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The European Court of Human Rights: Hirsi Jamaa et al. v. Italy: Hirsi Jamaa v. Italy (Eur. CT. H.R.)

  • Jan Hessbruegge (a1)

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Between 2007 and 2009, Italy and Libya (then under the rule of Colonel Muammar Gaddafi) concluded several agreements to combat clandestine immigration. Pursuant to these agreements, Italy instated a policy of sending undocumented migrants and asylum seekers who had crossed the Mediterranean Sea from Africa back to Libya. In a number of cases, boats were intercepted on the high seas, and those on board sent back to Libya without a prior individualized assessment of their situation and protection needs. The present judgment concerns one such ‘‘push back operation’’ during which Italy intercepted a group of Somali and Eritrean nationals on the high seas, took them back to Tripoli, and handed them over to the Libyan authorities.

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* This text was reproduced and reformatted from the text available at the European Court of Human Rights website (visited June 5, 2012) http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=901565&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649.

1 See Submission by the Office of the United Nations High Commissioner for Refugees in the Case of Hirsi and Others v. Italy, Hirsi Jamaa v. Italy, App. No. 27765/09 (Eur. Ct. H.R. Feb. 23, 2012), available at http://www.unhcr.org/refworld/ pdfid/4d92d2c22.pdf; Intervener Brief Filed on Behalf of the U.N. High Comm’r for Human Rights, Hirsi Jamaa v. Italy, App. No. 27765/09 (Eur. Ct. H.R. Feb. 23, 2012), available at http://ohchr.org/EN/Issues/Migration/Pages/StudiesAnd Reports.aspx. The author worked on the intervener’s brief submitted by the High Commissioner for Human Rights.

2 U.N. Hum. Rts. Comm., General Comment No. 20, U.N. Doc. CCPR/C/21/Rev.1/Add. 13, ¶ 12 (May 26, 2004); Soehring v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) ¶¶ 90-91 (1989); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85 (entered into force June 26, 1987).

3 See Convention Relating to the Status of Refugees art. 33(1), July 28, 1951, 189 U.N.T.S. 137 (entered into force Apr. 22, 1954) [hereinafter 1951 Refugees Convention].

4 U.N. High Comm’r for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations Under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (Jan. 26, 2007), available at http://www.unhcr.org/refworld/pdfid/45f17a1a4.pdf; see also Haitian Ctr. for Human Rights v. United States, Case No. 10.675, Inter-Am. Comm’n H.R., Report No. 51/96, OEA/ Ser.L/V/II.95 Doc. 7 rev., at 550, ¶ 157 (1997).

5 Sale v. Haitian Ctrs. Council, 509 U.S. 155 (1993).

6 See also Al-Saadoon & Mufdhi v. United Kingdom, ¶ 139, App. No. 61498/08, 49 I.L.M. 764 (2010) (obiter dicta).

7 Bankovic v. Belgium, App. No. 52207/99, ECHR 2001-XVII (2001) (finding inadmissible claims of Serbian victims of NATO bombings during the Kosovo war given that the alleged violations occurred outside the territory of those states carrying out the bombings and those states never established effective control over the victims).

8 See U.N. High Comm’r for Refugees, supra note 4; see also U.N. High Comm’r for Human Rights, supra note 1.

9 See Rep. of the Int’l L. Comm’n [ILC], May 7–June 5, July 9–Aug. 10, 2007, ¶ 199 (n.400, draft art. 7 (2)), U.N. Doc. A/62/10; GAOR 59th Sess. (2007), available at http://untreaty.un.org/ilc/reports/2007/english/chp7.pdf.

1 Hannah Arendt described, like no one else, the mass movement of refugees in the twentieth century, made up of ordinary men and women who fled persecution for religious reasons. ‘‘A refugee used to be a person driven to seek refuge because of some act committed or some political opinion held. Well, it is true we have had to seek refuge; but we committed no acts and most of us never dreamt of having radical opinions. With us the meaning of the term ‘‘refugee’’ has changed. Now ‘‘refugees’’ are those of us who have been so unfortunate as to arrive in a new country without means and have to be helped by Refugee Committees.’’ (Hannah Arendt, We Refugees, in The Menorah Journal, 1943, republished in Marc Robinson (ed.), Altogether Elsewhere, Writers on exile, Boston, Faber and Faber, 1994).

