{"id":25419,"date":"2025-07-11T08:00:50","date_gmt":"2025-07-11T06:00:50","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/de\/?p=25419"},"modified":"2025-11-14T15:07:32","modified_gmt":"2025-11-14T14:07:32","slug":"the-end-of-contactless-control-or-the-time-to-overcome-jurisdictional-constraints","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/the-end-of-contactless-control-or-the-time-to-overcome-jurisdictional-constraints\/","title":{"rendered":"The End of \u2018Contactless Control\u2019 or the Time\u00a0to Overcome Jurisdictional Constraints?"},"content":{"rendered":"

On\u00a0June 12, 2025, the European Court of Human Rights (\u2018Court\u2019) published its much-anticipated ruling on the application of S.S. and Others v. Italy<\/em><\/u><\/a>.\u00a0And, in fact, the Court opted for an inadmissibility decision.\u00a0The decision contrasts with a <\/a>shared<\/u>\u00a0<\/a>vision<\/u>\u00a0<\/a>in<\/u>\u00a0<\/a>academia<\/u><\/a>\u00a0that the orchestration of a pull-back by a Member State to the European Convention on Human Rights (\u2018ECHR\u2019) establishes \u2018contactless control<\/u><\/a>\u2019 over the protection-seekers. Such type of control\u00a0is widely deemed to amount to a\u00a0refoulement by proxy<\/u><\/a>, 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).<\/p>\n

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\u2019 externalisation policies. Ultimately, it will highlight the need for a broader interpretation of the term \u2018jurisdiction\u2019 in the Court\u2019s jurisprudence.<\/p>\n

Background of the Decision<\/strong><\/p>\n

The applicants\u00a0were 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\u2019s maritime Search and Rescue (SAR) zone, and coordination was therefore delegated to the Libyan Joint Rescue Coordination Center (JRCC)\u00a0(para. 6).<\/p>\n

The Dutch NGO vessel Sea Watch 3<\/em> (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<\/em> as the coordinating rescue ship (para. 8). According to the applicants, the approach of Ras Jadir<\/em> 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).<\/p>\n

Conversely, SW3 rescued several persons, including nine of the applicants, who thereafter\u00a0disembarked in Italy. She also recovered the bodies of inter alia<\/em> two children of two applicants (paras. 13, 16).\u00a0Eight applicants were initially taken aboard the Ras Jadir<\/em>, but six of them escaped and joined SW3\u00a0(para. 14). The remaining two were detained aboard the Ras Jadir<\/em>\u00a0<\/em>and later transferred to a detention camp in Libya, where they claimed to have suffered mistreatment. Eventually, they were repatriated to Nigeria (para. 15).<\/p>\n

The applicants argued that Italy exercised jurisdiction under\u00a0ECHR Article\u00a01. They further alleged, under Articles 2 (right to life) and 3 (prohibition of ill-treatment), that,\u00a0by deferring coordination to the Libyan vessel Ras Jadir<\/em>, Italy exposed them to a risk of death and ill-treatment\u00a0(para. 40). Moreover, invoking Articles 3 and 4 (prohibition of slavery), the applicants\u00a0argued 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\u00a0claimed 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\u00a0(para. 44).<\/p>\n

The Court\u2019s Findings<\/strong><\/p>\n

The Court recalled that\u00a0the 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).\u00a0According to the Court\u2019s settled case-law, the Court further stressed that\u00a0jurisdiction is primarily territorial (para. 98), but\u00a0may exceptionally be extraterritorial\u00a0when States exercise effective control over an area or authority and control over individuals abroad (paras. 84, 101-103).<\/p>\n

