State Jurisdiction in Search and Rescue Operations - The Extraterritorial Reach of the European Convention on Human Rights and S.S. and Others v. Italy
Abstract: Every year thousands of refugees and migrants take on perilous journeys and cross the Mediterranean, hoping to reach safety and a better life in Europe. These so-called “boat people” often travel on overcrowded and unseaworthy dinghies and regrettably, many lives are lost each year. To protect the lives of those at sea, coastal States have established Rescue Coordination Centres with the purpose of receiving distress calls and coordinating maritime rescue operations. While the safety of those being rescued should arguably be prioritized, the Italian Maritime Rescue and Coordination Centre routinely instructs the Libyan Coastguard – known to act violently towards migrants and refugees and pull them back to Libya – to participate in Search and Rescue (SAR) operations of boat people on the Mediterranean. Thus far, Italy’s coordination and involvement of the Libyan Coastguard in SAR operations has remained unchallenged, but currently a case against Italy regarding SAR coordination – S.S. and Others v. Italy – is pending before the European Court of Human Rights. Whether or not Italy can be held responsible for any alleged violations of the European Convention on Human Rights (ECHR) because of its SAR coordination, depends on whether the Court will find that the applicants were within Italy’s jurisdiction under art. 1 ECHR. This thesis finds that in previous interception cases, jurisdiction has been triggered through States’ exercise of physical control under the personal model of jurisdiction, and that it is not obvious how the Court will rule in the present case, where Italy has not (directly) exercised such physical control. By applying the doctrinal legal research method, this thesis therefore examines scholarly suggestions and other strands of case law to assess whether the Court could adopt a different approach to jurisdiction in S.S. and Others v. Italy. First, this thesis investigates the suggestions of legal scholars Trevisanut and Papastavridis, who propose by reference to the Court’s case law on the right to life and emergency situations that the receival of a distress call could be considered to trigger what they call “long distance de facto control” because of the impact that the SAR coordinating State has over the lives of the persons in distress. While such a finding would allow the Court to stick to the controlbased understanding of jurisdiction, this thesis finds that the notion of “long distance de facto control”, not involving physical control, lacks doctrinal support. Second, this thesis explores the propositions of legal scholars Pijnenburg and Gammeltoft-Hansen and finds that instead of resorting to the control-based notion of jurisdiction, the Court could resort to the so-called extraterritorial effects doctrine. Based on the doctrine, the Court could find that the Italian coordination of the SAR operations conducted from Rome had the effect of violating the applicants’ human rights outside Italian territory, thereby triggering art. 1 ECHR. Such a finding would require the Court to rule that there was a direct and immediate causal link between the coordination and the alleged violations, but because of the scarce case law on the matter, it is difficult to foresee whether the present link would suffice. Although the doctrine has not been applied to the same extent as control-based jurisdiction, this thesis concludes that the doctrine could apply to SAR coordination over distance and could prove to be crucial in ensuring that European States maintain humane standards during SAR operations.
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