2 The extension of the prohibition to indirect or ‘‘chain’’ refoulement has been acknowledged in European human rights law (see T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000-III; Müslim v. Turkey, no. 53566/99, §§ 72-76, 26 April 2005; and M.S.S. v. Belgium and Greece, no. 30696/ 09, § 286, 21 January 2011), in universal human rights law (see UN Human Rights Committee General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/ Rev.1/Add. 13, para. 12, and Committee Against Torture General Comment No. 1: Implementation of Article 3 of the Convention in the Context of Article 22, 21 November 1997, A/53/44, Annex IX, para. 2, and Korban v. Sweden, Communication No. 88/1997, 16 November 1998, UN doc. CAT/C/21/ D/88/1997) and in international refugee law (UN doc. E/1618, E/AC.32/5: the Ad Hoc committee reported that the draft article referred ‘‘not only to the country of origin but also to other countries where the life or freedom of the refugee would be threatened’’, and UN doc. A/CONF.2/SR.16 (summary report of the 16th meeting of the conference of plenipotentiaries, 11 July 1951): refoulement includes subsequent forcible return from the receiving country to another country where there would be a danger to life and liberty of the refugee, according to a Swedish proposal, which was later withdrawn by the Swedish representative, ‘‘stressing, however, that, as the President had also observed, the text of the article should be interpreted as covering at least some of the situations envisaged in that part of the amendment’’), and UNHCR, Note on Non-Refoulement (EC/SCP/2), 1977, para. 4.

3 Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161, and Vilvarajah and Others v. the United Kingdom, 30 October 1991, §. 103, Series A no. 215. This ill-treatment may even include appalling living conditions in the receiving State (M.S.S. v. Belgium and Greece, cited above, §§ 366-67).

4 Soering, cited above, § 113, Einhorn v. France, no. 71555/ 01, § 32, ECHR 2001-XI, and Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 149, ECHR 2010.

5 Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 233, 7 January 2012, not yet final.

6 Bensaid v. the United Kingdom, no. 44599/98, § 46, ECHR 2001-I; Boultif v. Switzerland, no. 54273/00, § 39, ECHR 2001-IX; and Mawaka v. the Netherlands, no. 29031/04, § 58, 1 June 2010.

7 See the correct interpretation of the Court’s jurisprudence made by the House of Lords in Regina v. Special Adjudicator (Respondent) ex parte Ullah (FC) (Appellant) Do (FC) (Appellant) v. Secretary of State for the Home Department (Respondent), paras. 24 and 69, and, among legal scholars, Jane, McAdam, Complementary protection in international refugee law, Oxford, 2007, pp. 171-72 , and Goodwin-Gill, and McAdam, , The refugee in international law, third edition, Oxford, 2007, p. 315 .

8 As applied by the UN Committee Against Torture in Balabou Mutombo v. Switzerland, Communication No. 13/1993, 27 April 1994, and Tahir Hussain Khan v. Canada, Communication No. 15/1994, 18 November 1994, and Conclusions and Recommendations: Canada, CAT/C/CR/34/CAN, 7 July 2005, para. 4.a), that criticised ‘‘the failure of the Supreme Court of Canada, in Suresh v. Minister of Citizenship and Immigration, to recognize at the level of domestic law the absolute nature of the protection of Article 3 of the Convention, which is not subject to any exception whatsoever’’.

9 As interpreted by the UN Committee on the Rights of Children in its General Comment No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin, UN doc. CRC/GC/2005/6, 1 September 2005, para. 27: ‘‘States shall not return a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child, such as, but by no means limited to, those contemplated under Articles 6 and 37 of the Convention, either in the country to which removal is to be effected or in any country to which the child may subsequently be removed . . . ’’

10 As applied by the UN Human Rights Committee in ARJ v Australia, Communication No. 692/1996, 11 August 1997, para. 6.9 (‘‘If a state party deports a person within its territory and subject to its jurisdiction in such circumstances that as a result, there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, that state party itself may be in violation of the Covenant’’), confirmed by Judge v. Canada, Communication No. 829/1998, 5 August 2003, paras. 10.4-10.6, regarding the risk of being submitted to the death penalty in the receiving State. On another occasion, the same body concluded that ‘‘in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise’’ (UN Human Rights Committee General Comment No. 15 (1986), para. 5, reiterated in General Comment No. 19, 1990, para. 5, with regard to family life, and in General Comment No. 20, 1992, para. 9, with regard to torture or cruel, inhuman or degrading treatment or punishment.

