The End of ‘Contactless Control’ or the Time to Overcome Jurisdictional Constraints?

On June 12, 2025, the European Court of Human Rights (‘Court’) published its much-anticipated ruling on the application of S.S. and Others v. Italy. And, in fact, the Court opted for an inadmissibility decision. The decision contrasts with a shared vision in academia that the orchestration of a pull-back by a Member State to the European Convention on Human Rights (‘ECHR’) establishes ‘contactless control’ over the protection-seekers. Such type of control is widely deemed to amount to a refoulement by proxy, which constitutes a violation of the Convention. Instead, the Court found that the criteria for concluding that Italy exercised extraterritorial jurisdiction had not been met (para. 114).

In the following sections, the present blogpost will set out the background and main findings of the decision and will draw attention to the broader implications of the decision in light of ECHR Member-States’ externalisation policies. Ultimately, it will highlight the need for a broader interpretation of the term ‘jurisdiction’ in the Court’s jurisprudence.

Background of the Decision

The applicants were among the approximately 150 persons that departed Libya on a rubber dinghy during the night of 5-6 November 2017 to reach Europe (para. 4). On 6 November, the Italian Maritime Rescue Coordination Centre (MRCC) in Rome received a distress call from the vessel, which was located 33 nautical miles north of Tripoli (para. 5). According to the Government, the boat was within Libya’s maritime Search and Rescue (SAR) zone, and coordination was therefore delegated to the Libyan Joint Rescue Coordination Center (JRCC) (para. 6).

The Dutch NGO vessel Sea Watch 3 (SW3), which was in the vicinity, offered to act as on scene commander (para. 7), but the JRCC designated the Libyan Navy vessel Ras Jadir as the coordinating rescue ship (para. 8). According to the applicants, the approach of Ras Jadir caused swells that led to people drowning in the sea, while its crew failed to provide life jackets, beat survivors with ropes, and threatened them with weapons (para. 11). Other naval and aerial assets, including a French military vessel, an Italian Navy helicopter, and a EUNAVFOR Med aircraft, arrived at the scene but did not intervene in the rescue (para. 10).

Conversely, SW3 rescued several persons, including nine of the applicants, who thereafter disembarked in Italy. She also recovered the bodies of inter alia two children of two applicants (paras. 13, 16). Eight applicants were initially taken aboard the Ras Jadir, but six of them escaped and joined SW3 (para. 14). The remaining two were detained aboard the Ras Jadir and later transferred to a detention camp in Libya, where they claimed to have suffered mistreatment. Eventually, they were repatriated to Nigeria (para. 15).

The applicants argued that Italy exercised jurisdiction under ECHR Article 1. They further alleged, under Articles 2 (right to life) and 3 (prohibition of ill-treatment), that, by deferring coordination to the Libyan vessel Ras Jadir, Italy exposed them to a risk of death and ill-treatment (para. 40). Moreover, invoking Articles 3 and 4 (prohibition of slavery), the applicants argued that they were exposed to the risk of return to Libya, where migrants face inhuman conditions, slavery, and arbitrary repatriation (para. 42). Two of them claimed to have been unlawfully returned to Libya and repatriated to Nigeria, in breach of Articles 3 and 4 of Protocol No. 4 (prohibition of mass expulsions) (para. 43). Finally, under Article 13, the applicants alleged that they lacked access to effective remedies in Italy (para. 44).

The Court’s Findings

The Court recalled that the Convention applies only to persons within the jurisdiction of the States, and that jurisdiction is a necessary condition for engaging state responsibility (paras. 78, 97). According to the Court’s settled case-law, the Court further stressed that jurisdiction is primarily territorial (para. 98), but may exceptionally be extraterritorial when States exercise effective control over an area or authority and control over individuals abroad (paras. 84, 101-103).

The applicants argued that the coordination of the rescue operation by the MRCC in Rome following their distress call established Italy’s jurisdiction over them (para.104). However, the Court found that Italy’s compliance with its coordination obligations under international maritime law did not establish a jurisdictional link (paras.104, 106). Instead, it distinguished this situation from cases like Güzelyurtlu and Others v. Cyprus and Turkey, where criminal proceedings initiated by a State created such a link (para. 105). Precisely, the Court held that for jurisdiction to be triggered, the proceedings at issue must relate to the alleged violation complained of before the Court and have a direct impact on the question of whether material complaints raised before it fall within the jurisdiction of the State (para.105). Acts with extraterritorial effects alone are insufficient to trigger jurisdiction (para.107). Against this background, the Court concluded that Italy’s initiation of the rescue efforts was merely an act with extraterritorial impacts, which did not place the applicants under its jurisdiction (para.108). Thus, it declared the application inadmissible (para. 114).

Broader Implications of the Decision

Upon rejecting their arguments, the Court showed sympathy to the applicants for the tragedy they experienced (para. 109). It noted that European States’ practices of migration control externalisation are encouraged by the EU and stressed the risks that the implementation of migration outsourcing policies poses to States’ international obligations (para. 110). Against this background, it warned of the risk of creating lawless areas, in which no legal regime is capable of granting individuals the enjoyment of their rights (para. 111). Yet it also recalled that, even though other instruments may offer more extensive protection, the Court is still bound by its jurisdictional constraints (paras. 112-113).

