Externalising Migration Control

On 20th of May 2025, after seven years of proceedings, the European Court of Human Rights (ECtHR) declared the case of S.S. and others v Italy inadmissible under Art.1 of the European Convention on Human Rights (ECHR). The decision marks a missed opportunity. Instead of addressing the question of functional jurisdiction in the context of externalised migration control, the Court found that Italy does not enjoy extraterritorial jurisdiction under Art.1 of the Convention over a group of irregular migrants whose ship was wrecked on the high seas near the Libyan coast.

The ruling is another illustration of how externalised border control and “pull-back” policies are becoming normalised in Europe. In applying a narrow interpretation of jurisdiction rather than a functional one, the Court avoided important questions on accountability and state responsibility associated with migration control by proxy. The decision risks widening the gap between human rights regimes and contributes to the emergence of a more limited, self-contained European human rights framework.

Background of the case

On the 6th of November 2017, the Italian Maritime Rescue Coordination Centre (MRCC) received a distressed call from a sinking vessel on the high seas, off the Libyan coast. As a response, the MRCC sent signals to nearby ships via satellite and contacted the Libyan Coast Guard (LYCG), which intercepted the ship and returned it to Italy. Italy claimed that it acted in accordance with the International Convention on Maritime Search and Rescue (SAR) when it signaled to the LYCG. The applicants allege that the arrival of the LYCG’ patrol ship Ras Jadir caused water turbulence that led to the death of 20 passengers. Before the ECtHR, the applicants claimed that Italy violated its obligations under the Convention – including Article 3 – by allowing Libyan coast guards to intercept the ship and return them to Libya, where they risk becoming subject to grave human rights violations.

Extraterritorial jurisdiction before the court

The Court has established the notion of extraterritorial jurisdiction in the infamous Al Skeini and others v. the UK case. In this case, the Grand Chamber (GC) confirmed that state jurisdiction could be established if there is an “effective control over an area outside its own territory” (para. 139). In determining the existence of effective control, the GC referred to situations of military presence, or other factors “such as the extent to which [a state’s] military, economic and political support for the local subordinate administration” is given (para. 139). Subsequently, the Court applied the principle of extraterritorial jurisdiction to immigration cases in Hisri Jama and others v Italy, where Italy was found to be violating the Convention by forcibly returning migrants from the high seas to Libya on Italian military vessels. As they were transferred on Italian military vessels, the Court determined that “the applicants were under the continuous and exclusive de jure and de facto control” of Italy (para. 81).

In S.S. and others v Italy, the Court found that Italy did not exercise such effective control. Specifically, the presence of Italian naval forces in the area did not amount to an effective control exercise (para. 92). The Court then confirmed that the bilateral agreements on migration management between Libya and Italy do not necessarily make Libya dependent on Italy. In other words, these agreements by themselves are not sufficient to establish a situation of effective control by Italy over Libya (paras. 94-97).

Functional reading of jurisdiction

S.S. and others would have presented the first case before the ECtHR regarding the pull-back policies that Italy – supported by the European Union (EU) – has been applying in lieu of push-back policies. Rather than engaging in direct pushbacks, as in the Hisri case, Italy has outsourced the practice by coordinating a pull-back policy with Libyan authorities, who carry out the returns by proxy. This strategy creates a legal grey zone that enables Italy to circumvent its obligations under the Convention while effectively achieving the same outcome.

In Hisri’s case, the Court dealt with push-back policies and ruled in favor of establishing extraterritorial jurisdiction. In S.S., however – since there was no active involvement in the act of returning migrants itself – the Court found that Italy lacked the effective control necessary to establish such jurisdiction. In doing so, the Court missed an opportunity to address the question of jurisdiction from a functional perspective – that is, as understood by Moreno-lax, in terms of state powers that manifest in policies, legislative acts, executive decisions, judicial rulings and other public powers exercised by the state. In this light, she explains that effective control over individuals or territories will not be the only criterion to invoke ECHR obligations, as control over policy planning and operational execution, “performed or producing effects abroad,” would also count as functions of public powers. Hence, these actions enable the state’s exercise of “personal or spatial control” and are consequently a manifestation of the state’s power as a sovereign. In S.S. and others, a functional approach entails a critical reading on the role of Italian policies and operational support to Libya as expressions of public powers to establish jurisdictional nexus between the state and concerned individuals under Art. 1 of the Convention.

