Electronic copy available at: http://ssrn.com/abstract=2096156
The legality of intercepting boat people
under search and rescue and border
controloperations
withreferencetorecentItalianinterventionsintheMediterraneanSea
and the ECtHR decision in the Hirsicase
MatteoTondini
Former military legal adviser (reserve officer) to the Italian Navy General Staff, Office of Legal Affairs*
This article briefly addresses the legal grounds for the interception of boat people on the
high seas by military vessels, taking into account the Italian Navy's policy on the matter. If
interceptions are conducted within the framework of an `extraterritorial' border control
operation, their legality is hardly sustainable. Conversely, when interventions are
implemented as search and rescue (SAR) operations, their legal basis is much wider,
provided that intervening states' obligations under the SAR legal regime are coupled with
those stemming from the prohibition of refoulement under international refugee law. As a
result, rescued migrants can only be disembarked to `safe third countries', namely countries
in which they do not run the real risk of being persecuted or returned to other countries `at
risk'. According to some very recent international and national jurisprudence, including the
European Court of Human Rights' decision in the Hirsi, before disembarking migrants,
intervening states should in principle carry out a positive assessment on the functionality of
the recipient country's asylum system. In order to assess clearly the legality per se of inter-
ceptions, this article supports the necessity of applying a prevalence criterion, according to
which if the SAR character prevails over the objective of preventing irregular migration, the
intervention in question should be considered an authentic and lawful salvage operation.
Introduction
Legally speaking, in the context of a naval operation, the use of the word `interception' is
somewhat vague and ambiguous. In military terminology, saying that a warship intercepts a
`target', whatever it is, means that the warship in question has an interest in approaching that
target or even preventing it from continuing its journey, but it does not explain the purpose of
* Editor-in-Chief of Military Law and the Law of War Review; Member International Institute of Humanitarian Law. This
article is a revised and updated version of a paper presented in the author's private capacity at the International
Seminar `Conflict Situations and Migration Flows in the Mediterranean Area' held at the Sanremo IIHL on 5 November
2011. The paper presented at Sanremo will also appear in the publications of the seminar. The views and opinions
expressed are solely those of the author and do not bind in any manner whatsoever the Italian Ministry of Defence, the
Italian Navy, the Italian Navy General Staff or the Office of Legal Affairs. Notes and comments to m.tondini@gmail.com.
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Electronic copy available at: http://ssrn.com/abstract=2096156
the action or the conduct of the action. Similarly, the `interception' by a warship on the high
seas of a vessel with a good number of people on board �� who could be irregular migrants
attempting to reach the coasts of a certain state �� is somewhat non-specific in both legal and
operational terms. The interception of a vessel can be performed, for instance, as a part of
those `naval constabulary powers'1 that warships are mandated to exercise in peacetime, or
otherwise it may be implemented in the course of a rescue operation. In addition,
interception can be requested or authorised by the intercepted vessel's flag state for law
enforcement purposes or even conducted with the master's consent for safety reasons.2 The
powers and actions that a warship can legally exercise when coming across a vessel with
undocumented migrants on board will depend on the combination of certain factors and
circumstances. As a consequence, any generalisation before the event on the illegality per se
of such operations is misguided.
However, when interception on the high seas is conducted as part of a border control
operation, its legal basis becomes even more tenuous, owing to the lack of a solid
international legal regime applicable to extraterritorial anti-illegal immigration operations.
Therefore if an operation falls into this category, these actions become problematic for
intervening states. Conversely, interventions carried out under the SAR legal framework are
far less controversial, although such interceptions often end up hinging on the boat people's
will to be `saved'. The operation's nature and applicable legal regime are therefore not
insignificant to the implementation of naval activities. Carrying out a SAR intervention entails
limits, for example, to the use of force by naval officers, which are much narrower than those
applicable to a border control operation. Persisting in labelling the `interception' of boat
people on the high seas as `border control operations' may thus be counterproductive and
lead to unexpected and `painful' consequences, including exposing intervening states to legal
liability, as the recent decision of the European Court of Human Rights (ECtHR) in the Hirsi
case clearly demonstrates.3 Thus saying the right thing means doing the right thing.
