […] cannot justify an area outside the law where ships’ crews are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction, any more than it can provide offenders with a ‘safe haven’.Footnote 32
In spite of the fact that the interception occurred in international waters, the Italian government, in Hirsi, had never disputed the jurisdiction of the Court under Article 1 of the Convention. The applicants were, indeed, put on board ships whose crews were composed of Italian military personnel that exercised a ‘continuous and exclusive de jure and de facto control’ over the intercepted people.Footnote 33 And, in line with the Medvedyev principle, this deduction would be valid even in the circumstance in which the passengers were simply escorted to Tripoli.
By stressing that the issue of extraterritorial jurisdiction must be resolved with reference to the particular facts,Footnote 34 the Grand Chamber held that intercepted individuals were under the complete, effective, and exclusive control of Italian organs. Therefore, it rejected the Italian government's argument that it ‘was not responsible for the fate of the applicants on account of the allegedly minimal control exercised by the authorities over the parties concerned at the material time’.Footnote 35 As the Court put it:
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.Footnote 36
Thus it concluded that Hirsi constituted ‘a case of extra-territorial exercise of jurisdiction by Italy capable of engaging that State's responsibility under the Convention’.Footnote 37
2. The extraterritorial applicability of the principle of non-refoulement
By referring to its previous case-law in the context of expulsions, the Court confirmed that the prohibition of torture implies an obligation not to remove the individual in question where substantial grounds have been shown for believing that the returned person would face a real risk of treatments banned by Article 3.Footnote 38 Thus, the fact that Italian authorities pushed intercepted refugees back to Libya without assessing their protection claims, exposed these persons to direct and indirect refoulement, because of the risk of inhumane and degrading treatments in Libya and in their countries of origin, Eritrea and Somalia.Footnote 39
According to the applicants, their plea not to be handed over to Libyan authorities should have been interpreted as a request for international protection, especially in the light of the fact that no procedure to identify the intercepted individuals and to gather information about their personal situations was deployed aboard the ships.Footnote 40 The two different aspects of Article 3 are, thus, addressed separately by the Court.
While the applicability of the principle of non-refoulement to protection seekers claiming asylum at the border is quite evident, the applicability of this principle to people intercepted at sea during offshore migration controls is less conclusive. To shed light on this issue, it helps to go back to the views adopted by the Court in previous cases. In Xhavara and Others v Italy and Albania, the Court held that Italy had a responsibility toward intercepted individuals during the performance of border surveillance measures on the high seas—and a fortiori for the protection of the non-refoulement principle.Footnote 41 The case was declared inadmissible for non exhaustion of domestic remedies. Nonetheless, the Court clarified that the sinking of a boat carrying Albanian migrants following a collision with an Italian warship—deployed in the framework of an agreement authorizing the Italian navy to board and search Albanian vessels—could not exclude the international responsibility of Italy.Footnote 42
Hirsi extends the decision in Xhavara in so far it is the first case in which the Court was called on to deal with persons claiming refuge against refoulement on the high seas, further away from the territory of a contracting party. In Xhavara, Albanians did not seek such a protection, and as a consequence, the Court did not investigate what obligations Italy had in this respect. But it is beyond doubt that in the 2009 push-backs, individuals in distress at sea possessed at least a right to be transferred to the mainland to have their protection claims assessed. Indeed, they were, de facto, under the actual control of Italian authorities, which were, therefore, in the position to either protect or affect their rights. In Hirsi, the Court had the possibility to further develop this point by commenting on positive human rights obligations incumbent upon States during and after naval interdiction.
Moreover, by pointing up that the risk assessment must be made at the material time at which removal takes place, the Court is clear in maintaining that Italy ‘knew or should have known’ that migrants would be exposed to treatments proscribed by the Convention, and that they would not be granted access to international protection in Libya.Footnote 43 Since numerous and well-detailed reports of NGOs and international organizations painted, even before May 2009, a miserable picture of the human rights condition in Libya, Italian authorities, in full knowledge of the facts, exposed the applicants to the risk of prohibited treatments.Footnote 44
The Court also reaffirmed the absolute nature of the prohibition of indirect refoulement by imposing upon the sending State the obligation to verify—before removal takes place—whether the intermediary country ensures adequate guarantees against the removal of the persons concerned to their countries of origin. This duty becomes even more compelling when the receiving country is not a party to the ECHR.Footnote 45 Once again, the UN High Commissioner for Refugees (UNHCR) and several reports of human rights NGOs clearly depict the risks for migrants and refugees who are returned to Somalia and Eritrea after irregularly leaving their home countries.