These ‘general reminders’ are welcome and highlight the danger of a space of legal vacuum. Still, they do not effectively address the danger of creating lawless areas where the protection of fundamental rights cannot be guaranteed. Instead, they reinforce narrow interpretations of the term ‘jurisdiction’ and the exclusion of certain individuals from the ECHR’s protective scope.

Likewise, by rejecting the extraterritorial application of the ECHR in the circumstances of the case, the Court allows the ECHR members to evade responsibility for their influence over human rights violations that are committed by less economically-developed States (here Libya). The capitalist undertones of the ECHR States’ externalisation practices synthesise a modern form of domination over such third States (Chimni, p. 36-38, 44-45). The latter become parties to unequal agreements with wealthier destination States and undertake the obligation to do the ‘dirty work’ of containing and refouling protection-seekers in exchange for wealthier States’ (economic) support. By rejecting that through such practices, the ECHR States exercise contactless control over protection-seekers, the Court has essentially tolerated the lack of accountability for such practices. Thus, a question arises; is such a strict interpretation of the term ‘jurisdiction’ under the ECHR useful?

Was a Narrow Interpretation the Only Plausible Interpretation?

The answer of some ECHR Member-States’ to the question above seems to be rather clear. Through their recent open letter, nine ECHR Member States alleged that ‘irregular migration’ has led to the emergence of parallel societies that do not align with European values and to societal unrest due to crimes committed by migrants’. They further argued that the Court has ‘extended the scope of the Convention too far (…), thus shifting the balance between the interests which should be protected’ and has in this way ‘limited [their] ability to make political decisions’. The populist narratives reproduced by the letter, as well as its lack of legal clarity and divisive undertone, have been already underlined by Steininger. As she warns, the signatories’ true intentions are ‘to circumvent non-refoulement and impose significant measures of surveillance and detention on people who cannot be deported’.

Likewise, as Vishchyk and Pizzi have rightly noted, the interpretative value of this letter is not decisive. It is not representative enough to substantially influence the Convention’s interpretation. Yet, the potential chilling effect that such a letter may have on the Court’s interpretations, along with Member-States’ growing disregard toward their obligation to comply with the Court’s judgements on migration-related issues, is undoubtable.

Of course, the Court has already voluntarily adopted restrictive interpretations in migration-related judgements in its post- Hirsi Jamaa era. Similarly, in the decision discussed herein the Court did not seem to need additional arguments to adopt a narrow approach on jurisdictional matters. After all, other interpretative tools were at the Court’s disposal and could have been used for a broader interpretation of ‘jurisdiction’ under the ECHR.

Indeed, the Court could draw from relevant rules of international law, such as the International Covenant on Civil and Political Rights (ICCPR). In its seminal decision on A.S., D.I., O.I. and G.D v Italy, the Human Rights Committee held that the positive knowledge of the protection-seekers’ distress situation by the first contacted MRCC brings the vessel within the respective state’s jurisdiction (para. 7.8). Given that protection-seekers are in a ‘special relationship of dependency’ with that State and are ‘directly affected by the decisions taken by the [state’s] authorities’ when a State receives a distress call, that State exercises control over the individuals aboard (ibid). Also endorsed in scholarly writings (see here, here and here), this approach could have driven the Court towards a broader interpretation of ‘jurisdiction’ under ECHR Article 1.

Likewise, the contextual view of the ECHR’s jurisdiction clause against the background of the relevant provisions of the law of the sea could have had the same impact. Specifically, according to the SAR Convention, the State whose MRCC first receives the distress call becomes responsible for the coordination of rescue procedures. This obligation is then only fulfilled when the State ensures that the survivors assisted are disembarked to a place of safety (Chapter 3.1.9). The consideration of Italy’s obligations under the SAR Convention could have also led to an understanding of the ECHR that acknowledges Italy’s exercise of control over the protection-seekers that contacted the MRCC in Rome.

Finally, the recollection that the ECHR is a living instrument, to be interpreted in light of the present day circumstances, could have impacted the Court’s interpretation more substantially. After all, the Court expressly acknowledged the grave implications of the States’ modern externalisation practices, to which they resort in order to elude their ECHR obligations. Hence, it could have also highlighted the need to adapt the ECHR to the current developments and ensure that States’ attempts to evade international responsibility by delegating the ‘dirty work’ to non-ECHR Member-States will not be successful.

Concluding Remarks

The Court missed an opportunity to broaden the interpretation of ‘jurisdiction’ under the Convention, reinforcing the existence of maritime zones where human rights lack enforceability. This reflects its reluctance to overcome jurisdictional limits, despite having interpretative tools to do so. Meanwhile, States continue externalisation practices. They do so by using the Court’s case law not as a compass of their human rights obligations, but as a guide on how to get away with their human rights violations in extraterritorial contexts. This behaviour underscores the urgent need for the Court to move past its constraints and ensure that States comply with their obligations under the ECHR, even where they exercise contactless control.

The “Bofaxe” series appears as part of a collaboration between the IFHV and Völkerrechtsblog.