Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?

Extract

1. Introduction: The Italian Push-back Campaign

The sea has increasingly provided the theatre for forced mobility, a phenomenon that has put to the test the fundamentals of State sovereignty and increasingly translated into attempts by States the world over to extraterritorialise their border enforcement and migration control activities. Although the trend is global,¹ the situation in the Mediterranean has gained notorious visibility during the past decades. According to some estimates, the number of lives lost at the maritime frontiers of the EU Member States since 1988 amounts to 18,244.² Media outlets and witness accounts serve to record and document these deaths.³

Non-rescue episodes and incidents of refoulement are mostly due to disagreement among the actors involved regarding the content and extent of their international obligations accruing at sea.⁴ In the absence of a detailed legal regime, both flag and coastal States have adopted their own regulatory approaches to ‘boat migration’, contesting the essence of their international commitments regarding refugees, asylum seekers, human trafficking victims and other vulnerable persons in distress at sea.⁵ Interception has been conflated with search and rescue operations, and search and rescue obligations interpreted as applying independently from their impact on human rights and refugee law.⁶