The Court tried to establish whether Italian authorities could reasonably expect that Libya was able to offer safeguards against arbitrary repatriation. This question was answered in the negative on the ground that Libya had not ratified the Refugee Convention, did not possess any form of asylum and protection mechanisms, and had a negative attitude toward the presence of the UNHCR in Tripoli, by denying any value to the status of refugee. The Grand Chamber therefore concluded that the applicants were exposed to the risk of arbitrary repatriation, since Italian authorities knew or should have known that Libya did not provide any guarantees against such a risk.Footnote 46
By stating that the return by Italy of interdicted migrants and refugees to Libya, in the absence of any procedural safeguards, was impermissible, the Court built on an emerging trend in international human right law. In several instances, the UN human rights treaty monitoring bodies have endorsed the extraterritorial relevance of the prohibition of refoulement,Footnote 47 but only recently the Committee against Torture has specifically addressed the issue of the applicability of Article 3(1) of the Convention in situations of non-refoulement at sea.Footnote 48 In the 2008 J.H.A. v Spain (Marine I) case, the Committee against Torture found that the responsibility of the respondent State with regard to non-refoulement was a consequence of both Spain's interdiction programme and the extraterritorial examination of asylum claims.Footnote 49 The case was declared inadmissible as the complainant was not properly authorized to represent the alleged victims. Nonetheless, the Committee emphasized the responsibility of Spain as it exercised control over the intercepted people from the outset—by providing assistance in the context of search and rescue after receiving the distress call from the vessel—and throughout their detention in Mauritania and repatriation process. In issuing its final views, the Committee against Torture:
Recalls its General Comment No 2, in which it states that the jurisdiction of a State party refers to any territory in which it exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law. […] It considers that such jurisdiction must also include situations where a State party exercises, directly or indirectly, de facto or de jure control over persons in detention […]. In particular, the State party exercised, by virtue of a diplomatic agreement concluded with Mauritania, constant de facto control over the alleged victims during their detention in Nouadhibou. Consequently, the Committee considers that the alleged victims are subject to Spanish jurisdiction […] (emphasis added).Footnote 50
The similarity with the Court's reasoning in Hirsi is clear.
a) Brief note on EU law
As the Court acknowledges in its judgment, the prohibition of refoulement is today explicitly recognized also by Article 19(2) of the EU Charter of Fundamental Rights (CFR), which reads that ‘No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to death penalty, torture or other inhuman or degrading treatment or punishment.’Footnote 51 The ‘Explanations’ to the Charter state that Article 19 incorporates the case law of the ECtHR regarding Article 3 of the relevant Convention.Footnote 52
The judgment of the Court is also in line with the EU Schengen Border Code,Footnote 53 which in its Preamble refers to the rights and principles recognized by the EU CFR. While Article 3 sets forth that the Code is to be applied without prejudice to ‘the rights of refugees and persons requesting international protection, in particular as regards non-refoulement’, Article 5(4)(c) allows for derogation to normal entry criteria on account of humanitarian grounds or because of international obligations.
The Schengen Border Code is an EU migration law instrument of special significance by virtue of its application in extraterritorial immigration control scenarios.Footnote 54 It describes the frontier in geographical terms (Article 2(2)) and defines ‘border guards’ as public officials performing their surveillance functions ‘along the border or the immediate vicinity of that border’. At the same time, when outlining the different control devices, the ratione loci of the Code seems to exceed the territorial perimeter of EU Member States, since extraterritorial controls, either in airports, which do not hold the status of international airports, or in the territory of a third country are envisioned as possible solutions.Footnote 55
Accordingly, the Court attached particular weight to the content of a letter written on 15 May 2009 by Mr Jacques Barrot, Vice-President of the European Commission, called to elaborate on the material scope of application of the Schengen Border Code.Footnote 56 He argued that Italy-Libya push-backs amounted to border surveillance operations falling within the purview of the Code by virtue of Article 12 whereby border surveillance measures are aimed to prevent unauthorized border crossings. Therefore, in the wake of the Commission's reasoning, where partaking in interception activities, Italy, as an EU Member State, should always comply with its international obligation of non-refoulement as required by the ECHR, the CFR, and the Schengen Border Code, whether interdictions are conducted in its territorial waters or on the high seas.Footnote 57
3. Extraterritorial applicability of the prohibition of collective expulsions
a) The traditional approach of the Court to collective expulsions
Where the consequences of the Grand Chamber's ruling are even more far-reaching is in respect to the interpretation of Article 4 of Protocol No 4. The Italian Government insisted on the fact that the protection afforded by Article 4 of Protocol 4 was not applicable in the circumstances, since expulsion can be carried out only in respect of individuals who already are in the national territory of the returning State, or who have illegally crossed the frontier.Footnote 58 But as the applicants pointed out, they were on board Italian vessels, which were considered, in Italian law, as Italian territory, and as such they were undoubtedly under Italian jurisdiction.
