Case Watch: European Ruling Affirms the Rights of Migrants at Sea

The Italian government’s policy of "pushing back" to the shores of North Africa migrant boats intercepted on the open sea has been condemned by the European Court of Human Rights (ECHR). In its historic Hirsi v. Italy judgment of February 24, the ECHR's Grand Chamber's affirmed the duty of states to uphold human rights aboard ships flying their flag in international waters, and their duty to protect migrants from being disembarked in countries where they risk suffering serious harm.

The complaint to the court concerned Italy´s push-back operations to Libya in 2009. Then, before the Arab Spring had begun, a group of migrants (mainly Somalis and Eritreans) tried to make the crossing from Libya to Italy. But they were intercepted by Italian customs and coast-guard ships on the high seas (outside Italian and Libyan waters) and taken onto those ships. Telling the passengers they were taking them to Italy, the ships took them instead to Libya. When the migrants saw they were approaching Libya, they protested, but to no avail. The Italian forces handed them over to the Libyan authorities. A group of Eritrean and Somali victims managed—from Libya—to instruct the Italian lawyers of UFTDU to make a complaint to the Court. The United Nations High Commissioner for Refugees and human rights organizations intervened to support the case, arguing that the migrants had not been given the chance to seek refugee status as required by international humanitarian law.

The Court’s judgment deals with four important areas.

The European Convention on Human Rights could only be relied on if Italy had ‘jurisdiction’ over the migrants aboard the boats under article 1 of the convention. The Italian government argued that they did not because its vessels were in international waters and, supposedly, on a ‘search and rescue’ mission. But under international law, a state has exclusive jurisdiction over a boat flying its flag on the high seas. This led the court to rule that, even though outside Italian territory, the people on the boat were subject to the jurisdiction of Italy under the convention. The claimed ‘search and rescue’ mission was irrelevant to jurisdiction.

The court decided that Italy had violated the prohibition on torture and ill-treatment in article 3 of the convention. The evidence available to Italy had showed that Libya was systematically violating the human rights of irregular migrants by inflicting torture and inhuman treatment. Following its MSS v. Greece judgment, the court said Italy had a duty to ‘find out about the treatment to which the applicants would be exposed on return’. Second, by sending them to Libya, the migrants were in fact exposed to a real risk of being arbitrarily repatriated by the Libyan authorities to Somalia and Eritrea, contrary to Italy’s obligation ‘to ensure that the intermediary country offers sufficient guarantees’. Italy’s defence that it was acting under the international law of the sea was rejected because those rules also prohibited Italy from returning a person to face a serious risk of ill-treatment.

The court then found a violation of the convention's prohibition on collective expulsion of aliens in Article 4 of Protocol 4 to the Convention. This is the first case where the court considered whether interception outside territorial waters can be ‘expulsion’. The language and history of the convention allow such a reading and the reality of 21^st century maritime migration requires that reading. The court held that the concept of expulsion runs with the state’s ‘jurisdiction’ under the convention. The court upheld the complaint of collective expulsion for only the second time (the first having been in Čonka v Belgium).

The last violation found by the court was denial of the right to a remedy. Article 13 of the convention gave the migrants the right to challenge before the Italian authorities the safety of Libya and the nature of the expulsion. The court ruled that they were entitled ‘to obtain a thorough and rigorous assessment of their requests before the removal measure was enforced’. Italy had a duty to provide the remedy before the passengers were handed to the Libyan authorities. The court singled out for criticism the lack of interpreters and legal advisers on board the ships.

The court ordered Italy to compensate the migrants with €15,000 each. In his powerful concurring opinion, Judge Pinto de Albuquerque called for Italy also to be ordered to ensure their right to return to Italian jurisdiction, and to have their requests for refugee status properly considered. Disappointingly, the other judges refused this, requiring Italy only to try its best to stop Libya harming or deporting the migrants arbitrarily.

Nevertheless, this important judgment ought to dissuade European immigration officials from attempting any more maritime push-back operations. To be lawful, such actions would have to ensure individualized access to a proper asylum procedure from the ship (including interpreters and legal advisors) and, in any event, there could be no forced disembarkation in a state where it was clear irregular migrants are at risk of ill-treatment. Rather than establish asylum courts at sea, Europe should use its resources to end the deaths at sea resulting from migrants' desperate attempts to reach its shores in often inadequate boats, and instead secure safe and humane treatment for all.

The clear and far-reaching opinion of Judge Pinto de Albuquerque shows the stark contrast between this result in Strasbourg and the much criticized ruling of the US Supreme Court in Sale v. Haitian Centers Council, which upheld the action of US coast-guard vessels in intercepting and repatriating Haitian migrant boats. The judgment is already being cited in Australia's debate over migrant boats, as the country's opposition coalition argues for the adoption of a similar "push-back" policy. By requiring states to guarantee human rights beyond their state´s territorial boundaries, Europe´s human rights court has upheld the primacy of fundamental rights and the rule of law.