The applicants argued that the coordination of the\u00a0rescue operation by the MRCC in Rome following their distress call established\u00a0Italy\u2019s jurisdiction over them (para.104). However, the Court found that Italy\u2019s 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 G\u00fczelyurtlu<\/em><\/u> and Others<\/em><\/u> v. Cyprus and Turkey<\/em><\/u><\/a>, where criminal proceedings initiated by a State created such a link\u00a0(para. 105). Precisely, the Court held that for jurisdiction to be triggered, the proceedings at issue\u00a0must 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\u00a0within the jurisdiction of the State (para.105).\u00a0Acts with extraterritorial effects alone are insufficient to trigger jurisdiction (para.107).\u00a0Against this background, the Court concluded that Italy\u2019s 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).<\/p>\n

Broader<\/strong> Implications of the Decision<\/strong><\/p>\n

Upon rejecting their arguments, the Court showed sympathy\u00a0to the applicants for the tragedy they experienced (para. 109). It noted that European States’ practices of migration control externalisation\u00a0are encouraged by the EU and stressed the risks that the implementation of migration outsourcing policies poses to States\u2019 international obligations (para. 110).\u00a0Against this background, it warned of\u00a0the 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,\u00a0even though other instruments may offer more extensive protection, the Court is\u00a0still bound by its\u00a0jurisdictional constraints (paras. 112-113).<\/p>\n

These \u2018general reminders\u2019 are welcome and highlight the danger of a\u00a0space of legal vacuum. Still, they do not effectively address the\u00a0danger of creating lawless areas where the protection of fundamental rights cannot be guaranteed. Instead, they reinforce narrow interpretations of the term \u2018jurisdiction\u2019 and the exclusion of certain individuals from the ECHR\u2019s protective scope.<\/p>\n

Likewise, by rejecting the extraterritorial application of the ECHR in the circumstances of the\u00a0case, the Court allows\u00a0the ECHR members to\u00a0evade responsibility for their influence over human rights violations that are committed by less economically-developed States (here Libya).\u00a0The capitalist undertones of the ECHR States\u2019 externalisation practices synthesise a modern form of domination\u00a0over such\u00a0third States\u00a0(Chimni<\/u><\/a>, p. 36-38, 44-45). The latter become parties to unequal agreements with wealthier destination States\u00a0and undertake the obligation to do the \u2018dirty work\u2019 of containing and refouling protection-seekers in exchange for wealthier States\u2019\u00a0(economic) support.\u00a0By rejecting that through such practices, the\u00a0ECHR States exercise contactless control over protection-seekers, the Court has essentially tolerated the lack of accountability for such practices. Thus, a\u00a0question arises;\u00a0is such a strict interpretation of the term \u2018jurisdiction\u2019 under the ECHR useful?<\/p>\n

Was a Narrow Interpretation the Only Plausible Interpretation?<\/strong><\/p>\n

The answer of some ECHR Member-States\u2019 to the question above\u00a0seems to be\u00a0rather clear. Through their recent\u00a0open l<\/u>etter<\/u><\/a>,\u00a0nine ECHR Member\u00a0States alleged that \u2018irregular migration\u2019 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\u2019. They further argued that the Court has \u2018extended the scope of the Convention too far (\u2026), thus shifting the balance between the interests which should be protected\u2019 and has in this way \u2018limited [their] ability to make political decisions\u2019.\u00a0The populist narratives reproduced by the letter, as well as its lack of legal clarity and divisive undertone, have been already underlined by Steininger<\/u><\/a>. As she warns, the signatories\u2019 true intentions are\u00a0\u2018to circumvent\u00a0non-refoulement<\/em>\u00a0and impose significant measures of surveillance and detention on people who cannot be deported\u2019.<\/p>\n

Likewise, as Vishchyk<\/u>\u00a0and <\/u>Pizzi<\/u><\/a> have rightly noted, the interpretative value of this letter is not decisive.\u00a0It is not representative enough to substantially influence the Convention\u2019s interpretation. Yet, the potential chilling effect that such a letter may have on the Court\u2019s interpretations, along with Member-States\u2019 growing disregard<\/u><\/a> toward their obligation to comply with the Court\u2019s judgements on migration-related issues, is undoubtable.<\/p>\n

