Overcoming the Restrictive Interpretation of Extraterritorial Jurisdiction by the European Court of Human Rights in the Case of Hirsi Jamaa in relation to Article 1 of the European Convention of Human Rights : Reflections on S.S. and Others v Italy, Functional Approaches to Jurisdiction and the Articles on State Responsibility

Abstract

European States have shown an increasing propensity to try and prevent refugees travelling by boat from claiming asylum in their countries, which has been achieved by the authorities of European States pushing them back to a third country (TC). This occurs despite European States having ratified important international conventions, including the Convention Against Torture, Refugee Convention and ECHR. Challenges have come up against European States for push backs, culminating in the case of Hirsi Jamaa, where it was made clear by the European Court of Human Rights (ECtHR) that refugees must be under the effective control (i.e. physical constraint) of State authorities in order for extraterritorial jurisdiction to be established and a substantive breach of an obligation under the ECHR examined. This study undertakes an analysis of the strength of this interpretation of extraterritorial jurisdiction in protecting the rights of refugees when it is transposed into the context of a case currently pending before the ECtHR. S.S. and Others v Italy concerns the pull back of refugees to Libya by the Libyan Coast Guard (LCG) and whose facts are distinguishable from Hirsi Jamaa on the basis that the return of refugees to Libya are carried out by the LCG instead of Italian authorities. This study examines how Italy can be held responsible for the pull back of refugees to Libya by the LCG where Italy only exercises contactless means of control. This study considers the placement of the ECHR within the broader framework of general international law and examines how the latter may inform the former. Reference will be made to the Vienna Convention on the Law of Treaties (VCLT) which provides a normative basis for the ECtHR to widen its interpretation of extraterritorial jurisdiction under the ECHR. By considering the rules on treaty interpretation in relation to the VCLT alongside the law on State responsibility for internationally wrongful acts, this study argues that the ECtHR is equipped with the necessary normative framework to justify a wider interpretation of extraterritorial jurisdiction in the context of pull backs of refugees on the high seas. As a consequence, this study examines the ways in which the ECtHR has, in judgments subsequent to Hirsi Jamaa, made subtle reference to the VCLT in order to absorb the rules on “attribution” found in the International Law Commission’s Articles on State Responsibility (Articles on State Responsibility). This study argues that the cases of Georgia v Russia (II) and Carter v Russia provide a basis for arguing that, despite a lack of physical constraint being exercised by Italian authorities, it is possible for the shortcomings of the interpretation of extraterritorial jurisdiction in Hirsi Jamaa to be overcome and responsibility of Italy established by reference to a functional approach which is focuses on the relationship between Italy and Libya. Finally, and on the same basis, this study argues that the rules on “complicity” in the Articles on State Responsibility can be applied by analogy and additionally act as a basis for establishing the responsibility of Italy.