FOR THESE REASONS, THE COURT

1. Decides by thirteen votes to four to strike the application out of its list in so far as it concerns Mr Mohamed Abukar Mohamed and Mr Hasan Shariff Abbirahman;
2. Decides unanimously not to strike the application out of its list in so far as it concerns the other applicants;
3. Holds unanimously that the applicants were within the jurisdiction of Italy for the purposes of Article 1 of the Convention;
4. Joins to the merits unanimously the preliminary objections raised by the Government concerning the non-exhaustion of domestic remedies and the applicants’ lack of victim status;
5. Declares admissible unanimously the complaints under Article 3;
6. Holds unanimously that there has been a violation of Article 3 of the Convention on account of the fact that the applicants were exposed to the risk of being subjected to ill-treatment in Libya and rejects the Government’s preliminary objection concerning the applicants’ lack of victim status;
7. Holds unanimously that there has been a violation of Article 3 of the Convention on account of the fact that the applicants were exposed to the risk of being repatriated to Somalia and Eritrea;
8. Declares admissible unanimously the complaint under Article 4 of Protocol No. 4;
9. Holds unanimously that there has been a violation of Article 4 of Protocol No. 4;
10. Declares admissible unanimously the complaint under Article 13 of the Convention taken in conjunction with Article 3 and Article 4 of Protocol No. 4 to the Convention;
11. Holds unanimously that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3 and of Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4 to the Convention and rejects the Government’s preliminary objection concerning the non-exhaustion of domestic remedies;
12. Holds unanimously

(a) that the respondent State is to pay the applicants, within three months, the following amounts:

(i) EUR 15,000 (fifteen thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage, which sums are to be held by the representatives in trust for the applicants;

(ii) EUR 1,575.74 (one thousand five hundred and seventy-five euros seventy-four cents) in total, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 23 February 2012 pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE

The Hirsi Jamaa case is about the international protection of refugees, on the one hand, and the compatibility of immigration and border-control policies with international law, on the other hand. The ultimate question in this case is how Europe should recognise that refugees have “the right to have rights”, to quote Hannah Arendt[1]. The answer to these extremely sensitive political problems lies in the intersection between international human rights law and international refugee law. Although I agree with the Grand Chamber’s judgment, I would like to analyse the present case in the context of a principled and comprehensive approach to these problems which takes account of the intrinsic link between those two fields of international law.

The prohibition of refoulement of refugees

Provision is made in international refugee law for the prohibition of refoulement of refugees (Article 33 of the 1951 United Nations Convention relating to the Status of Refugees and Article 2 § 3 of the 1969 Organization of African Unity’s Convention Governing the Specific Aspects of Refugee Problems in Africa – “the OAU Convention”), as well as in universal human rights law (Article 3 of the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment and Article 16 § 1 of the 2006 United Nations International Convention for the Protection of All Persons from Enforced Disappearance) and regional human rights law (Article 22 § 8 of the 1969 American Convention on Human Rights, Article 12 § 3 of the 1981 African Charter of Human Rights and People’s Rights, Article 13 § 4 of the 1985 Inter-American Convention to Prevent and Punish Torture and Article 19 § 2 of the 2000 Charter of Fundamental Rights of the European Union). There is no such explicit prohibition in the European Convention on Human Rights, but the principle has been acknowledged by the Court as extending beyond the similar guarantee under international refugee law.

Under the European Convention, a refugee cannot be subjected to refoulement to his or her country of origin or any other country where he or she risks incurring serious harm caused by any identified or unidentified person or public or private entity. The act of refoulement may consist in expulsion, extradition, deportation, removal, informal transfer, “rendition”, rejection, refusal of admission or any other measure which would result in compelling the person to remain in the country of origin. The risk of serious harm may result from foreign aggression, internal armed conflict, extrajudicial death, enforced disappearance, death penalty, torture, inhuman or degrading treatment, forced labour, trafficking in human beings, persecution, trial based on a retroactive penal law or on evidence obtained by torture or inhuman and degrading treatment, or a “flagrant violation” of the essence of any Convention right in the receiving State (direct refoulement) or from further delivery of that person by the receiving State to a third State where there is such a risk (indirect refoulement)[2].