In addition, even when boat people are intercepted on a sound legal basis, the aftermath of
intervention may turn out to be complex for the warship's crew. What should be done with
the undocumented people found on board? Are the warship's commanding officer and crew
responsible for their fate and, if so, to what extent?
In light of these and many other questions posed by this practice, this article briefly analyses
the legal basis of migrants' interception by warships on the high seas, also referring to the
Italian Navy's experience on the matter (which is not necessarily the same as that of other
Italian state agencies �� such as the Coastguard or the Guardia di Finanza �� also involved in
migration control operations) and taking into account the ECtHR ruling in Hirsi. The first
section shows how the border control operations' legal regime is unfit to regulate such
interventions, while the second section explains that the SAR legal regime may well represent
a suitable legal basis for this purpose and also tackles the issue of the disembarkation of
migrants to a `place of safety'. The third section is dedicated to the parallel application of the
principle of non-refoulement and the SAR legal regime, with further consequences for the
disembarkation of migrants. In the fourth section the possibility of disembarking rescued
migrants to a `safe third country' is examined, and how this can be carried out lawfully in light
of the rules elaborated by the most recent international jurisprudence on the transfer of
asylum-seekers to third countries analysed. The fifth section is entirely dedicated to analysis
1 On the matter of constabulary roles for warships see M Pugh (ed) Maritime Security and Peacekeeping (Manchester
University Press Manchester 1994).
2 The legal basis for boarding a vessel with the master's consent only (ie in the absence of the flag state's consent)
remains questionable when exercised other than for maritime safety reasons.
3 Hirsi Jamaa and Others v Italy, ECtHR (GC) Application No 27765/09, filed on 26 May 2009 (judgment of 23 February
2012) (Hirsi) at www.echr.coe.int. The Hirsi case is discussed in more detail in section V.
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of the Hirsi case and a parallel is drawn between the principles set out in the preceding
section and those developed by the Strasbourg Court. The conclusion summarises the
article's main findings and proposes a workable solution to the control of migration flows,
with the contribution from the Navy.
I The legal regime of border control operations unfit for interceptions on the high seas
Under Italian domestic law,4 the Italian Navy is mandated to assist other state agencies in
tackling the smuggling of migrants at sea. Conducting anti-illegal immigration operations is
thus not among the Italian Navy's principal tasks, although the Navy is duty-bound to assist
when requested to do so by the Ministry of Interior (MoI).5 In particular, on the high seas, the
Navy is tasked with monitoring, surveillance, identification and control of vessels suspected
of carrying smuggled migrants on board.6 In practice, this mainly entails spotting, identifying
and tracking the vessels in question. Flag requests,7 as well as the right of visit,8 can be
exercised only `when necessary requirements are met',9 that means in conformity with the
applicable international law,10 domestic statutes and/or agreements with the intercepted
vessel's flag state. A 2003 MoI Decree also specifies that anti-smuggling and SAR operations
can be undertaken in parallel.11 This hypothetical combination of legal regimes reflects the
uncertainty as to the operational nature of interventions. Indeed, an anti-illegal immigration
operation may easily turn into a salvage mission and vice versa. When intervention is
practically carried out, however, the two legal frameworks cannot apply simultaneously but
must be on the basis of the true nature of the intervention itself, although nothing would in
principle prevent them from applying in succession.
Nevertheless, the application of the border control legal regime may become quite prob-
lematic. In fact, both scholars12 and domestic jurisprudence13 confirm that the interception of
boat people on the high seas may hardly constitute a migration control operation with further
application of relevant international,14 EU15 and domestic16 migration law provisions. Migrants
are in fact halted before entering the territorial waters of intervening states and, as a
consequence, it becomes difficult to define their interception and diversion/forced return to
4 Code of Military Order (Legislative Decree No 66/2010) art 111(1b); Migration Act of 1998 (Law No 1998/286) art
12(9bis��9sexies); Decree of the Ministry of Interior of 14 July 2003 (2003 MoI Decree).
5 2003 MoI Decree art 3(2).
6 ibid art 5(1).