11 Principles on the effective prevention and investigation of extra-legal, arbitrary and summary executions, ESC resolution 1989/65, 24 May 1989, endorsed by the UNGA resolution 44/162, 15 December 1989, para. 5.

12 Declaration on the Protection of All Persons from Enforced Disappearance, UNGA resolution 47/133, 18 December 1992, Article 8 (1).

13 See, for instance, Article VIII (2) of the OAU Convention, conclusions III (3) and (8) of the 1984 Cartagena Declaration on Refugees, OAS/Ser.L/V/II.66, doc.10, rev.1, pp. 190-93, and para. 5 of the Recommendation (2001) 18 of the Committee of Ministers of the Council of Europe. The different approach of the Directive 2004/83/EC is highly problematic for the reasons stated in the above text.

14 See Recommendation Rec No. R (84) 1 of the Committee of Ministers of the Council of Europe on the protection of persons satisfying the criteria in the Geneva Convention who are not formally recognized as refugees, and UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 1979, re-edited 1992, para. 28.

15 M.S.S. v. Belgium and Greece, cited above, § 366.

16 Chahal v. the United Kingdom, 15 November 1996, §§ 79- 80, Reports of Judgments and Decisions 1996-V, and in proceedings for the expulsion of a refugee, Ahmed v. Austria, 17 December 1996, §§ 40-41, Reports 1996-VI.

17 UN Committee Against Torture, Tapia Paez v. Sweden, Communication No. 39/1996, 28 April 1997, CAT/C/18/D/39/ 1996, para. 14.5, and MBB v. Sweden, Communication No. 104/1998, 5 May 1999, CAT/C/22/D/104/1998, para. 6.4, and UN Human Rights Committee General Comment No. 20: Replaces General Comment 7 concerning prohibition of torture and cruel treatment or punishment (Article 7), 10 March 1992, paras. 3 and 9, and General Comment No. 29 on States of Emergency (Article 4),UNdoc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 11, Considerations of reports: Concluding Observations on Canada, UN doc. CCPR/C/79/Add.105, 7 April 1999, para. 13, and Concluding Observations on Canada, UN doc. CCPR/C/CAN/CO/5, 20 April 2006, para. 15.

18 See the fundamental Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, UN doc. HCR/MMSP/2001/9, 16 January 2002, para. 4, which noted that ‘‘the continuing relevance and resilience of this international regime of rights and principles, including at its core the principle of non-refoulement, whose applicability is embedded in customary international law’’, and UNHCR, ‘‘The Principle of Non-Refoulement as a Norm of Customary International Law’’, Response to the Questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93, and even more categorical, the 5th conclusion of the 1984 Cartagena Declaration on Refugees, OAS/Ser.L/V/II.66, doc.10, rev.1, pp. 190-93, which affirms that ‘‘This principle is imperative in regard to refugees and in the present state of international law should be acknowledged and observed as a rule of jus cogens’’, reiterated by the 2004 Mexico Declaration and Plan of Action to Strengthen the International Protection of Refugees in Latin America, and, among legal scholars, Lauterpacht and Bethlehem, ‘‘The scope and content of the principle of non-refoulement: Opinion’’, in Refugee Protection in International Law, UNHCR’s Global Consultation on International Protection, Cambridge, 2003, pp. 87 and 149, Goodwin-Gill and McAdam, cited above, p. 248, Caroline Lantero, Le droit des refugiés entre droits de l’Homme et gestion de l’ immigration, Bruxelles, 2010, p. 78, and Kälin/Caroni/Heim, Article 33, para. 1, marginal notes 26-34, in Andreas, Zimmermann (ed.), The 1951 Convention relating to the Status of Refugees and its Protocol, A Commentary, Oxford, 2011, pp. 1343-46 .

19 Committee of Ministers of the Council of Europe Recommendation Rec (2005) 6 on exclusion from refugee status in the context of article 1 F of the Convention relating to the Status of Refugees of 28 July 1951. For instance, conclusive (or non-rebuttable) presumptions of dangerousness of a person drawn from the nature of the crimes committed or the gravity of the penalty imposed are arbitrary.