In fact, the non-refoulement obligation can be triggered by a breach or the risk of a breach of the essence of any European Convention right, such as the right to life, the right to physical integrity and the corresponding prohibition of torture and ill-treatment[3] or the “flagrant violation” of the right to a fair trial[4], the right to liberty[5], the right to privacy[6] or of any other Convention right[7].

The same standard applies to universal human rights law in the light of the Convention Against Torture[8], the Convention on the Rights of Children[9] and the International Covenant on Civil and Political Rights[10]. In line with this standard, the United Nations General Assembly has already declared that “no one shall be involuntarily returned or extradited to a country where there are substantial grounds for believing that he or she may become a victim of extra-legal, arbitrary or summary execution”[11], and “No State shall expel, return (refouler) or extradite a person to another State where there are substantial grounds to believe that he would be in danger of enforced disappearance”[12].

Although the concept of refugee contained in Article 33 of the United Nations Convention relating to the Status of Refugees is less extensive than the one under international human rights law, international refugee law has evolved by assimilating the broader human rights standard and thus enlarging the Convention concept of refugee (incorrectly called de jure refugees) to other individuals who are in need of complementary international protection (incorrectly called de facto refugees). The best examples are Article I § 2 of the OAU Convention, Article III § 3 of the 1984 Cartagena Declaration on Refugees, Article 15 of the Council of the European Union Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Recommendation (2001) 18 of the Committee of Ministers of the Council of Europe on subsidiary protection.

In any case, neither international refugee law nor international human rights law distinguishes the regime applicable to refugees from the one applicable to individuals benefiting from complementary protection. The content of international protection, including the guarantee of non-refoulement, is strictly identical for both categories of persons[13]. There is no legitimate reason to protect “de jure refugees” better than “de facto refugees”, since they all share the same need for international protection. Any difference of treatment would result in the creation of a second class of refugees, subject to a discriminatory regime. The same conclusion applies to situations of mass influx of refugees. Groups of refugees cannot be subject to a diminished status based on an “inherent” mass-influx exception to “genuine” refugee status. To provide reduced, subsidiary protection (for example, with less extensive entitlements regarding access to residence permits, employment, social welfare and health care) for people who arrive as part of a mass influx would be unjustified discrimination.

A person does not become a refugee because of recognition, but is recognised because he or she is a refugee[14]. As the determination of refugee status is merely declaratory, the principle of non-refoulement applies to those who have not yet had their status declared (asylum-seekers) and even to those who have not expressed their wish to be protected. Consequently, neither the absence of an explicit request for asylum nor the lack of substantiation of the asylum application with sufficient evidence may absolve the State concerned of the non-refoulement obligation in regard to any alien in need of international protection[15]. No automatic negative conclusions can be drawn from the lack of an asylum application or the lack of sufficient evidence supporting the asylum application, since the State has a duty to investigate, of its own motion, any situation of need for international protection, especially when, as the Court has stressed, the facts which constitute the risk to the applicant “were well known before the transfer of the applicant and were freely ascertainable from a wide number of sources”. Although the obligation in the United Nations Convention relating to the Status of Refugees is subject to exceptions on national security and public safety grounds, no such exceptions can be found in European human rights law[16], nor in universal human rights law[17]: there is no personal, time or space limit to its application. Thus, it applies even in exceptional circumstances, including in a declared state of emergency.

