Last month, the European Court of Human Rights unanimously dismissed an application by survivors of a Mediterranean ‘pullback’ operation. Although Italian coast guard officials were the first to receive the applicants’ distress signal, they ‘outsourced’ their rescue obligations arising under several international treaties to Libya, leading to some 20 deaths and the horrific abuse of returnees. It was uncontested that the migrants’ dinghy began to sink in Libya’s ‘Search and Rescue’ (SAR) zone.
Reactions have been critical. While some castigate the decision specifically, others attack the Strasbourg jurisprudence in general as unduly restrictive, unclear, and productive of accountability gaps systematically excluding claims like the applicants’. Much pre-decision scholarship is similarly critical of the Strasbourg extraterritoriality jurisprudence, and calls for its reconceptualization in light of law of the sea doctrines like ‘functional’ jurisdiction and ship masters’ duties to rescue.
I disagree. The Strasbourg extraterritoriality jurisprudence is fine. It is the law of the sea that needs reconceptualization.
What the Court Gets Right
In paragraphs 78-84, the Court outlines generally that Article 1 ECHR ‘jurisdiction’
(1) is the condition sine qua non for ECHR responsibility;
(2) is primarily ‘territorial’; and
(3) obtains ‘extraterritorially’ only in exceptional cases where a Convention party produces relevant ‘effects’ outside its borders.
Relevant ‘effects’ are the assertion of ‘effective control over an area outside its national territory.’ (MN v Belgium, para 103) Cases cited for this proposition include he leading Al-Skeini decision, and Ilașcu, Catan, Mozer, and Sandu concerning ECHR obligations in Transdniestria, a Moldovan province controlled by a Russian-supported rebel government.
Given these premises, the Court’s dismissal is unsurprising. Italy’s close support for Libya’s coast guard no more triggers Italy’s ECHR jurisdiction than France and Spain’s lending judges to Andorran courts establishes theirs. The argument that ECHR obligations must be read compatibly with SOLAS rescue obligations founders because these are owed to other states – not individuals. Recognising ECHR jurisdiction over coast guard vessels harmonizes the ECHR with the law of the sea. By contrast, treating maritime obligations as individually enforceable requires much greater interpretive licence.
Nevertheless, the statement ‘juridiction est étroitement liée à la notion de «contrôle»’ is problematic. (para 84) In the Moldovan cases, both Russia and Moldova were held responsible, even though Moldova had absolutely no control over Transdniestria. Besides effective control of territory, Al-Skeini recognizes that jurisdiction also arises from ‘authority and control’ over persons. (paras 133-37) The Moldova cases, however, demonstrate that the ‘and control’ qualification cannot be right. Rather, jurisdiction emerges whenever a state positions itself – or is necessarily positioned by international law – as an ‘authority’ over persons, regardless of actual control.
Even then, it is difficult to imagine how Italy is an ‘authority’ over the applicants simply because it received their distress signal. If they had been in foreign territory, Italy would have had to seek the host-state’s consent to rescue them. Why shouldn’t the same apply to foreign SAR zones?
This question rests upon a deep-rooted error.
The Grotian Legacy
Our ideas of maritime governance largely come from Grotius’s Free Seas (1609) and Laws of War and Peace (1625), which present an idealized history of humanity’s transition from a primitive commons to the emergence of property and sovereignty as humans decline individually in virtue while their collectives become structurally complex. This conjectured commodification stops short of the seas for two reasons:
(1) inexhaustibility – ‘the Sea is of so vast an Extent, that it is sufficient for all the Uses that Nations can draw from thence, either as to Water, Fishing, or Navigation’; and
(2) unencloseability – the ocean as ‘unmeasurable and infinite, the parent of things bordering upon heaven, with whose perpetual moisture the ancients supposed not only fountains and rivers and seas, but also the clouds and the very stars themselves, in some sort to be maintained…’
Accordingly, the seas are ‘in the number of those things which are not in merchandise and trading, that is to say, which cannot be made proper. Whence it followeth…, no part of the sea can be accompted in the territory of any people…’ They are institutional voids; remnants of a primeval condition deliberately preserved by civilization amidst institutions of property and sovereignty. Grotius illustrates this best in an unpublished pamphlet found centuries after his death, recalling the famous story of Julius Caesar’s capture by pirates off the Anatolian coast. Whilst in their custody, Caesar smilingly promised the pirates he would crucify them, which he did, but – importantly – as a private citizen. Grotius remarks: ‘Caesar would no more have dared this on the sea than in the province, indeed would have committed lese majesty, if the sea had been as much the territory of the Roman people as the province itself.’ This is crucial, for Grotius’s overriding purpose was to defend the Dutch East India Company’s private wars against the Portuguese state.