Article 4 of the 1963 Fourth Protocol to the ECHR prescribes the prohibition of collective expulsions. Only more recently, this principle has been embodied also in EU law through its articulation in Article 19(1) of the EU CFR. In the 2001 Xhavara case, concerning the death of 58 Albanians drowned as a consequence of the collision of their motorboat Kates I Rades with an Italian warship that was attempting to prevent the migrants from disembarking on national territory—the complaint of violation of Article 4 of Protocol 4 was rejected on the ground of incompatibility ratione personae. Footnote 59 Thus, in Hirsi the Grand Chamber had to examine for the first time a situation in which the summary removal occurred outside the territorial boundaries of a contracting party.
Though Article 4 of the Protocol, according to which ‘collective expulsions are prohibited’, seems to confer a collective right upon aliens, all Contracting Parties have accepted the jurisdiction of the Court to adjudicate individual petitions arising from the Protocol. In the Court's view, collective expulsion is to be understood as ‘any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group’.Footnote 60
Whether a group expulsion is enforced after either an ‘objective and reasonable’ case by case review or on a collective basis is a decisive procedural criterion for determining whether Article 4 of Protocol 4 applies. Individual review, however, should not be a mere formality to elude the prohibition of mass expulsions, and all relevant facts must be singly taken into account. The Court has always been keen in stressing the salience of a fair expulsion from the viewpoint of the procedure. Additionally, the requirement of ‘objective and reasonable’ review must be extended to any alien ‘irrespective of whether his expulsion in actual facts is accompanied by the expulsion of other aliens in a comparable situation’.Footnote 61
In order to grasp the scope of Article 4 of Protocol 4, it should be observed how initially the Court manifested a certain reluctance toward collective expulsion claims. For instance, in a number of cases, it considered particularized decision-making sufficient for justifying expulsion.Footnote 62 The first and only time in which the Court has favoured an applicant claiming to be the target of a collective expulsion was in the Conka v Belgium case.Footnote 63
The Conka family belonged to Slovakia's Roma minority which was victim of skinhead violence in its home country. The Conkas fled to Belgium where they immediately applied for asylum, but the government served them with an expulsion order along with 70 other Romani asylum-seekers who were all repatriated to Slovakia. Putting aside its deferential approach, the Court declared a Member State responsible for a collective expulsion of a group of aliens. Indeed, upon their arrival at the police station, the concerned persons were served with an expulsion decision while a few hours later they were transferred to a holding camp, and then sent back to Slovakia. The fact that they were not granted the possibility to fulfil their asylum procedures and to contact a lawyer backed the Court's position that:
Irrespective of the formal appearance of the decisions that had been produced, it could not be said that there had been ‘a reasonable and objective examination of the particular circumstances of each of the aliens forming the group’ in the instant case.Footnote 64
The suspicion that expulsion might have been collective was cemented by a series of factors: first, prior to the applicants’ expulsion, political authorities gave instructions for the implementation of operations of that kind; second, all the aliens involved in the deportation were required to attend the police station at the same time and were served with an expulsion order expressed in identical terms; third, the asylum procedure was not fully completed and not all aliens had the possibility to consult with a lawyer. Hence, also a violation of Article 13 of the ECHR (right to an effective remedy) taken together with Article 4 of Protocol 4 was recorded.
(b) A teleological interpretation of the prohibition of collective expulsions
To what extent has the Hirsi judgment contributed to refining and expanding the scope of protection afforded by Article 4 of Protocol 4? It is to be established, first, whether the prohibition of collective expulsions has a purely territorial connotation, or whether it can be invoked also with regard to operations on the high seas, which are meant to interdict access to Italy's mainland. Rejecting Italy's contention that access to the Italian territory was a conditio sine qua non for engaging its responsibility, the Court concluded that Italian vessels could be assimilated to the Italian territory as set forth in Article 4 of the Italian Code of Navigation. Thus, their disembarkation in Libya was the epilogue of an action directed to remove intercepted persons from a place that was considered to be ‘Italian territory’. But, even where Italian ships are not considered as ‘Italian territory’, the application of Article 4 of Protocol 4 can also be inferred from a functional and teleological interpretation of the norm.
