Last week, I took a closer look at the caselaw of the European Court of Human Rights, which establishes how a State’s jurisdiction can be engaged outside its territorial boundaries. In its judgments in Hirsi and N.D. and N.T., the ECtHR has taken a very clear position on the questionable practices which States adopt in their effort to curb irregular migration and circumvent jurisdiction.
These decisions make it clear that, where (1) a European State comes into direct contact with an individual and exercises control over them, and (2) that State’s activities are in breach of its international obligations, then that State may be held accountable, even when the activities occurred in an extra-territorial context.
However, what happens when a third State is in breach of international law, arguably acting under direction/instruction of a European State, but the individual whose rights are being violated never comes into direct contact with the European States? Can a European State be held liable for the human rights/international law violations of a third State, if the European State deliberately enables the activities of a third State to circumvent its own liability? And if so, under what conditions?
what happens when a third State is in breach of international law?
Articles 2 and 3 of the UN Convention on the Law of the Sea (UNCLOS) provide that State sovereignty extends to the territorial sea, which shall not exceed 12 nautical miles. Within these limits, and in accordance with Article 21 of UNCLOS, a coastal State may adopt laws and regulations to prevent, among other things, the infringement of its immigration laws. The duty to save lives at sea is codified in Article 98 of UNCLOS. Accordingly, the world’s oceans are divided into 13 Search and Rescue (SAR) zones, put under the auspices of the relevant coastal State. Until recently, Libya was unable (or unwilling) to meet the duty to save lives at sea, but with recent European backing the Libyan Coast Guard (LCG) has been able to set up its own fleet and is now more or less able to meet this obligation. As the situation currently stands, the LCG is increasing its activities, not only in Libyan territorial waters (where it is acting within its legally defined rights), but also in international waters, where the duty to save lives at sea applies to all, and where States are not permitted to prevent others from fulfilling these duties and obligations.
On 6 November, German NGO Sea-Watch published a series of photos and videos depicting reckless behaviour by the LCG. These demonstrated that the LCG vessel did not follow adequate rescue procedures, approaching the boat in distress directly (instead of smaller speedboats), almost causing a collision. In response, many passengers aboard the dinghy jumped into the water, resulting in an estimated 5 deaths. The NGO vessel also recorded violence used against the rescued people aboard the LCG vessel, before the LCG returned its passengers to Libya.
Even more recently, on 25 November SOS MEDITERRANEE was forced to stand by and witness the interception of two boats in international waters and their subsequent (forced) return to Libya. Forcing NGO rescue vessels to stand by and wait while a boat remains in distress raises separate issues in relation to the duty “to proceed with all possible speed to the rescue of persons in distress”.
In addition to these recent examples of interceptions by the LCG, a recent report by the UN Panel of Experts on Libya raises concerns about human rights violations against migrants at the hands of the LCG. Similar concerns have been raised by the European Commissioner of Human Rights, with rights groups trying to clarify whether Libyan personnel trained by the EU were involved in any violent incidents against NGO boats.
In light of such evidence, recent cooperation between EU States and Libya raises a number of questions and concerns:
- Where will those intercepted by the Libyan Coast Guard be disembarked, and what are the implications for the port of safety concept?
- Who will be held accountable when abuses and violations occur?
- What about the principle of non-refoulement?
- And as stated above, what about the responsibility of the sponsoring State(s)? Are EU countries breaching their obligations under the Refugee Convention and other international law by enabling the LCG to carry out search and rescue and preventing departures?
The Port/Place of Safety Concept
According to the duties of search and rescue, it is generally accepted that persons rescued at sea are to be disembarked in a place/port of safety.
The difficulty with that, however, is that there is no internationally agreed definition of what constitutes a safe place or how responsibility is assigned. No definition is given in UNCLOS. The International Maritime Organisation’s 2004 Guidelines on the treatment of persons rescued at sea defines a place of safety as being “where the survivor’s safety of life is no longer threatened and where their human needs (food, shelter, medical needs) can be met.”
While underlining the importance of respecting the principle of non-refoulement, the guidelines fall short of placing a direct obligation on States to provide access to their sovereign territory to those rescued at sea. Instead, States are “encouraged” to cooperate with one another to agree on a place of disembarkation. It is thus left to State discretion. The guidelines provide for an amendment, which at section 2(5) clarifies that primary responsibility to “provide a place of safety, or to ensure that a place of safety is provided, falls on the Government responsible for the SAR region in which the survivors were recovered”, thereby shifting emphasis onto to the State in charge of the SAR zone in question. This has, however, not been signed by all relevant coastal States and is one of the reasons that the Italian MRCC has assumed such broad responsibilities.
there is no internationally agreed definition of what constitutes a safe place
In October 2015, the UNHCR issued a position on returns to Libya, calling “on all countries to allow civilians (Libyan nationals, habitual residents of Libya and third country nationals) fleeing Libya access to their territories.” It went on to urge “all States to suspend forcible returns to Libya… until the security and human rights situation has improved considerably”, stating that“this advice is valid until such time as the security and human rights situation in Libya has improved sufficiently to permit a safe and dignified return.” The position also stated that “the situation in which a state exercises jurisdiction over people as a result of interception at sea requires respect for the principle of non-refoulement,” urging “states to refrain from returning to Libya any third-country nationals intercepted at sea and to ensure that those in need of international protection are able to access fair and effective asylum procedures upon disembarkation.” In relation to Libya, the UNHCR stated that it considered Libya to be neither a “safe third country” nor a “place of safety for the purpose of disembarkation following rescue at sea.”
