{"id":25434,"date":"2025-07-15T16:00:11","date_gmt":"2025-07-15T14:00:11","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=25434"},"modified":"2025-11-14T15:07:29","modified_gmt":"2025-11-14T14:07:29","slug":"a-kantian-critique-of-ss-and-others-v-italy","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/a-kantian-critique-of-ss-and-others-v-italy\/","title":{"rendered":"A Kantian Critique of SS and Others v Italy"},"content":{"rendered":"

Last month, the European Court of Human Rights unanimously dismissed<\/a> an application by survivors of a Mediterranean \u2018pullback\u2019 operation. Although Italian coast guard officials were the first to receive the applicants\u2019 distress signal, they \u2018outsourced\u2019 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\u2019 dinghy began to sink in Libya\u2019s \u2018Search and Rescue\u2019 (SAR) zone<\/a>.<\/p>\n

Reactions have been critical. While some castigate the decision<\/a> specifically, others attack the Strasbourg jurisprudence in general as unduly restrictive<\/a>, unclear<\/a>, and productive of accountability gaps<\/a> systematically excluding claims like the applicants\u2019<\/a>. Much pre-decision scholarship is similarly critical of the Strasbourg extraterritoriality jurisprudence, and calls for its reconceptualization<\/a> in light of law of the sea doctrines like \u2018functional\u2019<\/a> jurisdiction and ship masters\u2019 duties to rescue<\/a>.<\/p>\n

I disagree<\/a>. The Strasbourg extraterritoriality jurisprudence is fine. It is the law of the sea that needs reconceptualization.<\/p>\n

What the Court Gets Right<\/strong><\/p>\n

In paragraphs 78-84<\/a>, the Court outlines generally that Article 1 ECHR \u2018jurisdiction\u2019<\/p>\n

(1) is the condition sine qua non<\/em> for ECHR responsibility;<\/p>\n

(2) is primarily \u2018territorial\u2019; and<\/p>\n

(3) obtains \u2018extraterritorially\u2019 only in exceptional cases where a Convention party produces relevant \u2018effects\u2019 outside its borders.<\/p>\n

Relevant \u2018effects\u2019 are the assertion of \u2018effective control over an area outside its national territory.\u2019 (MN v Belgium<\/em><\/a>, para 103) Cases cited for this proposition include he leading Al-Skeini<\/em><\/a> decision, and Ila\u0219cu<\/em><\/a>, Catan<\/em><\/a>, Mozer<\/em><\/a>, and Sandu<\/em><\/a> concerning ECHR obligations in Transdniestria, a Moldovan province controlled by a Russian-supported rebel government.<\/p>\n

Given these premises, the Court\u2019s dismissal is unsurprising. Italy\u2019s close support for Libya\u2019s coast guard no more triggers Italy\u2019s ECHR jurisdiction than France and Spain\u2019s lending judges to Andorran courts<\/a> establishes theirs. The argument<\/a> that ECHR obligations must be read compatibly with SOLAS rescue obligations founders because these are owed to other states \u2013 not individuals<\/a>. Recognising ECHR jurisdiction over coast guard vessels<\/a> harmonizes the ECHR with the law of the sea. By contrast, treating maritime obligations as individually<\/em> enforceable requires much greater interpretive licence.<\/p>\n

Nevertheless, the statement \u2018juridiction est \u00e9troitement li\u00e9e \u00e0 la notion de \u00abcontr\u00f4le\u00bb\u2019 is problematic. (para 84<\/a>) In the Moldovan cases, both Russia and<\/em> Moldova<\/em> were held responsible, even though Moldova had absolutely no<\/em> control over Transdniestria. Besides effective control of territory, Al-Skeini<\/em> recognizes that jurisdiction also arises from \u2018authority and control\u2019 over persons. (paras 133-37<\/a>) The Moldova cases, however, demonstrate that the \u2018and control\u2019 qualification cannot be right. Rather, jurisdiction emerges whenever a state positions itself \u2013 or is necessarily positioned by international law \u2013 as an \u2018authority\u2019 over persons, regardless of actual control.<\/p>\n

Even then, it is difficult to imagine how Italy is an \u2018authority\u2019 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\u2019s consent to rescue them. Why shouldn\u2019t the same apply to foreign SAR zones?<\/p>\n

This question rests upon a deep-rooted error.<\/p>\n

The Grotian Legacy<\/strong><\/p>\n

Our ideas of maritime governance largely come from Grotius\u2019s Free Seas<\/em><\/a> (1609) and Laws of War and Peace<\/em><\/a> (1625), which present an idealized history of humanity\u2019s transition from a primitive commons<\/a> 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:<\/p>\n

(1) inexhaustibility<\/em> \u2013 \u2018the 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<\/a>\u2019; and<\/p>\n

(2) unencloseability<\/em> \u2013 the ocean as \u2018unmeasurable 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\u2026<\/a>\u2019<\/p>\n