In deciphering the content of Article 4, the Court relied on Article 31 of the Vienna Convention on the Law of Treaties (VCLT) whereby a treaty must be interpreted according to the ordinary meaning to be given to the terms in their context and in the light of its object and purpose. Thus, a purposive interpretation reveals how the primary goal of this norm is to prevent States from removing aliens without examining their individual circumstances.Footnote 65 Considering, besides, that neither in the text of Article 4 of Protocol 4 nor in the travaux préparatoires explicit reference to the notion of ‘territory’ was made, nothing thwarted the extraterritorial applicability of this provision.Footnote 66 Such a finding assumes contingency also in the light of the theory whereby the Convention is to be interpreted as a living instrument accommodating the elements of the new migratory patterns. Otherwise, a disparity of treatment would occur with regard to people travelling by land and people taken in international waters while travelling by sea, thus making the guarantees of the Convention illusory and selective rather than ‘concrete and effective’.Footnote 67
Although the notion of jurisdiction was mainly territorial, it could be engaged beyond national territory in exceptional circumstances—such as interception on the high seas—thus obliging States to respect the rights of the Convention. It followed that restricting the scope of application of the prohibition of collective expulsions only to removals from the territory ‘would go against the principle that the Convention must be interpreted as a whole’ promoting internal consistency and harmony among its provisions.Footnote 68
Due to the lack of the preliminary preparatory steps consisting in the identification and assessment of the individual claims of the returnees, push-backs amounted to ‘substantially collective’ removals, in particular considering that according to the drafters of Protocol 4, the word ‘expulsion’ should be interpreted ‘in the generic meaning, in current use (to drive away from a place)’.Footnote 69 Such a definition, contained in the Section relating to Article 3 of Protocol 4, could be applied, according to the Court, also to Article 4 of the same Protocol.Footnote 70
The typically ‘procedural’ character of the prohibition of collective expulsions depended on the ultimate aim of this norm, regardless of where and how return measures are executed. In Hirsi the Court found that the applicants had been carried back to Libya in the absence of identification and examination of protection claims, under the control of a crew not trained in conducting interviews, and without legal advisors or translators on board the intercepting military vessels. In light of this, it concluded that the forced removal of the applicants to Libya on 6 May 2009 amounted to a collective expulsion in breach of Article 4 of Protocol 4.
4. Extraterritorial applicability of the right to an effective remedy
In the Hirsi judgment, the Court also found the Italian Government in breach of Article 13 in combination with Article 3 of the Convention and Article 4 of Protocol 4.Footnote 71 Given the particular circumstances of the applicants, it was clear that they did not have the slightest chance to lodge a claim before a national Court to challenge the decision to divert them to Libya. So the question the Grand Chamber needed to address was: were aliens, including undocumented migrants and refugees who had not managed to enter the territory of the destination country, entitled to have access to an effective remedy against the return decision?
Over the years, the Court has developed the requirement of effective remedies at the national level against the potential effects of a decision of expulsion in the light of Article 3. It is widely accepted that the principle of non-refoulement and the right to an effective remedy are closely linked. Since non-refoulement to torture can only be guaranteed if the persons concerned can claim access to official proceedings to investigate the circumstances of the case in question, the right to an effective remedy can be considered implicit in Article 3 of the ECHR.Footnote 72
In the Abdolkhani and Karimnia v Turkey decision, the Court established a violation of Article 13 as a consequence of the lack of a formal return decision, which consequently deprived applicants of their right to seek a procedural review of the expulsion order, to receive an individual examination of their claims, and to obtain legal assistance.Footnote 73 Similarly, in Hirsi, the applicants were not either channelled into procedures of identification and assessment of their personal circumstances; no interpreters and legal advisors were put at the disposal of intercepted persons on board the ships; no information was provided by the Italian military personnel about their final destination; and no advice on how to challenge their diversion to Libya was supplied.Footnote 74 Strengthening its previous stance in M.S.S v Belgium and Greece, the Court in Hirsi reiterates the importance of providing anyone subjected to a removal decision with adequate information to enable them both to gain access to asylum procedures and to substantiate their complaints under Article 3 of the Convention and Article 4 of Protocol 4.Footnote 75
Moreover, for the first time since Conka, the Court acknowledges a violation of Article 13 taken together with Article 4 of Protocol 4.Footnote 76 No effective remedy with a suspensive effect of the deportation order was in fact provided to prevent collective expulsions. National authorities must always afford applicants ‘a realistic possibility of using the remedy’.Footnote 77 A remedy that is ‘effective’ in practice and in law does not need to bring about a favourable outcome for the claimants, nor does the ‘national authority’ referred to in Article 13 necessarily have to be a judicial one.Footnote 78 But, as stated by the Court in Jabary v Turkey,
given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialized and the importance which it attaches to Article 3, the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure impugned (emphasis added).Footnote 79
In Hirsi, the Grand Chamber did not review its previous case-law on the issue. However, it is worth noting how its decision complements and supplements established jurisprudence. In the Bahaddar judgment, for example, the Court reasoned that short time limits for filing asylum applications can hamper access to an effective remedy because the applicants do not have enough time to collect evidence proving their claim for international protection, and the personal risk they would suffer in their country of origin.Footnote 80
Further, in several cases, the Court ruled that the fact that an applicant did not have the chance to appeal the decision of expulsion or extradition because of accelerated procedures led to a violation of Article 13.Footnote 81 In the Shamayev v Georgia and Russia case—concerning the expulsion of a Chechen national to Russia—the Court showed how the presumption of safety of receiving countries is not absolute, even with respect to States parties to the Convention. As a consequence, Article 13 of the ECHR was to be interpreted as to require, at the material time of the expulsion, an accurate control by national authorities of the applicant's complaint alleging that his or her extradition would have consequences contrary to the Convention.Footnote 82
If the Court recognizes that States enjoy a certain leeway in respect to the manner in which they comply with the obligations stemming from Article 13, it cannot be that the absence of any recourse against the coactive measure of return is accepted as falling within the scope of a State's ‘margin of appreciation’. The violation of Article 13 in the case of interceptions on the high seas and diversion to the country of embarkation results from the lack of mechanisms of review of the legality of the action by an independent national authority. To put it differently, the infringement of Article 13 is the consequence of both the lack of an accessible remedy with suspensive effects, and the deprivation of the individual right to legally challenge the removal order, which belongs, instead, to any alien subjected to a decision of expulsion from the territory of the host country.