This position statement is not binding. However, it serves to underline the point that Libya cannot and should not be considered a safe country to which people can be returned. Almost all rescue operations conducted along the Central Mediterranean route are conducted under the auspices of the Maritime Rescue Coordination Centre in Rome. As long as the MRCC does not instruct vessels that have conducted a rescue operation to disembark people in Libya, but to continue disembarkation in Europe, it appears that the principle of port of safety is observed. However, the boats that are “rescued” (or “intercepted”) by the LCG are returned to Libya. Since February, this has reportedly been the fate of 20.000 people, raising concerns as regards the principle of non-refoulement.
Active Returns/Interceptions and the principle of Non-Refoulement
The principle of non-refoulement is most notably codified in Article 33 of the 1951 Refugee Convention, which provides that a State cannot return a refugee to a place where he/she fears prosecution. This obligation also covers being sent to a place from which the refugee may subsequently be returned to a third location where he/she may fear persecution (this is known as indirect refoulement). These norms form part of customary international law, and it is thus irrelevant whether the enforcing State is party to the Refugee Convention.
As stated above, it is clear that when the vessel of a ECHR Member State carries out a rescue operation, the rescued automatically fall under its jurisdiction for the purposes of the ECHR, as the State exercises full control over them. The same can be said where a State exercises personal control over an individual through, for example, its State agents (even when outside the State’s territory).
Jurisdiction/responsibility is, however, less straightforward where activities are carried out in cooperation with third (i.e. non-ECHR) States and may fall short of the traditional de jure or de facto exercises of jurisdiction. Guidance on this issue can be found in Articles 16 (aid or assistance in the commission of an internationally wrongful act), 17 (direction and control exercised over the commission of an internationally wrongful act) and 18 (coercion of another State) of the ILC Articles on State Responsibility. They establish the conditions under which a State may be found responsible for the internationally wrongful acts of another. This is also known as ‘derived responsibility’.
violation of the principle of non-refoulement is an internationally wrongful act
It goes without saying that violation of the principle of non-refoulement is an internationally wrongful act. In the case at hand, providing financial and technical support to Libya could fall under Article 16, where the State organ or agency in question provides aid or assistance (a) with knowledge of the circumstances of the internationally wrongful act; and if (b) the act would be internationally wrongful if committed by that State. The commentary on the Draft Article provides that one State may be responsible for the acts of another where it “voluntarily assists or aids another State in carrying out conduct which violates the international obligations of the latter, for example, by knowingly providing an essential facility or financing the activity in question.” Even though Italy’s assistance to the LCG is supposedly intended to help Libya meet its SAR obligations, it is clear that the financial and technical support provided to the LCG results in people being intercepted and returned to Libya. And European States clearly know that this conduct constitutes an internationally wrongful act, otherwise they would be returning boats to Libya themselves instead of taking their passengers to Europe.
In this regard, it is important to refer back to Hirsi. There, the Italian Government claimed that Libya could be considered a “safe host country”, relying on the fact that Libya had ratified the ICCPR, the Convention against Torture and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, and was a member of the International Organization for Migration.
The Italian Government’s arguments were rejected by the Court, which held that the ratification of these international treaties alone was not sufficient in guaranteeing adequate protection, and that in light of the ample evidence available, the Italian authorities “knew or should have known that, as irregular migrants, they would be exposed in Libya to treatment in breach of the Convention and that they would not be given any kind of protection in that country.”
It is well known and publicised that operations carried out by the LCG always result in the intercepted persons being returned to Libya. That is after all, part of the foundation of their Memorandum of Understanding: decreasing the number of people that arrive in Europe. And one way to achieve this is by intercepting boats before they reach the high seas or European jurisdiction. In light of this, it is also interesting to observe that in his separate opinion to Hirsi, Judge Albuquerque referred to Article 16 when concluding that “the provision of funds, equipment or staff to immigration-control operations performed by other States … on behalf of the Contracting Party, remain subject to the Convention standard. They all constitute forms of exercise of the State function of border control and a manifestation of State jurisdiction, wherever they take place and whoever carries them out.” While this is significant, difficulties arise with the application of the principle of State complicity in practice, for reasons such as difficulty in finding a court that may have jurisdiction over all States involved, or defining the relevant State in breach, due to a fragmentation of the Libyan State and absence of a functioning judicial system.