In contrast, the contemporary international law of the sea allows maritime enclosure (see also para 43), as well as recognizes the reality of marine extinction (see para 72). Moreover, following the division of seas into zones based on state capabilities (‘functional jurisdiction’), the seas appear to have been ‘constitutionalized’. A problem nevertheless arises. To wit, the Mediterranean has been apportioned into SAR zones assigned to various coastal states. What happens if the State placed in charge of a particular zone collapses? It reverts to a maritime black hole.
At best, the contemporary tendency to conceive the oceans as recently-tamed wildernesses only inverts Grotius’s assumptions. Wildernesses persist because we still operate within Grotius’s conceptual framework.
The Seas as Global Public Goods
Grotius framed the seas as wildernesses to enable unfettered navigation by colonial companies. There is another way to envision travel facilities. In chapter 8 of his leading explication of Kantian legal philosophy and elsewhere, Arthur Ripstein imagines a society where land is so completely privatised that its members require the permission of their neighbours to leave their homes, or to get back after leaving. They might think they own their land; actually, the land owns them. The solution is a set of spaces where everyone can pass and repass. These cannot be supplied privately, for this reproduces the possibility of arbitrary confinement, but only through institutions representing everyone. Just as such, ‘public roads’ presume institutions with jurisdiction to prescribe traffic regulations and road safety acts. Without all these things, the inhabitants are unfree.
This ‘constitutional’ rationale is mirrored in the ‘cosmopolitan’ order encompassing all states and their subjects, of whom the latter has a right ‘to try to establish community with all and, to this end, to visit all regions of the earth.’ After lambasting Grotius as a ‘sorry comforter’ in Toward Perpetual Peace (1795), Kant observes that ‘uninhabitable parts of the earth’s surface’ like the ‘seas and deserts’ separate the community of nations, but ‘in such a way that ships and camels (ships of the desert) make it possible to approach one another over these regions.’ Providence cunningly uses precisely the things that separate us to bring us together. Accordingly, the seas are necessarily jurisdictional spaces, without which states would be as unfree as the inhabitants of our roadless dystopia. The difference lies in institutional configuration: unlike constitutional orders under a single united will, cosmopolitan governance is confederal. The world’s sovereigns must cooperate to maintain these ‘global’ public goods.
Strasbourg jurisprudence maintains that jurisdiction arises upon ‘the exercise of some of the public powers normally to be exercised by a sovereign government’ (Al-Skeini, para 149). The seas, however, are spaces where all sovereigns exercise public powers.
Hospitality
Domestic public authorities maintain roads by exercising eminent domain, imposing tolls, enacting public nuisance laws, etc. Such duties are sometimes individually enforceable as of right. Consider the entitlement to service by ferry operators, innkeepers, taxi drivers, etc. ‘Public carriers’ may not select their customers: if they have room, and you can pay a reasonable price, an action lies for refusal. Without this personal right, public roads would degenerate into instruments furthering private discrimination. Each public carrier is a node of a public system facilitating travel. Their private business is actually a ‘publick employment.’ (see page 917)
Kant’s mention of ‘hospitality’ in Toward Perpetual Peace is a reference to the titles of Roman law outlining these obligations. Sovereign states are nodes of the cosmopolitan system for cross-border interaction. Accordingly, naval, coast guard, and other vessels exercising public powers on the seas must render service upon request. ‘Distress signals’ are merely a particularly urgent type of service request. Upon receipt, a ‘special relation of dependency’ (see para 7.8) arises between the imperilled seafarer and the state, triggering obligations personal to the requestor.
Conclusion
Jurisdiction might be primarily territorial, but it does not stop at waters’ edge. For Kant, institutional voids are warzones because everyone is their own judge, jury and executioner. Because the final end of law is peace – ‘there is to be no war, neither war between you and me in the state of nature nor war between us as states…’ – no spot on earth, land or sea, can be institution-free. The Court’s inability to imagine this is, ultimately, the source of its error.
Aravind Ganesh is an Assistant Professor at the School of Law, University of Sussex. Previously, he was a postdoctoral researcher at the Faculty of Law, Maastricht University, the Vice-Chancellor’s Research Fellow in Law at Oxford Brookes University, and a Re:constitition fellow for the year 2020/21.