The ruling in Hirsi upholds the principle that obstacles to the right to an effective remedy because of accelerated procedures of expulsion or denial of effective status determination measures are unjustifiable, and all migrants and refugees should be entitled to an in-country right to judicial review with suspensive effect of the return order, and within reasonable time limits. For instance, in the Gebremedhin v France and in the Abdolkhani cases, the Court held that Article 13 requires access to appeals ‘with automatic suspensive effect’, especially considering the irreversible nature of the damage if the risk of torture or inhumane treatments materializes in the receiving country.Footnote 83
Appeals submitted from abroad make the system of protection overly complex, first, because the possibility for the asylum seeker to lodge his recourse from the third country is not secured, and second, because a successful appeal would render otiose the attempts of the government to remove the applicant to a third country. As Legomsky posits,
To meet its obligations under the 1951 Convention, a destination State may not return an asylum seeker to a third country until the entire determination process, including appeal, has been completed. Only then, can there be adequate assurances that the person's convention rights, including the right to non-refoulement, will be observed.Footnote 84
The same reasoning can be applied also to remedies under the ECHR.
In line with Medvedyev and Al-Skeini, the decision in Hirsi corroborates the view that States can be held responsible under the Convention even for extraterritorial actions carried out by or on their behalf. Therefore, if States set in motion offshore mechanisms of either non-admission or removal after interdiction at sea—which limit the possibility of individuals to challenge State decisions—a violation of the right to an effective remedy under Article 13 of the ECHR could take place.
While in the admissibility stage the Court joined the Italian Government's objection of failure to exhaust domestic remedies, it then held that the possibility for the applicants to apply to the Italian criminal courts upon their arrival in Libya was not feasible. Indeed, even if such a remedy was accessible in practice, criminal proceedings against military personnel on board the warship would not meet the criterion of suspensive effect of the deportation order, which has a primary, and not subsidiary, nature.Footnote 85
Moreover, once returned to third countries, it would be overly complex for the applicants to claim asylum, to bring proceedings against an offending State, or collect sufficient evidence and adequate information to support any such legal challenge. In a poignant illustration of the difficulties of bringing proceedings from third countries, the Hussun v Italy case—concerning the expulsion of a group of migrants, in 2005, from the Italian territory to Libya—is illuminating.Footnote 86 The applicants complained, before the Court of Strasbourg, of the risk to which expulsion to Libya exposed them, the lack of an effective remedy against the deportation orders, their collective expulsion as aliens, and also of having been deprived of their right to apply to the Court. In any event, the Court struck the case out of the list on the basis of the fact that the representatives had lost contact with all of the applicants. So it was not able to know exactly where in Libya the group concerned had been expelled to, or what kind of reception the Libyan authorities had given them.
C. Access to Asylum Determination Procedures on the High Seas? Possible Implications of the Hirsi Decision for Refugee Policies of the European States
The major legal and practical significance of the Grand Chamber's judgment is in its impact on the asylum policy of all Members of the Council of Europe. Although the ECHR does not contain a general obligation to provide a substantive assessment of asylum applications, the analysis of the jurisprudence of the Court testifies to its insistence on a positive obligation to ensure access to status determination procedures in order to evaluate the consequences of the expulsion of an individual to the country of origin. In particular, ‘a rigorous scrutiny must necessarily be conducted of an individual's claim that his or her deportation will expose that individual to treatment prohibited by Article 3 (emphasis added)’.Footnote 87
The elaboration of an adequate system of access to asylum procedures in line with international standards of refugee and human rights law becomes crucial in particular in the light of both the mixed flows of migrants and refugees from North Africa following the Arab Spring, and the trend aimed to delocalize asylum models outside the Union far from the procedural and substantive protection standards guaranteed within the European frontiers.