20 Haitian Centre for Human Rights et al. US, case 10.675, report No. 51/96, OEA/Ser.L./V/II.95, doc. 7 rev., 13 March 1997, para. 157, stating that there are ‘‘no geographical limitations’’ to non-refoulement obligations resulting from Article 33 of the UN Refugee Convention. In para. 163, the Inter-American Commission also concluded that the push-back actions of the US breached Article XXVII of the American Declaration of Human Rights.

21 Advisory Opinion on the Extraterritorial Application of Non- Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 26 January 2007, para. 24, and ‘‘Background note on the protection of asylum-seekers and refugees at sea’’, 18 March 2002, para. 18, UN High Commissioner for Refugees responds to US Supreme Court Decision in Sale v. Haitian Centers Council, in International Legal Materials, 32, 1993, p. 1215, and ‘‘Brief Amicus Curiae: The Haitian Interdiction case 1993’’, in International Journal of Refugee Law, 6, 1994, pp. 85-102.

22 Declaration on Territorial Asylum, adopted on 14 December 1967, UNGA resolution 2312 (XXII), A/RES/2312(XXII), according to which ‘‘No person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any state where he may be subjected to persecution.’’

23 Regina v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants), 9 December 2004, para. 26: ‘‘There would appear to be general acceptance of the principle that a person who leaves the state of his nationality and applies to the authorities of another state for asylum, whether at the frontier of the second state or from within it, should not be rejected or returned to the first state without appropriate enquiry into the persecution of which he claims to have a well-founded fear.’’ In para. 21, Lord Bingham of Cornhill clearly indicated that he followed the Inter-American Commission’s ruling in the Haiti case (‘‘The appellants’ position differs by an order of magnitude from that of the Haitians, whose plight was considered in Sale, above, and whose treatment by the United States authorities was understandably held by the Inter-American Commission of Human Rights (Report No. 51/96, 13 March 1997, para 171) to breach their right to life, liberty and security of their persons as well as the right to asylum protected by article XXVII of the American Declaration of the Rights and Duties of Man, of which the Commission found the United States to be in breach in para 163.’’, with my underlining).

24 Conclusions and Recommendations of the CAT concerning the second report of the USA, CAT/C/USA/CO/2, 2006, paras. 15 and 20, affirming that the state must ensure that the nonrefoulement obligation is ‘‘fully enjoyed by all persons under (its effective control) . . . wherever located in the world’’, and in J.H.A. v. Spain, CAT/C/41/D/323/2007 (2008), which found Spain’s responsibility engaged with regard to non-refoulement obligations where it interdicted sea migrants and conducted extra-territorial refugee status determination.

25 General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/ C/21/Rev.1/Add.13, 2004, para. 12, underlining that a State must respect the principle of non-refoulement ‘‘for all persons in their territory and all persons under their control’’, Concluding Observations of the Human Rights Comm.: USA, CCPR/ 79/Add.50, 1995, para. 284, and Kindler v. Canada, Commentary No. 470/1991, 30 July 1993, para. 6.2, and ARJ v. Australia, Commentary No. 692/1996, 11 August 1997, para. 6.8.

26 See, among others, Guy Goodwin-Gill, ‘‘The right to seek asylum: interception at sea and the principle of non-refoulement’’, Inaugural Lecture at the Palais des Académies, Brussels, 16 February 2011, p. 2, and The Refugee in International law, Cambridge, 2007, p. 248, Bank, Introduction to Article 11, marginal notes 57-82, in Andreas, Zimmermann (ed.), The 1951 Convention relating to the Status of Refugees and its Protocol, A Commentary, Oxford, 2011, pp. 832-41 , and in the same book, Kälin/Caroni/Heim on Article 33, marginal notes 86-91, pp. 1361-63, Frelick, , ‘‘Abundantly clear’’: Refoulement, in Georgetown Immigration Law Journal, 19, 2005, pp. 252 and 253 , Hathaway, , The Rights of Refugees under International Law, Cambridge, 2005, p. 339 , Lauterpacht, and Bethlehem, , cited above, p. 113, Pallis, , ‘‘Obligations of the states towards asylum seekers at sea: interactions and conflicts between legal regimes’’, in International Journal of Refugee Law, 14, 2002, pp. 346-47 , Meron, , ‘‘Extraterritoriality of Human Rights Treaties’’, in American Journal of International Law, 89, 1995, p. 82 , Koht, , ‘‘The ‘Haiti Paradigm’ in United States Human Rights Policy’’, in The Yale Law Journal, vol. 103, 1994, p. 2415 , and Helton, , ‘‘The United States Government Program of Interception and Forcibly Returning Haitian Boat People to Haiti: Policy Implications and Prospects’’, in New York School Journal of Human Rights, vol. 10, 1993, p. 339 .