Since refugee-status determination is instrumental in protecting primary human rights, the nature of the prohibition of refoulement depends on the nature of the human right being protected by it. When there is a risk of serious harm as a result of foreign aggression, internal armed conflict, extrajudicial death, forced disappearance, death penalty, torture, inhuman or degrading treatment, forced labour, trafficking in human beings, persecution, or trial based on a retroactive penal law or on evidence gathered by torture or inhuman and degrading treatment in the receiving State, the obligation of non-refoulement is an absolute obligation of all States. When there is a risk of a violation of any European Convention right (other than the right to life and physical integrity and the principle of legality in criminal law) in the receiving State, the State may derogate from its duty to provide for international protection, depending on the assessment of the proportionality of the competing values involved. There is an exception to this proportionality test: when the risk of a violation of any European Convention right (other than the right to life and physical integrity and the principle of legality in criminal law) in the receiving State is “flagrant” and the very essence of that right is at stake, the State is unavoidably bound by the obligation of non-refoulement.

With this extension and content, the prohibition of refoulement is a principle of customary international law, binding on all States, even those not parties to the United Nations Convention relating to the Status of Refugees or any other treaty for the protection of refugees. In addition, it is a rule of jus cogens, on account of the fact that no derogation is permitted and of its peremptory nature, since no reservations to it are admitted (Article 53 of the Vienna Convention on the Law of Treaties and Article 42 § 1 of the United Nations Convention relating to the Status of Refugees and Article VII § 1 of the 1967 Protocol).

This is now the prevailing position in international refugee law as well[18].

Thus, the exceptions provided for in Article 33 § 2 of the United Nations Convention relating to the Status of Refugees cannot be invoked in respect of primary human rights from which no derogation is permitted (right to life and physical integrity and the principle of legality in criminal law). Furthermore, an individual who comes under the ambit of Article 33 § 2 of the United Nations Convention relating to the Status of Refugees will nevertheless benefit from the protection provided by more generous international human rights law, such as the European Convention on Human Rights. Those exceptions can be applied only with regard to primary human rights, from which derogation is permitted, by those States parties to the United Nations Convention relating to the Status of Refugees which have not ratified any more generous treaty. Even in that case, the exceptions must be interpreted restrictively and applied only when the particular circumstances of the case and the individual characteristics of the person show that he or she represents a danger to the community or national security[19].

The prohibition of refoulement is not limited to the territory of a State, but also applies to extraterritorial State action, including action occurring on the high seas. This is true under international refugee law, as interpreted by the Inter-American Commission on Human Rights[20], the Office of the United Nations High Commissioner for Refugees (UNHCR)[21], the United Nations General Assembly[22] and the House of Lords[23], and under universal human rights law, as applied by the United Nations Committee Against Torture[24] and the United Nations Human Rights Committee[25].

Renowned international law scholars have followed this approach[26].

The fact that some Supreme Courts, such as the United States Supreme Court[27] and the High Court of Australia[28], have reached different conclusions is not decisive.

It is true that the statement of the Swiss delegate to the conference of plenipotentiaries that the prohibition of refoulement did not apply to refugees arriving at the border was supported by other delegates, including the Dutch delegate, who noted that the conference was in agreement with this interpretation[29]. It is also true that Article 33 § 2 of the United Nations Convention relating to the Status of Refugees exempts from the prohibition of refoulement a refugee who constitutes a danger to the security of a country “in which he is”, and that refugees on the high seas are in no country. One might be tempted to construe Article 33 § 1 as containing a similar territorial restriction. If the prohibition of refoulement were to apply on the high seas, it would create a special regime for dangerous aliens on the high seas, who would benefit from the prohibition, while dangerous aliens residing in the country would not.

With all due respect, the United States Supreme Court’s interpretation contradicts the literal and ordinary meaning of the language of Article 33 of the United Nations Convention relating to the Status of Refugees and departs from the common rules of treaty interpretation. According to Article 1 § 1 of the Vienna Convention on the Law of Treaties, a treaty provision should be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. When the meaning of a treaty is clear from its text when read in the light of its letter, object and purpose, supplementary sources, such as the preparatory works, are unnecessary[30]. The historical supplementary source is even less necessary when it is itself not clear, as in this case, since the Ad Hoc Committee responsible for the drafting of the Convention defended the view that the obligation of non-refoulement includes refugees who have not yet entered the territory[31]; the United States representative affirmed during the drafting of Article 33 that it should not matter if the refugee had crossed the border or not[32]; the Dutch representative formulated his reservation only in respect of “large groups of refugees seeking access to its territory”; and the president of the conference of plenipotentiaries merely “ruled that the interpretation given by the Netherlands representative should be placed on record”, that is, that the possibility of mass migrations across frontiers was considered by the Netherlands not to be covered by Article 33[33].