Already in the T.I. v UK judgment, the Court took the opportunity to clarify that claims of violations of Article 3 should always be considered on their merits before carrying out expulsions and, as a consequence, all the circumstances surrounding an Article 3 claim must be subjected to a ‘rigorous scrutiny’.Footnote 88 In M.S.S., Belgium was found responsible of violations of Article 3 for exposing the applicant to the risks of deficient asylum procedures in Greece. Indeed, the transferring State must always assure that the asylum system in the readmitting country affords sufficient guarantees.Footnote 89
In Abdolkhani,
by failing to consider the applicants’ requests for temporary asylum, to notify them of the reasons for not taking their asylum requests into consideration and to authorize them to have access to legal assistance […], the national authorities prevented the applicants from raising their allegations under Article 3 […].Footnote 90
Likewise, in Z.N.S. v Turkey, the Court was not persuaded that the national authorities conducted any meaningful assessment of the applicant's asylum claim. Therefore, in the light of the UNHCR's assessment of the risk for the life of the applicant in the country of origin, it found a violation of Article 3.Footnote 91 Moreover, in the Amuur decision, the Court asserted that effective access to refugee status determination procedures must be ensured also to asylum seekers retained in ostensibly extra-jurisdictional zones, such as international airports.Footnote 92
Before Hirsi, no case had been decided by the Court on the possibility of guaranteeing access to status determination when refugees are intercepted on the high seas or further away from the territory of a European country of destination. In its judgment, the Court was keen to stress that preventing people from lodging their protection claims would both heighten the risk of refoulement and indirectly lead to a violation of Article 3 of the Convention. Thus, by delivering its views on asylum, the impression is that the Grand Chamber intends to contribute to substantiating and refining the content of extraterritorial States’ obligations toward protection seekers.
In 2009, migrants and refugees were pre-emptively pushed-back after interception in international waters and handed over to Libya without having the possibility of being transported to safe European ports for identification and examination of asylum claims. The Hirsi case could set a critical precedent for those European States that are attempting to shift the burden of responsibility for examining asylum applications to third countries, also with the help of bilateral agreements of technical and police cooperation used to intercept migrants and refugees before their physical arrival at Europe's doors.
A point of perplexity is raised by the Court's observation that no interpreters and lawyers were on board the intercepting vessels.Footnote 93 First of all, it is unrealistic that lawyers and translators for all the different nationalities may be placed at the disposal of migrants and refugees on the high seas, thus rendering nugatory any attempt of asylum seekers to claim protection or to receive information. But even if it were the case, does the Court's reasoning imply that asylum determination procedures can be effectively performed at sea?
In the absence of an explicit hint by the Grand Chamber with regard to the possibility to apply for asylum either on the vessels or on the mainland, it is submitted that the Hirsi decision would greatly lose its significance if boats were considered as an appropriate environment for processing asylum claims. Rather, ships should be unreservedly dismissed as suitable places for examining the individual situations of putative refugees, since they cannot be fairly interviewed in the intimidating atmosphere of a warship after an exhausting journey.Footnote 94 Moreover, on board of shipping vessels, ‘the personnel, temporal and infrastructure preconditions to carry out proceedings are not fulfilled in a way that would be possible for domestic official proceedings’.Footnote 95
Advising refugees on their legal position and on the procedures to be followed to claim asylum is necessary if a State wishes to identify those genuinely in need of protection among interdicted persons. Refugees intercepted at sea, for instance, normally do not possess any knowledge of either local legislation or language, thus making access to an interpreter or to independent legal assistance a fundamental requirement for obtaining effective protection.Footnote 96
Spijkerboer suggests that people intercepted at sea should always be requested to explain both why they fear their return to the country of embarkation and whether they want to apply for asylum.Footnote 97 States should do that driven by their awareness that both the life of intercepted migrants and refugees could be in danger, and that, as States, they possess a capacity to save people from harm.Footnote 98 Such a contention would be in line with the doctrine of ‘positive obligations’ adopted by the Court in the Osman v UK case according to which Article 2(1) of the ECHR embodies both the duty of States to refrain from the intentional and unlawful taking of life, but also the duty to take measures to protect the life of people under their jurisdiction if State authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals.Footnote 99
In the light of the foregoing, should States ensure, under the ECHR, access to asylum determination procedures with regard to those refugees that have not managed to enter their territory but are considered to be within their ‘jurisdiction’? This critical question seems to be answered in the affirmative.