7 For a definition of `flag request' see F Caffio `Glossario di diritto del mare' (2007) 5 Rivista Marittima 3 (Supplement)
61��62.
8 For a definition of `right of visit' see ibid 51��52.
9 2003 MoI Decree art 7(2).
10 Namely, inter alia, according to the UN Convention on the Law of the Sea (UNCLOS) (adopted on 10 December 1982)
1833 UNTS 3 art 110.
11 2003 MoI Decree art 2(4).
12 See eg M Pallis `Obligations of states towards asylum seekers at sea: interactions and conflicts between legal
regimes' (2002) 14 (2��3) International Journal of Refugee Law 329��64 at 353.
13 See eg Court of Cassation, I Sec, Decision No 32960 (8 September 2010) www.cortedicassazione.it, restricting the
Italian jurisdiction against the smuggling of migrants to Italian territorial waters. See also G Andreone `Immigrazione
clandestina, zona contigua e Cassazione italiana: il mistero si infittisce' (2011) 5 Diritti Umani e Diritto Internazionale 1
183��87.
14 See eg Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations
Convention against Transnational Organized Crime (Palermo Protocol on Smuggling �� II Palermo Protocol) UN Doc
A/55/383 (15 November 2000).
15 Regulation (EU) 1168/2011 of the European Parliament and of the Council of 25 October 2011 amending Council
Regulation (EC) 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the
External Borders of the Member States of the European Union OJ L304/1 (22 November 2011); Council Decision of
26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the
context of operational cooperation coordinated by the European Agency for the Management of Operational Co-
operation at the External Borders of the Member States of the European Union (2010/252/EU) OJ L111/20 (4 May 2010).
16 See eg Migration Act 1998, as further amended.
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a third country as a deportation tout court. Accordingly, the migration law provisions
mentioned above have never been applied during interceptions performed to date by Italian
forces in the Mediterranean Sea.17
II The SAR legal regime as the only available instrument and the disembarkation of
migrants
Conversely, the legal basis of interceptions carried out under the SAR legal framework is
much wider. The principle of assistance to persons in distress at sea is in fact contained in
several maritime law conventions, including UNCLOS,18 the SAR Convention19 and the SOLAS
Convention.20 Unsurprisingly then, as far as the author knows, whenever the Italian Navy has
been requested to intercept boat people on the high seas (and so far this has occurred only
rarely) its approach has always been that of considering such operations as SAR interventions.21
This approach, however, is not immune from problems. First of all, the intercepted vessel must
be `in distress', a status that is not yet clearly defined in international maritime law.22 Secondly,
the intervention basically depends on the boat people's will to be rescued, as �� also logically �� it
is the vessel in peril that launches the distress call. In addition, the vessel could hypothetically
resist the warship's `rescue attempt', putting at risk the lives of people on board.23 In the case
of active resistance, the interception cannot fall within the SAR legal regime.
According to the SAR Convention, states should provide to those in distress at sea the `most
appropriate assistance available'.24 While this in turn depends on the concrete circumstances
of the case, the most challenging issue arising out of the application of the SAR legal
framework is that of the disembarkation of migrants. In this context, following the
amendments to the SAR and SOLAS Conventions decided in 2004 by the International
Maritime Organization (IMO), people (and thus also migrants) rescued at sea must now be
promptly conducted to a `place of safety'. The latter is defined as:
. . . a location where rescue operations are considered to terminate. It is also a place where the
survivors' safety of life is no longer threatened and where their basic human needs (such as
food, shelter and medical needs) can be met. Furthermore, it is a place from which
transportation arrangements can be made for the survivors' next or final destination.25
17 For instance, if considered anti-illegal immigration operations undertaken on the basis of the II Palermo Protocol,
interceptions should also see the competent national authorities opening criminal investigations and collecting
evidence. Migrants should in turn be individually identified and heard as witnesses/indicted persons, while vessels
should be seized and examined. Reportedly, no such activities have so far been carried out by the Italian authorities
during interceptions.
18 UNCLOS arts 18(2), 98(1).
19 International Convention on Maritime Search and Rescue (adopted on 27 April 1979) 1403 UNTS Annex Ch 2 arts
2.1.9, 2.1.10.
