The UNHCR submitted a third party intervention to the European Court of Human Rights in the case of Hirsi and others v Italy, Requête no 27765/09, which was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of about 200 migrants interdicted by Italian authorities and summarily returned to Libya pursuant to Italy’s push-back practice. The case was communicated by the Second Section of the Court on 17 November 2009.
The UNHCR’s intervention “addresses the practice and justification of ‘push-back’ operations by the Italian government, the conditions for reception and seeking asylum in Libya and the extraterritorial scope of the principle of non-refoulement and pursuant legal obligations concerning the rescue and interception of people at sea.”
Excerpts from the intervention:
“[***] 2.2.1 On 6 May 2009, the Italian government, in cooperation with the government of Libya, initiated the so-called “push-back policy” by intercepting people, including those who may be in need of international protection, on the high seas and returning them to Libya. This policy was a departure from the previous practice where Italian naval forces had regularly disembarked such persons in Lampedusa or Sicily. Based on UNHCR’s estimates, in 2008 some 75% of sea arrivals in Italy applied for asylum, and 50% of those who applied received some form of protection after their claims were assessed in the Italian asylum procedure.
2.2.2 According to the Italian authorities, from 6 May to 6 November 2009, a total of nine operations were carried out, returning a total of 834 persons to Libya. The precise modalities of the operations have not been made public and were not otherwise fully disclosed to UNHCR. …
4.1 The extraterritorial scope of the principle of non-refoulement under Article 33 (1) of the 1951 Convention…
4.1.2 The territorial scope of Article 33 (1) is not explicitly defined in the 1951 Convention. The meaning, purpose and intent of the provision demonstrate, in UNHCR’s view, its extraterritorial application, e.g., to situations where a state acts outside its territory or territorial waters. Furthermore, the extraterritorial applicability of human rights obligations contained in various instruments supports this position ….
4.2 The extraterritorial scope of the principle of non-refoulement in human rights law
4.2.1 The complementary and mutually reinforcing nature of international human rights law and international refugee law speak strongly in favour of delineating the same territorial scope for all expressions of the non-refoulement principle, whether developed under refugee or human rights law….
4.3 The principle of non-refoulement in the context of interception and search and rescue operations on the high seas
4.3.1 As stated earlier, the principle of non-refoulement applies whenever a state exercises jurisdiction. Jurisdiction can be based on de jure entitlements and/or de facto control. De jure jurisdiction on the high seas derives from the flag state jurisdiction. De facto jurisdiction on the high seas is established when a state exercises effective control over persons. Whether there is effective control will depend on the circumstances of the particular case.
4.3.2 Where people are intercepted on the high seas, rescued and put on board a vessel of the intercepting state, the intercepting state is exercising de jure as well as de facto jurisdiction. While de jure jurisdiction applies when the people on board a ship are sailing under the flag of the intercepting state, it is also exercised – relevant to the case of “push-backs” – where the intercepting state has taken the persons on board its vessel, bringing them under its full (effective) control. In UNHCR’s view, as becomes clear from section 2.2 above, the Italian authorities were in full and effective control of the persons throughout the “push-back” operations until the formal hand-over to the Libyan authorities. Article 4 of the Italian Code of Navigation specifies that Italian ships on the high seas are considered as Italian territory.
4.3.3 When jurisdiction on the high seas has been established, the obligations deriving from it in relation to the principle of non-refoulement should be examined. The UNHCR’s Executive Committee has emphasized the fundamental importance of fully respecting this principle for people at sea, underlining that: ‘interception measures should not result in asylum-seekers and refugees being denied access to international protection, or result in those in need of international protection being returned, directly or indirectly, to the frontiers of territories where their life or freedom would be threatened on account of a Convention ground, or where the person has other grounds for protection based on international law.’
4.3.4 In UNHCR’s view, the situation in which a state exercises jurisdiction on the high seas over people on board its vessels requires respect for the principle of non-refoulement. It follows that states are obliged, inter alia, not to hand over those concerned to the control of a state where they would be at risk of persecution (direct refoulement), or from which they would be returned to another country where such a risk exists (indirect refoulement). The state exercising jurisdiction needs to ensure that asylum-seekers are able to access fair and effective asylum procedures in order to determine their needs for international protection….
4.3.6 For interception or rescue operations carried out by EU Member States, UNHCR has clarified that, “… disembarkation of people rescued in the Search and Rescue (SAR) area of an EU Member State should take place either on the territory of the intercepting/rescuing State or on the territory of the State responsible for the SAR. This will ensure that any asylum-seekers among those intercepted or rescued are able to have access to fair and effective asylum procedures. The disembarkation of such persons in Libya does not provide such an assurance”.
5.1 UNHCR considers that the interception of persons on the high seas between Italy and Libya, their transfer from Italian to Libyan custody, and their return to Libya, may be at variance with the principle of non-refoulement and in contradiction to Article 3 of the ECHR. By returning persons to Libya without an adequate assessment of their protection needs, the Italian authorities appear not to have sufficiently taken into account the potential risk of refoulement, including indirect refoulement, and other possible violations of fundamental rights upon return of the affected persons to Libya. The lack of an asylum system in Libya means that there are not sufficient safeguards to ensure that persons in need of international protection will be recognized as such and accorded legal status and associated entitlements that could ensure their rights, including to protection against refoulement, are not violated. The risk of chain refoulement denying international protection, especially to Eritrea, cannot be excluded.”
Click here for the full text of the UNHCR intervention.
Click here for an earlier post on the case.