Accordingly, the seas are \u2018in the number of those things which are not in merchandise and trading, that is to say, which cannot be made proper. Whence it followeth\u2026, no part of the sea can be accompted in the territory of any people\u2026<\/a>\u2019 They are institutional voids<\/em>; 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\u2019s capture by pirates off the Anatolian coast. Whilst in their custody, Caesar smilingly promised the pirates he would crucify them, which he did<\/a>, but \u2013 importantly \u2013 as a private citizen<\/em><\/a>. Grotius remarks: \u2018Caesar would no more have dared this on the sea than in the province, indeed would have committed lese majesty<\/em>, if the sea had been as much the territory of the Roman people as the province itself.<\/a>\u2019 This is crucial, for Grotius\u2019s overriding purpose was to defend the Dutch East India Company\u2019s private<\/em> wars against the Portuguese state<\/a>.<\/p>\n

In contrast, the contemporary international law of the sea allows maritime enclosure<\/a> (see also para 43<\/a>), as well as recognizes the reality of marine extinction (see para 72<\/a>). Moreover, following the division of seas into zones based on state capabilities (\u2018functional jurisdiction\u2019), the seas appear to have been \u2018constitutionalized\u2019<\/a>. 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<\/a>.<\/p>\n

At best, the contemporary tendency to conceive the oceans as recently-tamed wildernesses only inverts Grotius\u2019s assumptions. Wildernesses persist because we still operate within Grotius\u2019s conceptual framework.<\/p>\n

The Seas as Global Public Goods<\/strong><\/p>\n

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<\/a> and elsewhere<\/a>, 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<\/a>. 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<\/em> representing everyone. Just as such, \u2018public roads\u2019 presume institutions with jurisdiction to prescribe traffic regulations and road safety acts. Without all<\/em> these things, the inhabitants are unfree.<\/p>\n

This \u2018constitutional\u2019 rationale is mirrored in the \u2018cosmopolitan\u2019 order encompassing all states and<\/em> their subjects, of whom the latter has a right \u2018to try to establish community with all and, to this end, to visit all regions of the earth.\u2019 After lambasting Grotius as a \u2018sorry comforter\u2019 in Toward Perpetual Peace<\/em><\/a> (1795), Kant observes that \u2018uninhabitable parts of the earth\u2019s surface<\/a>\u2019 like the \u2018seas and deserts\u2019 separate the community of nations, but \u2018in such a way that ships and camels (ships of the desert) make it possible to approach one another over these regions.\u2019 Providence<\/em> 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<\/em>. The world\u2019s sovereigns must cooperate to maintain these \u2018global\u2019 public goods.<\/p>\n

Strasbourg jurisprudence maintains that jurisdiction arises upon \u2018the exercise of some of the public powers normally to be exercised by a sovereign government\u2019 (Al-Skeini<\/em><\/a>, para 149). The seas, however, are spaces where all<\/em> sovereigns exercise public powers.<\/p>\n

Hospitality<\/strong><\/p>\n

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. \u2018Public carriers\u2019 may not select their customers: if they have room, and you can pay a reasonable price, an action lies for refusal<\/a>. Without this personal <\/em>right, public roads would degenerate into instruments furthering private discrimination<\/a>. Each public carrier is a node of a public system facilitating travel. Their private business is actually a \u2018publick employment.\u2019 (see page 917<\/a>)<\/p>\n

Kant\u2019s mention of \u2018hospitality<\/a>\u2019 in Toward Perpetual Peace<\/em> is a reference to the titles of Roman law outlining these obligations<\/a>. 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. \u2018Distress signals\u2019 are merely a particularly urgent type of service request. Upon receipt, a \u2018special relation of dependency\u2019 (see para 7.8<\/a>) arises between the imperilled seafarer and the state, triggering obligations personal to the requestor.<\/p>\n

Conclusion<\/strong><\/p>\n

Jurisdiction might be primarily territorial, but it does not stop at waters\u2019 edge. For Kant, institutional voids are warzones because everyone is their own judge, jury and executioner. Because the final end of law is peace \u2013 \u2018there is to be no war<\/em>, neither war between you and me in the state of nature nor war between us as states\u2026<\/a>\u2019 \u2013 no spot on earth, land or sea, can be institution-free. The Court\u2019s inability to imagine this is, ultimately, the source of its error.<\/p>\n","protected":false},"excerpt":{"rendered":"

Last month, the European Court of Human Rights unanimously dismissed an application by survivors of a Mediterranean \u2018pullback\u2019 operation. Although Italian coast guard officials were the first to receive the applicants\u2019 distress signal, they \u2018outsourced\u2019 their rescue obligations arising under several international treaties to Libya, leading to some 20 deaths and the horrific abuse of […]<\/p>\n","protected":false},"author":36,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[5218,3782,3888,4754],"authors":[7634],"article-categories":[6000],"doi":[],"class_list":["post-25434","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-critical-approaches","tag-ecthr","tag-law-of-the-sea","tag-unclos","authors-aravind-ganesh","article-categories-article"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20250715-143030-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/25434","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\/36"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=25434"}],"version-history":[{"count":3,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/25434\/revisions"}],"predecessor-version":[{"id":25463,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/25434\/revisions\/25463"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=25434"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=25434"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=25434"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=25434"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=25434"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=25434"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}