S.S. and Others V. Italy

Recently, particularly in Europe, the obligations towards refugees and asylum seekers have become a game of cat and mouse, whereby obligations are created, and loopholes or other legally sound ways of dodging the obligation without violating any framework are found and exploited. As a result, the distressed civilians suffer with no way to find any sort of accountability. Specifically in recent years, many efforts have been made to dodge the obligations under the ECHR and Refugee conventions by the European Nations. While Pushback agreements are seen as violations, a new method of pullback agreements is on the rise – the popularly termed EU’s own Rwanda Plan, or deals with countries like Lebanon, Turkey etc, and the EU altering its “safe third country” rule to allow flexibility to these deals. This piece analyses how the ECtHR’s decision in S.S. v. Italy reflects a missed opportunity to close legal loopholes exploited by pullback agreements, expand the scope of non-refoulement under the ECHR, and hold European states accountable for outsourcing migration control to unsafe third countries.

Background

On June 12, the ECtHR pronounced a judgment in the case of S.S v Italy whereby it rejected the application citing a lack of jurisdiction. The case involved major Human Rights violations, including violations of several Articles of Section I of the ECHR. The applicants were from Nigeria, who started their journey on a rubber dinghy across the Mediterranean. The MRCC (Rome Maritime Rescue Centre) received a distress call from the said dinghy, following which they sent a distress signal in the area. Following the signal, a Dutch vessel volunteered to take on-scene command. Since the area was under Libya’s search and rescue region, the MRCC contacted the Tripoli Joint Rescue Coordination Centre, which directed a Libyan vessel to conduct the rescue operation. Some were rescued by the Dutch vessel and some by the Libyan one, while a few could not be rescued at all. Those rescued by Libya faced ill-treatment and abuse in the detention camp they were subsequently taken to. The dinghy was in international waters and legally outside the territorial jurisdiction of Italy. Additionally, the court did not find any effective control on part of Italy. Henceforth, the court ruled a lack of Italy’s jurisdiction, and it therefore cannot adjudicate upon the issues.

Rationae Personae

To tackle the issue of lack of jurisdiction, the ECHR gives ECtHR the power to expand its jurisdiction if needed. Through its own case laws, extraterritorial jurisdiction has been acknowledged by the court. The ECtHR traditionally recognizes jurisdiction under Article 1 through either territorial control (ratione loci) and/or personal control (ratione personae). Moreover, to counter the practice of maritime pushbacks occurring on the high seas, the Court relied on the flag state principle and brought individuals on board the flag state’s vessel within that state’s jurisdiction. This allowed the court to adjudicate even though the incident happened on the high seas and beyond the territory of a state, as seen in the Hirsi Jamaa case. Clearly, the Court recognises extraterritorial jurisdiction through different principles and mechanisms and extends the scope of jurisdiction when needed.  Similarly, the Court could have held Italy responsible for its conduct by engaging with the principle of rationae personae, wherein the court has itself recognised that jurisdiction may arise when a state exercises authority and control over individuals, even outside its territory.

The fact that the MRCC chose to send a signal to the Libyan Coast Guard meant Italy possessed a degree of control in determining the fate of the dinghy and, consequently, the individuals. While audio control alone over a distress signal likely does not suffice to establish jurisdiction, the context and degree of influence exercised by a state can elevate such control into constructive jurisdiction. In El-Masri v. FYROM, the Court held that “the decisive factor is the State’s involvement in and knowledge of the chain of events leading to the violation”, showing that even a single operational decision can trigger jurisdiction. Similarly, in M.S.S. v. Belgium and Greece, the Court ruled that Belgium bore responsibility because it “knew or ought to have known that the applicant would face a real risk of inhuman or degrading treatment” when the transfer took place. These cases have established that when a state’s degree of influence over a situation is such that it determines or shapes the outcome, particularly with knowledge of the foreseeable harm, even the State’s limited actions are elevated into constructive jurisdiction, despite not having direct physical control.

The Italian MRCC’s actions went beyond passive communication. Its coordination, coupled with knowledge of Libya’s ill treatment and abuse, which has been flagged by many Human Rights organizations, brings forth the conclusion that the MRCC knew the fate that those aboard the dinghy would end up meeting and should therefore qualify as personal control under Article 1. This approach is also distinguishable from Banković v. Belgium (2001), where no operational control was found, and aligns more closely with Al-Skeini v. UK (2011), wherein the Court attributed jurisdiction to a State for acts which produced effects even outside the territory of a State, when a state’s agents exerted authority over individuals abroad. This qualification of personal control is essential, since pullback agreements are on the rise in an attempt to avoid jurisdiction through rationae loci and/or rationae personae. Given the resultant human rights violations of these agreements, stretching the jurisdiction of the court in line with earlier cases is needed to tackle their severe consequences.