Of course, the Court has already\u00a0voluntarily adopted restrictive interpretations in migration-related judgements in its post- <\/u>Hirsi Jamaa<\/em><\/u><\/a> era. Similarly, in the decision discussed herein the Court did not seem to need additional arguments\u00a0to adopt a narrow approach on\u00a0jurisdictional matters.\u00a0After all, other interpretative tools were at the Court\u2019s disposal and could have been used for\u00a0a broader interpretation of \u2018jurisdiction\u2019 under the ECHR.<\/p>\n

Indeed, the Court could draw from relevant rules of international law, such as the International Covenant on Civil and Political Rights<\/u><\/a> (ICCPR). In its seminal decision on A.S., D.I., O.I. and G.D<\/em><\/u> v Italy<\/em><\/u><\/a>, the Human Rights Committee held that the positive knowledge of the protection-seekers\u2019 distress situation by the first contacted MRCC brings the vessel within the respective state\u2019s jurisdiction (para. 7.8).\u00a0Given that protection-seekers are in a \u2018special relationship of dependency\u2019 with that State and are \u2018directly affected by the decisions taken by the [state\u2019s] authorities\u2019 when a State receives a distress call, that State\u00a0exercises control over the individuals\u00a0aboard (ibid). Also endorsed in scholarly writings (see here<\/u><\/a>, here<\/u><\/a> and here<\/u><\/a>), this approach could have driven the Court towards a broader interpretation of\u00a0\u2018jurisdiction\u2019 under ECHR Article 1.<\/p>\n

Likewise, the contextual view<\/u><\/a> of the ECHR\u2019s 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\u2019s obligations under the SAR Convention could have also led to an understanding of the ECHR that acknowledges Italy\u2019s exercise of control over the protection-seekers that contacted the MRCC in Rome.<\/p>\n

Finally, the recollection that the ECHR is a\u00a0living instrument<\/u><\/a>, to be interpreted in light of the present day circumstances, could have impacted the Court\u2019s interpretation more substantially. After all, the Court expressly acknowledged the grave implications of the States\u2019 modern externalisation practices, to which they resort\u00a0in 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\u2019 attempts to evade international responsibility by delegating the \u2018dirty work\u2019 to non-ECHR Member-States will not be successful.<\/p>\n

Concluding Remarks<\/strong><\/p>\n

The Court missed an opportunity to broaden the interpretation of \u2018jurisdiction\u2019 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\u2019s case law not as a compass of their human rights obligations, but as a guide on how to get away<\/u><\/a> with their human rights violations in extraterritorial contexts. This\u00a0behaviour 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.<\/p>\n

The \u201cBofaxe\u201d series appears as part of a\u00a0<\/em>collaboration<\/em><\/a>\u00a0between the\u00a0<\/em>IFHV<\/em><\/a>\u00a0and V\u00f6lkerrechtsblog.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

On\u00a0June 12, 2025, the European Court of Human Rights (\u2018Court\u2019) published its much-anticipated ruling on the application of S.S. and Others v. Italy.\u00a0And, in fact, the Court opted for an inadmissibility decision.\u00a0The decision contrasts with a shared\u00a0vision\u00a0in\u00a0academia\u00a0that the orchestration of a pull-back by a Member State to the European Convention on Human Rights (\u2018ECHR\u2019) establishes […]<\/p>\n","protected":false},"author":35,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3782,3744,3912,3936],"authors":[6022],"article-categories":[5108],"doi":[],"class_list":["post-25419","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-ecthr","tag-italy","tag-jurisdiction","tag-non-refoulement","authors-katsoni","article-categories-bofaxe"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20250711-143034-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/25419","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/35"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=25419"}],"version-history":[{"count":11,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/25419\/revisions"}],"predecessor-version":[{"id":25432,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/25419\/revisions\/25432"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=25419"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=25419"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=25419"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=25419"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=25419"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=25419"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}