In the case AS and others v Italy, the Human Rights Committee (HRC) followed such a functional approach to jurisdiction that allowed it to supersede the territoriality criterion. This case also involved sea rescue operations on the high seas. The Committee established jurisdiction by looking at whether “a special relationship of dependency had been established between the individuals on the vessel in distress and Italy” (para. 7.8). Among the elements of dependency were the call of distress, proximity and foreseeability. In para. 7.5, the Committee refers to paragraph 63 of the General Comment no.36 that explains states’ responsibility “to respect and ensure the rights under article 6 of […] all persons subject to its jurisdiction… and of those individuals who find themselves in a situation of distress at sea…” This decision by the HRC employed a functional understanding of jurisdiction and aimed at addressing the “accountability gap” resulting from the externalisation of border control (Madjidian, 2021).

It is notable that the ECtHR has not yet referred to General Comment no.36 in its decisions under Article 2 of the Convention, and also did not refer to the Comment or to AS and others v Italy in its admissibility decision on S.S. and others. The Court rejected the notion that economic and technical support provided by Italy to Libya as part of the former’s externalisation policies and bilateral agreements, would amount to a dependency situation that gives rise to “effective control” by Italy over the maritime zone (para. 97). According to the Court, the agreements between Italy and Libya – in addition to the coordination efforts exercised by the MRCC – also do not constitute an exercise of “public powers” for the purpose of establishing jurisdiction (paras. 96, 103-4).

The support provided by Italy to Lybia has been significant, however. The coordination between the two countries on rescue operations is regulated by the Italian-Libyan Memorandum of Understanding (MoA) on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling, and on reinforcing the security of borders between the State of Libya and the Italian Republic.

This memorandum allowed for the coordination efforts to take place by providing funding, technical support, and equipment. As a result, Italy provided the LYCG with patrol assets, leading to increased cases of pull-backs. The signing of the memorandum had direct and immediate effects on pull-back operations. The LYCG performed 19,452 pull-back operations in 2017 alone; a steep rise from only 800 in 2015. The reality that has emerged since the 2017 Memorandum – marked by close coordination and the provision of crucial technical assistance – is, as Moreno-Lax emphasises, a clear indication of the “decisive influence” Italy exercises over the Libyan Coast Guard throughout the entire process of intercepting migrants on the high seas. This level of support enabled the full operational capacity of the LYCG, leading to increased interceptions that were associated with gross human rights violations against migrants.

As such, the significant support is also an exercise of public powers. The prevalent role of Italy in sustaining the LYCG operations, providing them with patrol vessels, training Libyan coast guards, setting-up the MRCC, and actively participating in SAR operations places Libya under the decisive influence of Italy. These findings have been confirmed by human rights and humanitarian organisations, including Amnesty International and Human Rights Watch, in their submission to the Court (Para. 72-76). The significant role of Italy was even confirmed by the state itself in their 2017 report to the International Maritime Organization (IMO), where they referred to the “key role” that Italy plays in supporting the capacities of Libyan authorities in sea search and rescue operations (para.27). Thus, together with materialisation of this support through direct action taken by Libya in closed coordination with Italy, it should have resulted in the establishment of de facto Italian responsibility and jurisdiction, had the Court adopted a functional approach.

Another aspect that the Court could have investigated further is the concept of attribution under the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) to determine and assess the extent to which operational and capacity-building aid, offered to Libya, would render Italy responsible for the human rights violations committed by Libya. The ECtHR has previously referred to ARISWA to structure its legal analysis in Al Masri v. The Former Yugoslav Republic of Macedonia. In the case of S.S and others, entering into agreements with countries of questionable fundamental rights records, fully aware of the foreseeable violations of human rights and jus cogens norms against migrants, and providing critical planning and operational support that enable these violations, may render the resulting actions attributable to both Italy and Libya.

Normalising externalisation policies

The recent decision in S.S. and others is a continuation of the narrower interpretation of jurisdiction followed by the ECtHR and the rejection of a cause-effect nexus as a basis of jurisdiction. By rejecting a functional argument of jurisdiction, the Court normalises externalisation policies and migration control by proxy as means of protecting Contracting States from any responsibility toward “irregular migrants”. Moreover, the Court ruling on the lack of jurisdiction under Art.1 exacerbates the differences and affirms inconsistences between the UN regime (e.g., HRC decision in AS and others) and the ECHR framework.

As the case did not meet the jurisdiction requirement under the Convention, the Court opted to a mere reference to the duties of the states under other international law areas while acknowledging the serious concerns raised by NGOs and other parties regarding the human rights violations against migrants in Libya (see paras.109-113). The narrow interpretation followed by ECtHR risks normalising the by proxy migration regime that shields Contracting States from any form of accountability while undermining the purpose and spirit of the ECHR as an instrument that protects human rights and upholds democratic ideals.