In this respect, it is important to note that the Italian government did not actually put into question the right to seek asylum on the high seas and the duty of Italian authorities to handle asylum applications. But since no migrant, once on the Italian ships, expressed his intention to apply for asylum,Footnote 100 no need existed to detect either the identity or the nationality of returned passengers. Had intercepted migrants manifested their willingness to apply for asylum, they would have been taken to the mainland to examine their protection claims.Footnote 101
In the opinion of the respondent State,
There is no obligation during search and rescue operations to provide information on the possibility to apply for asylum. On the contrary, such information has to be ensured once the migrant expresses his willingness to apply for asylum.Footnote 102
Though the argument of the Italian government does not dispute the duty of States to ensure access to status determination procedures when refugees are intercepted on the high seas, it is, however, flawed for at least two reasons. First, according to the Court, Italy cannot circumvent ‘jurisdiction’ under the Convention by labelling activities at sea as search and rescue operations.Footnote 103 Second, a ‘rescue’ mission can be considered fully accomplished only when the stowaways are disembarked in a ‘place of safety’. In the absence of a clear-cut definition of what ‘a place of safety’ exactly is, ‘[t]he need to avoid disembarkation in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened is a consideration in the case of asylum seekers and refugees recovered at sea’.Footnote 104
In this regard, Libya cannot be considered, in any manner whatsoever, a safe haven because of the well-documented inadequacy of its response to flows of migrants and asylum seekers. Moreover, according to the respondent State, the possibility to bring migrants to Europe to identify them and examine their individual situation and asylum claims within a reception centre is only an option—not the only option. Accordingly, the fact that intercepted migrants did explicitly utter their willingness not to be returned to the Libyan guardianship could not be interpreted as an international protection request.
In this regard, it could be argued—as the Court does in Hirsi—that Italy had a duty to verify, before return, that the receiving country was actually safe for the returned refugees. Considering the huge amount of information provided by human rights organizations, Italy knew or should have known that, as irregular migrants and refugees, the applicants would be exposed to treatments contrary to the ECHR in Libya,Footnote 105 and would not be given any form of protection against arbitrary repatriation to Somalia and Eritrea.Footnote 106 In that regard, the existence in Libya of domestic law or ratification of international instruments was not per se sufficient to justify a presumption of safety.Footnote 107
It is exactly on this point that the radical nature of the Court's ruling on the asylum policies of EU Member States becomes most striking. The Grand Chamber affirms, that:
Italy is not exempt from complying with its obligations under Article 3 of the Convention because the applicants failed to ask for asylum or to describe the risks faced as a result of the lack of an asylum system in Libya. It reiterates that the Italian authorities should have ascertained how the Libyan authorities fulfilled their international obligations in relation to the protection of refugees.Footnote 108
A virtual distinction between people seeking international protection and people in need of international protection would be in line with the Court's contention that no automatic negative conclusion should be drawn from the absence of either an explicit asylum claim, or the substantiation of an asylum application.Footnote 109 Most of the times, individuals fleeing generalized violence or persecution in their home country are traumatized and have no knowledge of their own rights or the procedures that need to be fulfilled to claim asylum abroad. In this vein, a teleological interpretation of the Refugee Convention and international human rights treaties, including the ECHR, would require States to act proactively by informing refugees and by taking all necessary measures to ensure de facto compliance with the principle of non-refoulement—the overarching goal of the asylum regime—thereby avoiding the delivery of refugees back to their persecutors as a consequence of States’ omissions.Footnote 110
According to the Court, the non-refoulement obligation attaches to any persons in need of international protection who suffers a real risk of exposure to ill-treatment if returned (therefore regardless of whether they have sought asylum or are yet to have expressed their desire to be protected).Footnote 111 More specifically, ‘compliance with non-refoulement is only ensured if its prerequisite, refugee status (…) is adequately examined’.Footnote 112 The positive duty of States to provide information and to investigate the risks for the individuals subjected to a return decision is even more compelling when the dangerousness of a certain receptor country is ascertainable from a wide number of sources.