27 Sale v. Haitian Centers Council, 509/US 155, 1993, with a powerful dissenting opinion of Justice Blackmun.

28 Minister for Immigration and Multicultural Affairs v Haji Ibrahim, [2000] HCA 55, 26 October 2000, S157/1999, para. 136, and Minister for Immigration and Multicultural Affairs v Khawar, [2002] HCA 14, 11 April 2002, S128/2001, para. 42.

29 See, for the same argument, Robinson, , Convention relating to the Status of Refugees: its history, contents and interpretation – A Commentary, New York, 1953, p. 163 , and Grahl-Madsen, , Commentary on the Refugee Convention 1951 Articles 2-11, 13-37, Geneva, p. 135 .

30 PCIJ, Interpretation of Article 3 § 2 of the Treaty of Lausanne (Frontier between Turkey and Iraq), Advisory opinion No. 12, 21 November 1925, p. 22, and the Lotus case, 7 September 1927, p. 16, and the ICJ, Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, 3 March 1950 – General List No. 9, p. 8.

31 UN Doc. E/AC.32/SR.21, paras. 13-26.

32 UN Doc.E/AC.32/SR.20, paras. 54-56.

33 UN doc. A/CONF.2/SR.35.

34 Alland and Teitgen-Colly, Traité du droit d’asile, Paris, 2002, p. 229: ‘‘L’expression française de ‘refoulement’ vise à la fois l’éloignement du territoire et la non-admission à l’entrée’’.

35 ICJ, In re Border and Transborder Armed Actions (Nicaragua v. Honduras), judgment of 22 December 1988, para. 94.

36 See, for example, the reasoning of the Human Rights Committee, in Judge v. Canada, Comm. No. 829/1998, 5 August 2003, para.10.4.

37 This conclusion is, in fact, in accordance with American policy prior to the 1992 presidential order, since the USA considered the prohibition of refoulement applicable to actions undertaken on the high seas ( Legomsky, , ‘‘The USA and the Caribbean Interdiction Programme, in International Journal of Refugee Law, 18, 2006, p. 679 ). This conclusion also corresponds to actual American policy, since the USA have not only abandoned the said policy of summarily returning sea migrants to Haiti without any individual evaluation of the situation of the asylum seekers, but have themselves criticised that same policy in the ‘‘Trafficking in Persons 2010 Report’’ of the State Department when referring negatively to the Italian pushback practices in the Mediterranean (‘‘Further, the Italian government implemented an accord with the Government of Libya during the reporting period that allowed for Italian authorities to interdict, forcibly return and re-route boat migrants to Libya. According to Amnesty International and Human Rights Watch the government failed to conduct even a cursory screening among these migrants for indications of trafficking’’).

38 The Asylum case (Colombia v Perú), judgment of 20 November 1950 (General List No. 7, 1949–1950): ‘‘Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case’’.

39 See Article 17 of the 1889 Treaty on International Penal Law (Treaty of Montevideu), Article 2 of the 1928 Convention fixing the rules to be observed for the granting of asylum (Havana Convention) and Articles 5 and 12 of the 1954 Caracas Convention on Diplomatic Asylum, and, for a comprehensive study, Question of Diplomatic Asylum: Report of the Secretary-General, 22 September 1975, UN doc. A/10139 (Part II), and Denza, Diplomatic Asylum, in Andreas, Zimmermann (ed.), The 1951 Convention relating to the Status of Refugees and its Protocol, A Commentary, Oxford, 2011, pp. 1425-40 .

40 Parliamentary Assembly Recommendation 1236 (1994) on the right of asylum, which does ‘‘insist that asylum procedures and visa policies, in particular ones recently changed through national laws or on the basis of European Union treaties, continue to be based on the 1951 Geneva Convention and the Convention for the Protection of Human Rights and Fundamental Freedoms - remembering that the latter also implies obligations vis-à-vis persons who are not necessarily refugees in the sense of the 1951 Geneva Convention - and allow no infringements to be made, especially not of the generally accepted principle of non-refoulement, and the prohibition of rejection of asylum seekers at the border’’.