The European Union’s Fundamental Rights Agency (FRA) has published helpful guidance on this issue. The Report acknowledges these difficulties, but also states that “the possible legal consequences for EU Member States of requesting the assistance of third countries to prevent the arrival of migrants to the EU depend on … the exercise of de jure or de facto control over a person or the degree of leverage exercised by the EU Member State on the conduct of the third country.”
In its assessment of Article 16, the FRA notes that a possible argument might be that consideration should be given to the fact that the national rescue coordination centre forms part of a State entity (coast guard or another law enforcement agency). In line with this it could thus be argued that a national Rescue Coordination Centre (RCC) acts on behalf of a State, and that its instructions could thus trigger the State’s jurisdiction, where those instructions are contrary to the principle of non-refoulement and result in a violation. This might be particularly so in the current circumstances, as it appears that many (if not all) operations carried out by the LCG receive their instructions from the MRCC Rome, due to the absence of a functioning RCC in Libya.
The Way Forward
On 30 October 2017, representatives of a number of organisations in the maritime industry, as well as in the refugee and migration field, met for an inter-agency meeting. The maritime industry expressed its opinion that the possibility of a Libyan MRCC was a concern to the industry, as any rescue operations under its auspices would require the master of a ship to disembark rescued persons in Libya, which could lead to violations of the principle of non-refoulement.
I have demonstrated that while the possibility of finding States responsible for their assistance to Libya is possible in theory, this is more difficult in practice. The influx of people reaching Italian shores has undoubtedly put a strain on the country, its resources and its asylum system and it is for the EU and other Member States to step up and assist Italy in alleviating the undue burden placed on it by the Dublin system (which stipulates that the Member State first entered by a protection-seeker is responsible for the assessment of their protection claim).
That being said, and whilst recognizing that migratory control will remain a reality of the world that we live in, it is not acceptable for States to devise migratory politics that are in stark contrast to their international obligations. This holds true for everyone, but should be particularly emphasized in a Union that “is founded on the values of respect for human dignity, freedom, democracy equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”
If Member States’ primary concern truly was to break the cycle of trafficking and prevent further deaths at sea, the obvious answer would be to establish legal and regular access to EU territory and asylum procedures.
I have acknowledged that State sovereignty is considered one of the cornerstones of the international legal system, which permits States to regulate entry into their territory. I also acknowledge the necessity to combat human smuggling networks. However, disproportionately focusing on these networks seems to shift the focus away from what I consider to be more pressing issues: the reasons for people fleeing and why people flee across oceans, rather than accessing a State’s territory in a regular and legal manner.
Libya is not a place to which people can or should be returned
By creating more difficult conditions of access, the EU and its Member States are at the same time fuelling the flourishing of criminal networks. It is unlikely that the human instinct to survive will yield to migratory politics; yet the EU appears willing to stop departures at almost any cost. It has, as has been demonstrated in this series, begun moving its external borders further and further south and has outsourced activities to authorities known for human rights abuses. There is ample evidence on the widespread human rights violations in Libya, leading to the conclusion that it is not a place to which people can or should be returned. On 28 June 2017 the UK Upper Tribunal’s Immigration and Asylum Chamber issued a country guidance concluding that: “The violence in Libya has reached such a high level that substantial grounds are shown for believing that a returning civilian would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to a threat to his life or person.”
I have tried to discuss some of the legal challenges that arise in light of the current cooperation with Libya, and have tried to link these to the argument that European States might have co-responsibility of what is happening at the hands of third countries. Any cooperation with third States must be accompanied by expansive human rights training and guarantees, and investments in the country itself.
Considering the amount of reliable information available on conditions of migrants in Libya, then adopting the terminology of the ECtHR, States “know or ought to know” the kind of human rights violations that people are likely to be exposed to upon being returned to Libya. What is also significant to note from the ECtHR’s judgment in the Hirsi case is that, despite statements by the Italian government pointing to Libya having ratified international human rights instruments, this was not sufficient to guarantee that human rights would be observed there. In fact, there was abundant evidence pointing to the contrary.
The evidence shows that, first and foremost, Libya is not a place to which people can or should be returned – and any such action would violate the principle of non-refoulement. For now, this means that for European States there exists an obligation to stop assisting and facilitating interceptions and returns.
 For reasons of simplicity, I refer to “the Libyan Coast Guard”, but am aware of the fact that one cannot talk about a singular Libyan coast guard. For a discussion on the fragmentation, see: https://theintercept.com/2017/11/25/libya-coast-guard-europe-refugees/
 For additional ECtHR case law on jurisdiction arguments see Medvedyev and Others v France or Xhavara and fifteen v Italy and Albania.
 For an in depth discussion of jurisdiction in State complicity, see: http://jtl.columbia.edu/wp-content/uploads/sites/4/2015/06/Shepson-Note_53-CJTL-701.pdf
 Article 2, TEU