As stated in M.S.S., the lack of information was considered by the Court as one of the major obstacles in accessing fair and effective asylum determination procedures. Considering the irreversible consequences of an unsafe removal, ‘anyone should be entitled to obtain sufficient information enabling them to gain effective access to the relevant procedures and to substantiate their complaints.’Footnote 113 Thus, the Court's decision that the summary return of interdicted refugees on 6 May 2009, without access to a proper determination procedure and without granting them a hearing to both ascertain their status and challenge their removal amounted to a violation of Articles 3 and 13 of the Convention and Article 4 of Protocol 4 was wholly consistent with the purpose of the ECHR.Footnote 114
1. The Interrelation between international refugee law and human rights law
In order to articulate more extensively on the interaction between international refugee law and human rights law, Judge de Albuquerque delivered a principled and lone Concurring Opinion. He lay emphasis on how the concept of ‘refugee’ embodied in Article 33 of the 1951 Refugee Convention was less broad than the one under international human rights law, and in particular the ECHR. Additionally, a substantive list of the grounds under which the absolute obligation of non-refoulement should always be respected was drawn.Footnote 115
The ECHR, as de Albuquerque underlined, stands as a bulwark against the reliance on the regime of exceptions set forth in Article 33(2) of the Refugee Convention.Footnote 116 For those States parties to the Refugee Convention that have also ratified more expansive international human rights treaties, such as the ECHR, exclusion from refugee status—even when a person is considered a threat to national security of the destination State—should always be applied restrictively bearing in mind that Article 33(2) exceptions can never be invoked ‘in respect of primary human rights from which no derogation is permitted (right to life and physical integrity and the principle of legality in criminal law)’.Footnote 117 By extending the basis of protection well beyond persecution to multiple situations in which a serious harm is likely to be suffered, human rights law contributes to fill the gaps in the Refugee Convention, thus strengthening and reinforcing the overall system of safeguards of people in need of international protection.Footnote 118
International refugee law has de facto evolved by extending the refugee concept, as recognized in the 1951 Convention, also to people in need of complementary international protection. The comprehensive approach of the Court to the recognition of refugee rights and State obligations seems to paint the content of ‘international protection’ as a mosaic composed of diverse but matching pieces. Indeed, in order to be effective, international protection must encrypt not only guarantees of non-refoulement, but also access to refugee determination procedures, both equipped with effective remedies.
The Opinion of Judge de Albuquerque is fully consonant with this view of non-refoulement given that enforcing this obligation has two procedural consequences: the duty of the State to advise the individual in question about his entitlement to obtain international protection, and the duty to provide for an individual, fair, and effective refugee status determination and assessment procedure.Footnote 119Non-refoulement and access to fair and effective procedures are ‘so intertwined that one could say they are two sides of the same coin’.Footnote 120 Nothing prevents these procedural guarantees from being discharged also on the high seas.Footnote 121
D. Conclusion
Analysis of the Hirsi case has shown the entangled relationship between externalization of immigration controls and the risk for migrants and refugees to be returned to countries where their life or liberty can be irreversibly threatened. Binding the non-refoulement principle and correlated refugee rights to territory would shift attention from the superior individual's need for protection to the capacity of the individual to subvert migration border controls, thus creating a dichotomy of regimes: one for those refugees who cross the border of the destination country and another one for those who—because of their inability to secure such an entry—are excluded from the sphere of international protection.Footnote 122
The impairment of access to international protection for those refugees redirected to countries of provenance before their physical arrival in the territory of the destination country is the foreseeable outgrowth of a ‘jerry-built’ interception and readmission regime where no detailed and uniform procedural standards governing people interdicted on the high seas exist.
The Court's ruling is based on the idea that jurisdiction under Article 1 of the ECHR is mainly, but not exclusively, territorial. States’ extraterritorial human rights obligations are engaged, therefore, wherever they exercise jurisdiction (effective control and authority), even on the high seas. The Court found, indeed, violations of non-refoulement (Article 3) on account of the fact that the applicants were a) exposed to the risk of ill-treatment in Libya and b) to the risk of repatriation to Somalia and Eritrea; violations of the prohibition of collective expulsions (Article 4 of Protocol 4); and violations of the right to an effective remedy (Article 13 taken together with Article 3 of the Convention and Article 4 of Protocol 4).
In a process of cross-fertilization between different legal regimes, there is an increasing consensus among human rights scholars that international human rights law can provide a wider and more generous protection to asylum seekers than international refugee law, even when the violation is likely to occur outside European territory.Footnote 123 The Hirsi ruling confirms this trend by imposing upon States the duty to inform refugees about their rights, ensure access to asylum determination procedures, and assess the safety of the third country. In this vein, it is hoped that the jurisprudence of the Court can influence other jurisdictions, not only the regional area represented by the Council of Europe States.
Although sub-Saharan African migrants and refugees are still victims of inhumane treatments and arbitrary detention in the post-Gaddafi Libya,Footnote 124 the new governments in both Italy and Libya are re-establishing cooperation in the field of migration control with the intent to reactivate the agreements of technical and police cooperation signed in 2007 and 2009. However after Hirsi, European Governments—whether they act under the aegis of Frontex or notFootnote 125—will also be tied to review their border and return activities in conformity with the higher standard of protection recognized by the Court.
Building on its recent jurisprudence,Footnote 126 the Court in Hirsi affirms once and again that making States accountable for grave breaches of human rights committed beyond borders—either in international waters or in the territory of another country—is a protection imperative. Such an imperative underscores the principle that, in the words of Lawson it would be ‘morally wrong and legally unsound if, in the field of human rights, States were allowed to do abroad what they have undertaken not to do at home’.Footnote 127