41 Report to the Italian Government on the visit to Italy carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 27 to 31 July 2009, para. 29: ‘‘The prohibition of refoulement extends to all persons who may be within a State’s territory or otherwise subject to its jurisdiction. The European Court of Human Rights has recognised a number of specific situations which may give rise to an extraterritorial application of ECHR obligations and engage a State’s responsibility in this respect. A State’s extraterritorial jurisdiction may be based, in particular, on (a) the activities of the State’s diplomatic or consular agents abroad . . . ’’

42 The UNHCR accepted the applicability of the non-refoulement obligation on the territory of another State in its Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 26 January 2007, para. 24 (‘‘UNHCR is of the view that the purpose, intent and meaning of Article 33(1) of the 1951 Convention are unambiguous and establish an obligation not to return a refugee or asylum-seeker to a country where he or she would be [at] risk of persecution or other serious harm, which applies wherever a State exercises jurisdiction, including at the frontier, on the high seas or on the territory of another State’’).

43 See the Study on the feasibility of processing asylum claims outside the EU against the background of the common European asylum system and the goal of a common asylum procedure, of the Danish Centre for Human Rights on behalf of the European Commission, 2002, p. 24, Communication from the Commission to the Council and the European Parliament on the managed entry in the EU of persons in need of international protection and the enhancement of the protection capacity of the regions of origin ‘‘improving access to durable solutions’’, Com(2004) 410 final; Comments of the European Council on Refugees and Exiles on the Communication from the Commission to the Council and the European Parliament on the managed entry in the EU of persons in need of international protection and the enhancement of the protection capacity of the regions of origin ‘Improving Access to Durable Solutions,’’ CO2/09/2004/ext/PC, and UNHCR Observations on the European Commission Communication ‘‘On the Managed Entry in the EU of Persons in Need of International Protection and Enhancement of the Protection Capacity of the Regions of Origin: Improving Access to Durable Solutions”, 30 August 2004.

44 See, among others, Entry on Aristides de Sousa Mendes, in Encyclopaedia of the Holocaust, Macmillan, New York, 1990 , Wheeler, , And who is my neighbour? A world war II hero or conscience for Portugal, in Luzo-brasilian Review, vol. 26, 1989, pp. 119-39 , Fralon, , Aristides de Sousa Mendes – Le Juste de Bordeaux, éd. Mollat, Bordeaux, 1998 , and Afonso, , ‘‘Le ‘‘Wallenberg portugais’’: Aristides de Sousa Mendes, in the Revue d’histoire de la Shoah , Le monde juif, No. 165, 1999, pp. 6-28 .

45 See, for the standard of international human rights and refugee law, Andric v. Sweden, decision of 23 February 1999, no. 45917/99; Čonka v. Belgium, no. 51564/99, §§ 81-83, ECHR 2002-I; Gebremedhin [Gaberamadhien] v. France, no. 25389/ 05, §§ 66-67, ECHR 2007-II; M.S.S. v. Belgium and Greece, cited above,§§ 301-302 and 388-389; and I.M. v. France, no. 9152/09, § 154, 2 February 2012; Report to the Italian Government on the visit to Italy carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 27 to 31 July 2009, para. 27; Recommendation Rec (2003)5 of the Committee of Ministers of the Council of Europe on measures of detention of asylum seekers, Recommendation No. R (98) 13 of the Committee of Ministers on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights, Recommendation Rec (81)16 on the harmonisation of national procedures relating to asylum; Recommendation 1327 (1997) of the Parliamentary Assembly of the Council of Europe on the ‘‘Protection and reinforcement of the human rights of refugees and asylum seekers in Europe’’; Guidelines on human rights protection in the context of accelerated asylum procedures adopted by the Committee of Ministers on 1 July 2009, and Improving Asylum Procedures: Comparative analysis and Recommendations for Law and Practice, Key Findings and Recommendations, A UNHCR research project on the application of key provisions of the Asylum Procedures Directive in selected Member States, March 2010, and UNHCR Provisional Comments on the Proposal for a Council Directive for Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status (Council Document 14203/04, 9 November 2004), 10 February 2005; European Council on Refugees and Exiles, Information note on the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status, IN1/10/2006/ EXT/JJ; International Law Commission, sixty-second session, Geneva, 3 May-4 June and 5 July-6 August 2010, Sixth report on expulsion of aliens submitted by Maurice Kamto, Special Rapporteur, Addendum A/CN.4/625/Add.1, and Report of the International Law Commission, sixty-second session, 3 May- 4 June and 5 July-6 August 2010, General Assembly, Official Documents, sixty-fifth session, Supplement No. 10 (A/65/ 10)A/65/10), paras. 135-83; and House of Lords European Union Committee, Handling EU Asylum Claims: New Approaches examined, HL Paper 74, 11th Report of Session 2003-04, and Minimum Standards in Asylum Procedures, HL Paper 59, 11th Report of Session 2000-01.

46 Executive Committee of UNHCR Conclusion No. 82 (1997), para. d(iii) and Executive Committee Conclusion No. 85 (1998), para. q); UNHCR, Handbook on Procedures and Criteria of Determining Refugee Status, HCR/IP/4/Eng/Rev.1, 1992, paras. 189-223 , and International Law Association, Resolution 6/2002 on Refugee Procedures (Declaration on International Minimum Standards for Refugee Protection), 2002, paras. 1, 5 and 8.

47 See the judgment of the International Court of Justice of 30 November 2010 in the Ahmadou Sadio Diallo case, A/CN.4/ 625, para. 82, in the light of Article 13 of the International Covenant on Civil and Political Rights and Article 12 (4) of the African Charter on Human and People’s Rights; UN Committee Against Torture, SH v. Norway, Communication No. 121/1998, 19 April 2000, CAT/C/23/D/121/1998 (2000), para. 7.4, and Falcon Rios v. Canada, Communication No. 133/1999, 17 December 2004, CAT/C/33/D/133/1999, para 7.3, Conclusions and Recommendations: France, CAT/C/ FRA/CO/3, 3 April 2006, para. 6, Conclusions and Recommendations: Canada, CAT/C/CR/34/CAN, 7 July 2005, para. 4 (c) and (d), Consideration of Reports Submitted by states Parties under article 19 of the Convention, China, CAT/C/ CHN/CO/4, 21 November 2008, para. 18 (D); UN Human Rights Committee, General Comment No. 15: The position of Aliens under the Covenant, 1986, para. 10; UN Committee on the elimination of racial discrimination, General rec. 30, Discrimination against Non-Citizens, CERD/C/64/Misc.11/ rev.3, 2004, para. 26;UNSpecial Rapporteur on the prevention of discrimination, final report of Mr. David Weissbrodt, E/CN4/Sub2/, 2003, 23, para. 11; and UN Special Rapporteur on the Human Rights of Migrants Mr Jorge Bustamante, Annual report, Doc. A/HRC/7/12, 25 February 2008, para. 64.

48 Inter-American Commission, Haitian Centre for Human Rights et al. v. US, case 10.675, para. 163, in view of Article XXVII of the American Declaration of Human Rights, and the judgment of the Court of Justice of the European Union of 28 July 2011, in the Brahim Samba Diouf case (C-69-10), in the light of Article 39 of the Directive 2005/85/CE.

49 With regard to the expulsion procedure, see Maaouia v. France ([GC], no. 39652/98, ECHR 2000-X), and to the asylum procedure see Katani v. Germany ((dec), no. 67679/01, 31 May 2001). Like Judges Loucaides and Traja, I also have serious doubts about the proposition that, on account of the alleged discretionary and public-order element of the decisions taken in these procedures, they are not to be seen as determining the civil rights of the person concerned. I have two major reasons: first, these decisions will necessarily have major repercussions on the alien’s private and professional and social life. Second, these decisions are not discretionary at all and do have to comply with international obligations, such as those resulting from the prohibition of refoulement. Anyway, the guarantees of the asylum procedure can also be derived from Article 4 of Protocol No. 4 and even from the Convention itself. In fact, the Court has already based its assessment of the fairness of an asylum procedure on Article 3 of the Convention (Jabari v. Turkey, no. 40035/98, §§ 39-40, ECHR 2000-VIII,). In addition, the Court has used Article 13 of the Convention to censure the lack of an effective remedy against the rejection of an asylum application (Chahal, cited above, § 153, and Gebremedhin [Gabermadhien], cited above, § 66). In other words, the content of the procedural guarantees of the prohibition of refoulement derives, ultimately, from those Convention Articles which protect human rights from which no derogation is permitted (such as, for example, Article 3), in conjunction with Article 13, as well as from Article 4 of Protocol No. 4.