The “Pullback” Agreements

Pullback agreements are agreements between the EU and North African States for training coast guards of African States on the Mediterranean Coast to ensure that the vessels trying to cross the sea are intercepted by those countries instead of the EU States. So instead of pushing migrants back, these agreements help the African countries on the coast to pull back migrants. One such pullback agreement was the bilateral agreement between Italy and Libya to curb the influx of migrants. Through the bilateral agreements, Italy has been outsourcing its migration responsibilities to Libya, a State, constantly flagged as not a safe option. These agreements cleverly tackled the issue of jurisdiction by training Libyan coast guards and letting them intercept the vessels in international waters instead.

This agreement is at the heart of this judgement because Libya was equipped to carry out such a mission as a direct effect of training received through the bilateral agreements. In other words, when the court ruled a lack of jurisdiction, it confirmed that the pullback agreements are a legitimate way of escaping ECHR obligations. A different approach could have been of strictly conditioning such agreements with a prerequisite to condition the receiving state with taking adequate measures to ensure Human Rights of those pulled back. The UNHCR, too, in its written submission, mentioned that an agreement relating to training of the coast guards should be conditioned with the receiving State taking adequate measures, and without it, such agreements could not be seen as done in good faith to International Human Rights or Refugee law. Training coast guards to rescue people but not ensuring what ensues after such rescue operations is clearly an easy way out from the obligations under ECHR. The court missed an opportunity to set a precedent for this precondition to have these agreements.

A Missed Opportunity to Address Loopholes

Italy’s negligence in taking precautions and overlooking its duty to condition Libya with effective measures on Libya’s end should have been treated as violation of ECHR, citing the indirect consequences it caused. Even the EU-Rwanda Plan is also supported with the argument that only the asylum-granting procedure is being outsourced, and those successful will be given asylum in Europe subsequently. However, the conditions of the places where these procedures are taking place are neither mentioned nor cared about. Therefore, a precedent of conditioning the third state with effective measures was needed to address this existing loophole. This would firstly lead to other EU nations revising their pullback agreements and secondly would open the way for the Court to review even indirect consequences of the implementations of such agreements.

In a time when pullback agreements are on a rise, this decision would have crystallized the compliance of ECHR when entering into such agreements. The Court also had an opportunity to expand the non-refoulement principle and encompass in itself the pullback strategies that most European states have been trying to apply. The principle of non-refoulement has been interpreted to fall under Article 3 of the ECHR and is thereby within the court’s jurisdiction. Refoulement to another third country where the individual will not be safe from persecution and refusal at the border without assessment as part of pushback strategies are both already included in the principle of non-refoulement. The pull-back strategies are a product of legal vacuum wherein the individual gets sent back without crossing the border legally and is sent to a third country where he will face ill-treatment and abuse, and may be deported back or to another country where he will end up with the same fate.

While Article 3 has traditionally been interpreted to impose a negative obligation of not returning the individuals to situations of harm, a careful and broader reading of the Court’s jurisprudence supports extending Article 3 to a positive obligation, particularly in cases such as M.S.S. v. Belgium, Greece and El-Masri v. FYROM, Osman v. UK and Soering v. UK. The Court in these cases had interpreted obligations under Article 3 to stretch to States being responsible even for harm it did not directly cause. These judgements establish that even administrative arrangements must comply in a way that does not facilitate, ignore or enable any foreseeable consequence that leads to a violation of the non-refoulment principle. Such an interpretation, if extended to pullback agreements, would require member states to design and implement their migration policies and bilateral agreements in a manner consistent with non-refoulement. This will lead to the same solution that a State should be held responsible if it simply trains and funds the coast guards of another State without simultaneously ensuring that migrants intercepted by them are protected from arbitrary detention and torture. If such positive obligations, as developed in terms of non-refoulment, are not developed for the growing pullback strategies, the European States will continue to escape legal consequences, as seen in the present case. And when the ECtHR ruled a lack of jurisdiction, it legalized this loophole. The judgment consequently may even lead to more exploitation of this legal gap as pullback agreements trend in the EU.