Unlike other provisions of the United Nations Convention relating to the Status of Refugees, the applicability of Article 33 § 1 does not depend on the presence of a refugee in the territory of a State. The only geographical restriction in Article 33 § 1 refers to the country to which a refugee may be sent, not the place where he or she is sent from. In addition, the French term of refoulement includes the removal, transfer, rejection or refusal of admission of a person[34]. The deliberate insertion of the French word in the English version has no other possible meaning than to stress the linguistic equivalence between the verb return and the verb refouler. Furthermore, the preamble of the Convention states that it endeavours to “assure refugees the widest possible exercise of these fundamental rights and freedoms” and this purpose is reflected in the text of Article 33 itself through the clear expression “in any manner whatsoever” (de quelque manière que ce soit), including all types of State actions to expel, extradite or remove an alien in need of international protection. Lastly, no argument can be drawn from the territorial reference in Article 33 § 2 (“the country in which he is”) in support of rejecting the extraterritorial application of Article 33 § 1, because Article 33 § 2 merely provides for an exception to the rule formulated in Article 33 § 1. The scope of application of a rule beneficial to refugees should not be limited by a territorial reference foreseen in the exception to the rule. Such a “spill-over effect” of the detrimental exception to a favourable rule is unacceptable.

According to Article 31 § 1 of the Vienna Convention on the Law of Treaties, a treaty provision should be interpreted in good faith. It is accepted that good faith is not in itself a source of obligations where none would otherwise exist[35], but it does provide an important tool for defining the extension of existing obligations, especially in the face of State actions and omissions which have the effect of circumventing treaty obligations[36]. A State lacks good faith in the implementation of a treaty not only when it infringes, by action or omission, the obligations resulting from the treaty, but also when it frustrates the obligations which it has accepted, by obstructing the normal functioning of the treaty guarantee. The forcible impediment of the triggering mechanism of application of a treaty obligation constitutes an obstruction to the treaty itself, contrary to the principle of good faith (the obstruction test). A State also lacks good faith when it engages in conduct outside its territory which would be unacceptable inside in view of its treaty obligations (the double-standard test). A double-standard policy based on the place where it is executed infringes the treaty obligation, which is binding on the State in question. The application of both tests leads to the conclusion that “push-back” operations performed on high seas, without any assessment of the individual needs for international protection, are unacceptable[37].

One last obstacle to the prohibition of refoulement lies in the territory of origin of the asylum-seeker. The United Nations Convention relating to the Status of Refugees requires that the individual be outside his or her country of origin, which seems to be incompatible with diplomatic asylum, at least when this concept is interpreted in accordance with the International Court of Justice’s conservative reasoning in the Asylum Case[38]. But the right to seek asylum requires the complementary right to leave one’s country to seek asylum. States cannot therefore restrict the right to leave a country and find effective protection outside it[39]. Although no State has a duty to grant diplomatic asylum, the need for international protection is even more pressing in the case of an asylum-seeker who is still in the country where his or her life, physical integrity and liberty are under threat. Proximity to the sources of risk makes it even more necessary to protect those at risk in their own countries. If not international refugee law, at least international human rights law imposes on States a duty to protect in these circumstances and failure to take adequate positive measures of protection will constitute a breach of that law. States cannot turn a blind eye to an evident need for protection. For instance, if a person in danger of being tortured in his or her country asks for asylum in an embassy of a State bound by the European Convention on Human Rights, a visa to enter the territory of that State has to be granted, in order to allow the launching of a proper asylum procedure in the receiving State. This will not be a merely humanitarian response, deriving from the good will and discretion of the State. A positive duty to protect will then arise under Article 3. In other words, a country’s visa policy is subject to its obligations under international human rights law. Significant statements to this effect have been made by the Parliamentary Assembly of the Council of Europe[40], the European Committee for the Prevention of Torture[41] and UNHCR[42].

This conclusion is also borne out by European history. In fact, there were several remarkable episodes relating to protective visas in Europe during the Second World War. The efforts of the Swedish diplomat Wallenberg and others in Budapest, and of the Portuguese diplomat Sousa Mendes in Bordeaux and Bayonne are well-known examples and have recently been mentioned as a valid precedent for the establishment of a formal protected entry procedure through diplomatic missions of European Union member States[43].

It is worth recalling the latter episode: after the invasion of France by Nazi Germany and the surrender of Belgium, thousands of people fled to southern France, particularly to Bordeaux and Bayonne. Touched by the despair of these people, the Portuguese Consul of Bordeaux, Aristides de Sousa Mendes, found himself in a painful dilemma: should he comply with the clear orders of a 1939 governmental circular to refuse any visa to stateless persons, “persons with Nansen passports”, “Russians”, “Jews expelled from their countries of citizenship or residence” or all those “who were not in a condition to return freely to their countries of origin” or should he follow his conscience and international law, disobey the government’s orders and grant these visas? He chose to follow his conscience and international law and granted visas to more than 30,000 people persecuted on grounds of their nationality, religious belief or political affiliation. For that act of disobedience, the Consul paid a high price: after being expelled from his diplomatic career, he died alone and in misery and his entire family had to leave Portugal[44].

Had this episode taken place today, the Portuguese diplomat would have acted in full accordance with the standard of protection of the European Convention on Human Rights. Indeed, his action would have been the only acceptable response to those in need of international protection.

The prohibition of collective expulsion

The non-refoulement obligation has two procedural consequences: the duty to advise an alien of his or her rights to obtain international protection and the duty to provide for an individual, fair and effective refugee-status determination and assessment procedure. Discharging the non-refoulement obligation requires an evaluation of the personal risk of harm, which can only take place if aliens have access to a fair and effective procedure by which their cases are considered individually. The two aspects are so intertwined that one could say they are two sides of the same coin. Thus, the collective expulsion of aliens is unacceptable. The prohibition of collective expulsion of aliens is foreseen in Article 4 of Protocol No. 4 to the European Convention on Human Rights, Article 19 § 1 of the Charter of Fundamental Rights of the European Union, Article 12 § 5 of the African Charter on Human and People’s Rights, Article 22 § 9 of the American Convention on Human Rights, Article 26 § 2 of the Arab Charter on Human Rights, Article 25 § 4 of the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms and Article 22 § 1 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. For the refugee-status determination procedure to be individual, fair and effective, it must necessarily have at least the following features: (1) a reasonable time-limit in which to submit the asylum application; (2) a personal interview with the asylum applicant before the decision on the application is taken; (3) the opportunity to submit evidence in support of the application and dispute evidence submitted against the application; (4) a fully reasoned written decision by an independent first-instance body, based on the asylum-seeker’s individual situation and not solely on a general evaluation of his or her country of origin, the asylum-seeker having the right to rebut the presumption of safety of any country in his or her regard; (5) a reasonable time-limit in which to appeal against the decision and automatic suspensive effect of an appeal against the first-instance decision; (6) full and speedy judicial review of both the factual and legal grounds of the first-instance decision; and (7) free legal advice and representation and, if necessary, free linguistic assistance at both first and second instance, and unrestricted access to UNHCR or any other organisation working on behalf of UNHCR[45].

These procedural guarantees apply to all asylum-seekers regardless of their legal and factual status, as has been recognised in international refugee law[46], universal human rights law[47] and regional human rights law[48].

This conclusion is not prejudiced by the fact that the Court has decided that Article 6 of the European Convention is not applicable to expulsion or asylum procedures[49]. Neither is it prejudiced by the fact that some procedural guarantees in respect of expelled aliens can be found in Article 1 of Protocol No. 7. Article 4 of Protocol 4 and Article 1 of Protocol No. 7 are of the same nature: both are due procedure provisions, but they have substantially different personal scope. The due procedure provision of Article 4 of Protocol No. 4 is of much broader personal scope than the one provided for in Article 1 of Protocol No. 7, since the former includes all aliens regardless of their legal and factual status and the latter includes only aliens lawfully resident in the expelling State[50].

Having accepted the application of the non-refoulement principle to any State action conducted beyond State borders, one must logically go on to conclude that the procedural guarantee of individual evaluation of asylum claims and the ensuing prohibition of collective expulsion are not limited to the land and maritime territory of a State but also apply on the high seas[51].

In fact, neither the letter nor the spirit of Article 4 of Protocol No. 4 indicates that the provision is not applicable extraterritorially. The letter of the provision has no territorial limitation. In addition the provision refers very broadly to aliens, and not to residents, nor even to migrants. The purpose of the provision is to guarantee the right to lodge a claim for asylum which will be individually evaluated, regardless of how the asylum-seeker reached the country concerned, be it by land, sea or air, be it legally or illegally. Thus, the spirit of the provision requires a similarly broad interpretation of the notion of collective expulsion which includes any collective operation of extradition, removal, informal transfer, “rendition”, rejection, refusal of admission and any other collective measure which would have the effect of compelling an asylum-seeker to remain in the country of origin, wherever that operation takes place. The purpose of the provision would be easily frustrated if a State could place a warship on the high seas or at the limit of national territorial waters and proceed to apply a collective and blanket refusal of any refugee claim or even omit any assessment of refugee status. The interpretation of the provision should therefore be consistent with the aim of protecting aliens from being collectively expelled.

In conclusion, the extraterritoriality of the procedural guarantee of Article 4 of Protocol No. 4 to the European Convention on Human Rights is in full accordance with the extraterritorial extension of the same guarantee in international refugee law and universal human rights law.

State liability for human rights breaches during immigration and border control

Immigration and border control is a primary State function and all forms of this control result in the exercise of the State’s jurisdiction. Thus, all forms of immigration and border control of a State party to the European Convention on Human Rights are subject to the human rights standard established in it and the scrutiny of the Court[52], regardless of which personnel are used to perform the operations and the place where they take place.

Immigration and border control is usually performed by State officials placed along the border of a country, especially in places of transit of people and goods, such as ports and airports. But it can also be performed by other professionals in other places. In fact, the formal capacity of the State official performing the border control or the fact that he or she carries arms are irrelevant. All representatives, officials, delegates, public employees, police officers, law-enforcement agents, servicemen/women or temporarily contracted civil staff or any member of a private undertaking acting pursuant to statutory authority who perform the function of border control on behalf of a Contracting Party are bound by the Convention standard[53].

It is also immaterial whether the immigration or border control takes place on the land or maritime territory of a State, its diplomatic missions, warships, ships registered in the State or under its effective control, a navy of another State or a facility placed on the territory of another State or a territory leased from another State, as long as the border control is performed on behalf of the Contracting Party[54]. A State cannot evade its treaty obligations in respect of refugees by using the device of changing the place of determination of their status. A fortiori, “excision” of a part of the territory of a State from the migration zone in order to avoid the application of general legal guarantees to people arriving at that part of “excised” territory represents a blatant circumvention of a State’s obligations under international law[55].

Thus the full range of conceivable immigration and border policies, including denial of entry to territorial waters, denial of visa, denial of pre‑clearance embarkation or provision of funds, equipment or staff to immigration-control operations performed by other States or international organisations 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[56].

State jurisdiction over immigration and border control naturally implies State liability for any human rights violations occurring during the performance of this control. The applicable rules on international liability for human rights violations are those established in the Articles on State Responsibility for internationally Wrongful Acts, annexed and endorsed by the UNGA Resolution 56/83, 2001[57]. The Contracting Party remains bound by the Convention standard and its responsibility is not diminished by the fact that a non-Contracting Party is also responsible for the same act. For instance, the presence of an agent from a non-Contracting Party on board a warship of a Contracting Party or a navy under the effective control of a Contracting Party does not release the latter from its Convention obligations (Article 8 of the Articles on State Responsibility). On the other hand, the presence of an agent from a Contracting Party on board a warship of a non-contracting party or a navy under the effective control of a non-Contracting Party makes the cooperating Contracting Party responsible for any breaches of the Convention standard (Article 16 of the Articles on State Responsibility).

The violation of the Convention standard by the Italian State

According to the above-mentioned principles, the Italian border control operation of “push-back” on the high seas, coupled with the absence of an individual, fair and effective procedure to screen asylum-seekers, constitutes a serious breach of the prohibition of collective expulsion of aliens and consequently of the principle of non-refoulement[58].

The contested “push-back” action involved the removal of the applicants on board a military vessel of the Italian navy. Traditionally, ships on the high seas are viewed as an extension of the territory of the flag state[59]. This is an irrefutable assertion of international law, which has been enshrined in Article 92 § 1 of the United Nations Convention on the Law of the Sea (UNCLOS). This assertion is even more valid in the case of a warship, which is considered, to quote Malcolm Shaw, “a direct arm of the sovereign of the flag State”[60]. Article 4 of the Italian Navigation Code contains that very principle when it states that “Italian vessels on the high seas in places or areas which are not covered by the sovereignty of a State are deemed to be Italian territory”. In conclusion, when the applicants boarded the Italian vessels on the high seas, they entered Italian territory, figuratively speaking, ipso facto benefiting from all the applicable obligations incumbent on a Contracting Party to the European Convention on Human Rights and the United Nations Convention relating to the Status of Refugees.

The respondent Government argued that the push-back actions on the high seas were justified by the law of the seas. Four grounds of justification could be considered: the first one, based on Article 110 § 1 (d) of the UNCLOS, in conjunction with Article 91, which permits the boarding of vessels without a flag State, like those which commonly transport illegal migrants across the Mediterranean Sea; the second one based on Article 110 § 1 (b) of the UNCLOS, which allows ships to board vessels on the high seas if there is a reasonable ground for suspecting that the ship is engaged in the slave trade, this ground being extendable to victims of trafficking, in view of the analogy between these forms of trade[61]; the third one, based on Article 8 §§ 2 and 7 of the Protocol against Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime, which allows States to intercept and take appropriate measures against vessels reasonably suspected of migrant smuggling; and the fourth one founded on the duty to render assistance to persons in danger or in distress on the high seas foreseen in Article 98 of the UNCLOS. In all these circumstances States are simultaneously subject to the prohibition of refoulement. None of these provisions can reasonably be invoked in order to justify an exception to the non-refoulement obligation and, consequently, to the prohibition of collective expulsion. Only a misconstruction of these norms, which aim to secure the protection of especially vulnerable persons (victims of trafficking, illegal migrants, persons in danger or in distress on the high seas) could justify the exposure of these persons to an additional risk of ill-treatment by delivering them to those countries from which they have fled. As the French representative, Mr Juvigny, said at the Ad Hoc Committee while discussing the draft of the United Nations Convention relating to the Status of Refugees, “there was no worse catastrophe for an individual who had succeeded after many vicissitudes in leaving a country where he was being persecuted than to be returned to that country, quite apart from the reprisals awaiting him there”[62].

If there were ever a case where concrete measures for execution should be set by the Court, this is one. The Court considers that the Italian Government must take steps to obtain assurances from the Libyan government that the applicants will not be subjected to treatment incompatible with the Convention, including indirect refoulement. This is not enough. The Italian Government also have a positive obligation to provide the applicants with practical and effective access to an asylum procedure in Italy.

The words of Justice Blackmun are so inspiring that they should not be forgotten. Refugees attempting to escape Africa do not claim a right of admission to Europe. They demand only that Europe, the cradle of human rights idealism and the birthplace of the rule of law, cease closing its doors to people in despair who have fled from arbitrariness and brutality. That is a very modest plea, vindicated by the European Convention on Human Rights. “We should not close our ears to it.”