50 Čonka, cited above, where the applicants had at the time of the expulsion already lost their permission to remain and were under an order to leave the country. See also, for the applicability of other regional conventions to aliens not lawfully on the territory, Inter-American Court of Human Rights, Provisional Measures requested by the Inter-American Commission on Human Rights in the matter of the Dominican Republic, case of Haitian and Haitian-Origin Dominican Persons in the Dominican Republic, order of the court of 18 August 2000, and African Commission on Human and People’s Rights, Rencontre Africaine pour la Défense des Droits de l’Homme v. Zambia, communication No. 71/92, October 1996, para. 23, and Union Inter-Africaine des Droits de l’Homme et al. v. Angola, communication No. 159/96, 11 November 1997, para. 20.

51 To this effect, see also the Parliamentary Assembly of the Council of Europe Resolution 1821 (2011) 1 on the interception and rescue at sea of asylum seekers, refugees and irregular migrants, paras. 9.3-9.6.

52 See the leading judgment of Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 59, Series A no. 94.

53 Lauterpacht and Bethlehem, cited above, § 61, and Goodwin and McAdam, cited above, p. 384.

54 Lauterpacht and Bethlehem, cited above, para. 67, and Goodwin-Gill, , ‘‘The right to seek asylum: interception at sea and the principle of non-refoulement ’’, Inaugural Lecture at the Palais des Académies, Brussels, 16 February 2011, p. 5 , and Goodwin, and McAdam, , cited above, p. 246 .

55 See Bernard, Ryan, ‘‘Extraterritorial immigration control, what role for legal guarantees?’’, in Bernard, Ryan and Valsamis, Mitsilegas (eds), Extraterritorial immigration control, legal challenges, Leiden, 2010, pp. 28-30 .

56 In para 45 of the case of Regina v Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants), the House of Lords recognised that pre-clearance operations actually ‘‘purport to exercise governmental authority’’ over those targeted. Nonetheless, the Lords were not ready to consider the denial of boarding a plane at a foreign airport as an act of refoulement in the context of the UN Refugee Convention.

57 Nowadays these rules constitute customary international law (ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, judgment of 26 February 2007, para. 420, and, among legal scholars, McCorquodale, and Simons, , ‘‘Responsibility Beyond Borders: State responsibility for extraterritorial violations by corporations of international human rights law’’, Modern Law Review, 70, 2007, p. 601 , Lauterpacht, and Bethlehem, , cited above, p. 108, and Crawford, and Olleson, , ‘‘The continuing debate on a UN Convention on State Responsibility’’, International and Comparative Law Quarterly, 54, 2005, p. 959 ) and are applicable to human rights violations ( Crawford, , The International Law Commission’s articles on state responsibility: Introduction, text and commentaries, Cambridge, 2002, p. 25 and Gammeltoft-Hansen, , ‘‘The externalisation of European migration control and the reach of international refugee law’’, in European Journal of Migration and Law, 2010, p. 8 ).

58 The same conclusion was reached by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), in its Report to the Italian Government on the visit to Italy from 27 to 31 July 2009, para. 48.

59 See the Permanent Court of International Justice Lotus judgment (France v. Turkey), judgment of 27 September 1927, para. 65, were the Court clearly stated: ‘‘A corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the territory of the State the flag of which it flies, for, just as in its own territory, that State exercises its authority, upon it, and no other State may do so . . . It follows that what occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the State whose flag the ship flies.’’.

60 Shaw, International Law, Fifth Edition, Cambridge, p. 495.

61 Report of the working group on contemporary forms of slavery, UN Doc E/CN.4/Sub.2/1998/14, 6 July 1998, rec. 97, and Report of the working group on contemporary forms of slavery, UN Doc E/CN.4/Sub.2/2004/36, 20 July 2004, rec. 19-31.

62 UN doc. E/AC.32/SR.40

* This note is submitted in a personal capacity. The views expressed herein are those of the author and do not necessarily reflect those of United Nations.

The European Court of Human Rights: Hirsi Jamaa et al. v. Italy: Hirsi Jamaa v. Italy (Eur. CT. H.R.)

  • Jan Hessbruegge (a1)

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