20 International Convention for the Safety of Life at Sea (adopted on 1 November 1974) 1184 UNTS 3 Ch 5 regs 7, 33(1).
21 For example, during the Summer 2009 interception operations (which recently led to the Hirsi judgment (n 3)
referred to in Section V), the Italian Navy intervened only twice, on 10 May and 1 July 2009. The other interceptions
were conducted by the Coastguard and the Guardia di Finanza. Migrants were initially stopped in international waters
by Italian military vessels, then taken on board and returned directly to Libyan ports. During 2009, Italian vessels
carried out 11 interception operations (nine towards Libya and two towards Algeria), resulting in the forced return of
834 and 51 migrants respectively to the Libyan and the Algerian coasts; (Ministry of Interior `Italian initiatives: security,
immigration, asylum') (Rome 14 April 2010) 27 www.interno.it/mininterno/export/sites/default/it/assets/files/19/0844_
Opuscolo_ENGL_DEF.pdf.
22 See R Barnes `Refugee law at sea' (2004) 53 International & Comparative Law Quarterly 1��77 at 58��59; M Pugh
`Drowning, not waving: boat people and humanitarianism at sea' (2004) 17 Journal of Refugee Studies 1 50��69 at 58��59.
23 Bearing in mind that the vessel is already considered `in distress' by the warship, otherwise it could not begin the
`rescue operation'.
24 SAR Convention Annex Ch 2 art 2.1.9.
25 IMO-Maritime Safety Committee `Guidelines on the treatment of persons rescued at sea' (MSC Guidelines) art 6.12
Resolution MSC.167(78) (20 May 2004) www.unhcr.org/refworld/docid/432acb464.html.
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The `place of safety' concept is so broad as to include the warship conducting the salvage,
but only on a temporary basis.26 Indeed, the `place of safety' is not necessarily located on
land, but could be `aboard a rescue unit or other suitable vessel or facility at sea', pending
the final disembarkation of survivors.27 Making available a place of safety is the responsibility
of the country in whose SAR zone the survivors are recovered.28 However, this principle
does not automatically entail an obligation for that state or for the intervening state to
disembark rescued people on its own territory. Indeed, survivors could possibly be
disembarked in a third country that is willing to accept them. However, the fact that the
people in question appear (and most likely are) undocumented migrants does not facilitate
the procedure.
While international maritime law does not formally impose upon states an obligation to grant
boat people access to their territory, it is clear that �� in practice �� the `disembarkation burden'
rests primarily upon the warship's flag state, with the SAR coordinating state concurring.
When the latter is unable or unwilling to find a proper place of disembarkation, experience
shows that it is the warship's flag state which �� in the end �� must find an appropriate solution
to the stalemate.29 Nonetheless, a number of international soft-law rules tend to balance the
intervening state's position with that of the SAR coordinating state or the state hosting an
international patrolling force. In this respect, in 2009, the IMO Facilitation Committee (FAL)
elaborated a set of principles on the disembarkation of people rescued at sea which should
guide member states in adopting their own internal policies on the matter.30 According to the
FAL:
... if disembarkation from the rescuing ship cannot be arranged swiftly elsewhere, the
Government responsible for the SAR area should accept the disembarkation of the persons
rescued in accordance with immigration laws and regulations of each Member state into a place
of safety under its control [. . .].31
A year later, the problems related to the disembarkation of migrants intercepted in the
framework of Frontex-coordinated missions led the EU to adopt a set of non-binding
guidelines which should inspire the operations' modus operandi.32 The guidelines state that,
in disembarking people `intercepted or rescued' at sea:
. . . priority should be given to disembarkation in the third country from where the ship carrying
the persons departed or through the territorial waters or search and rescue region of which that
ship transited and if this is not possible, priority should be given to disembarkation in the host
Member State [ie the EU Member State hosting the Frontex-coordinated mission].33
Hence, on the one hand, international maritime law has so far elaborated a number of
guidelines regulating the disembarkation of migrants rescued at sea; on the other hand,
however, these guidelines are not the sole guiding principles on the matter. