‘One, No One, One Hundred Thousand’

International migrants seek protection or better opportunities in foreign States.  Once they arrive in the territory of these States, they are entitled to various protections, including the prohibition of collective expulsion and the assurance of at least some human rights. In an attempt to control migratory flows and curb irregular migration, States have progressively ‘externalised’ migration controls through several mechanisms that eventually prevent human rights safeguards from being applied. States use mechanisms such as visas, maritime interdiction operations, pushback practices to unsafe countries to prevent migrants from reaching their shores, applying for asylum, or invoking fundamental rights guarantees.

This raises the question of whether and to what extent States have extraterritorial obligations towards migrants who have not yet reached the territory of destination countries. These include migrants at sea, migrants in detention centres abroad, or migrants applying for a visa outside the territory.

By focusing on recent practices in the Mediterranean, this post addresses this overarching question. I suggest that the complexity and normative hybridity of migration contexts can be more effectively tackled through the prism of regime interaction, allowing different branches of international law to play a synergic role aimed at ensuring a common goal, most notably the duty to protect life.

Migrants’ Fundamental Rights Beyond Territorial Borders

Extraterritorial human rights obligations (ETHROs) represent a relatively new and transformative development in public international law. While human rights are understood as universal, territoriality is a limitation to their enforcement. This enforcement has traditionally been confined within national borders, leaving many individuals vulnerable to violations of their rights. As the predominant approach has been that human rights obligations extend no further than a State’s territorial borders, extraterritorial obligations attempt to provide an answer to the gaps in human rights protection that persist outside the State’s territory or in international spaces such as the high sea where most migration-related incidents occur.

The International Organization for Migration (IOM) has detected a total of 566,783 interceptions at sea in the Mediterranean in the period between 2016 and March 2024. While these do not necessarily occur on the high sea, they confirm how the sea route constitutes a scenario in which human rights obligations can easily be diluted: the further from the coast an incident occurs, the more elusive the applicable legal norms become. This often leads to issues of coordination between various international legal regimes.

The Human Rights Committee’s decision in A.S. and Others v. Italy provides an illustration of the problem. The case concerned a group of around 400 people, mostly Syrian nationals, who embarked on a fishing vessel in Libya trying to reach Europe.  As large quantities of water were entering the vessel, people on board the sinking vessel called Italian authorities several times asking for help. The Italian authorities passed on the messages to the Maltese authorities, as the vessel was located within the Maltese Search and Rescue Zone, but did not intervene until the Maltese authorities asked them to later that day. An Italian navy ship (ITS Libra) near the distressed boat only arrived at the scene when it was too late, between five to seven hours after Italian authorities were first informed of the coordinates of the sinking vessel. In the end, 200 migrants aboard the vessel drowned, including 60 children.

Given that the incident occurred on the high seas, the HRC had to establish whether the victims were within Italy’s jurisdiction for the purposes of the International Covenant on Civil and Political Rights (ICCPR). The answer to this jurisdictional question requires the possible engagement with different international law regimes, namely the specific regime for search and rescue under the law of the see as well as international human rights law.

Stretching Jurisdiction to Ensure Migrant Protection

In clarifying jurisdictional matters, the HRC overcame the traditional territoriality bias by noting a ‘special relationship of dependency’ between Italian authorities and the individuals aboard the sinking vessel (para. 7.8). It was based on both factual and legal elements, including the initial contact between the individuals and the Italian authorities; the proximity of the Italian vessel ITS Libra; the interpretation of the legal obligations stemming from the law of the sea regime such as the duty to render assistance, today seen as part of customary law.

Invoking its General Comment No. 36 on the right to life, the HRC confirmed that under Article 2(1) of the ICCPR a State party must respect and ensure the right to life for all individuals within its territory and jurisdiction, including those outside its territory affected by its actions in a direct and foreseeable way. This obligation extends to individuals on marine vessels and aircrafts registered by the State or flying its flag as well as those in distress at sea, in line with international rescue obligations.

According to the HRC, the individuals were directly affected by decisions taken by Italian authorities whose consequences were reasonably foreseeable in light of the relevant legal obligations of Italy. In other words, even if the incident happened within the Search and Rescue Zone of Malta, the Committee interpreted the relevant norms from the law of the sea in conjunction with matters of jurisdiction and human rights obligations to base the jurisdiction on Italian authorities’ ability to act.

This case, therefore, provides an example of how human rights bodies “have advanced rather broad interpretations of jurisdictional thresholds” to expand the scope of protection. Additionally, it offers an illustration of how the effective interaction of specialized regimes of international law, notably international human rights law and the law of the sea, can contribute to ensuring the realization of protection needs in complex migration contexts.

Zimmerman in his dissenting opinion criticized the Committee’s reasoning, suggesting the case’s complexity required a solution based on the specialized regime of search and rescue. By contrast, Milanović argued that the HRC ‘preserved the effet utile of the Covenant,’ establishing that ‘a state would have the duty to protect life whenever it was, in fact, capable of complying with that duty.’ By connecting the law of sea regime with international human rights law the Committee essentially overcame the limits that could arise when these regimes work in silos, namely the difficulties in fulfilling paramount objectives, notably the protection of human life.

Regime Interaction as an Antidote

The decision by the HRC in A.S. and Others v. Italy counters the limits of exclusively using specialized regimes to address issues in complex scenarios such as search and rescue on the high seas. In the case under discussion, the exclusive application of the law of the sea would have excluded Italian jurisdiction, as the incident occurred in the Maltese search and rescue zone.

Regime interaction stands out as an antidote to the resulting loss of human rights protection by overcoming the risks of legal fragmentation, a problem to which the International Law Commission (ILC) dedicated a specific Study on self-contained regimes. The notion of ‘self-contained regimes’ refers to the idea that certain specialized areas of international law operate as self-standing legal systems, with their own set of rules, principles, and institutions.

The theory of self-contained regimes acknowledges the need for specialized legal frameworks for certain issues, but this can lead to conflicts. A notable example is the differing views of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Court of Justice (ICJ) on state responsibility for supporting paramilitary forces committing severe human rights abuses or genocide. In the 1984 Nicaragua case, the ICJ ruled that the United States was not responsible for the actions of Nicaraguan contras because its involvement did not meet the ‘effective control’ test. Conversely, in the 1995 Tadić case, the ICTY argued that ‘effective control’ was too stringent and proposed that ‘overall control’ was sufficient for establishing responsibility. This example is illustrative of the normative conflicts that may arise in the international legal system, which lacks a proper institutional hierarchy and whose practice can present scenarios in which different regimes may find application.

The Importance of Regime Interaction in the Context of Migration

This is especially the case in the migration context. Arguably, apart from international human rights law or the law of the sea, migration contexts can trigger the application of international environmental law in light of climate-induced displacement. The latter’s principle of due diligence can complement human rights law as it imposes obligations on States to prevent significant harm to the environment, both within their own territory and beyond, thereby addressing the root causes of environmental displacement. Due diligence encompasses a range of duties that aim to ensure that States act responsibly to avoid causing environmental damage, as recently clarified by the Inter-American Court of Human Rights in its landmark decision in La Oroya case. The decision underscored the State’s obligation to prevent human rights violations by private companies, making clear that companies should have regard to the interactions and interdependencies between environment protection, biodiversity, human rights and sustainable development as part of their human rights due diligence.

Likewise, international criminal law can be relevant to fill in the gap in terms of international responsibility in case of systematic human rights violations against migrants, as illustrated by the case filed with the Office of the Prosecutor of the International Criminal Court (ICC), on the alleged crimes against humanity (Article 7 of the Rome Statute of the ICC) caused by the policy and practice implemented following the 2016 EU-Turkey Statement.

The coordination of all relevant international law regimes is, therefore, key to ensuring that migrants’ rights are upheld, positive obligations correctly identified and responsibilities allocated.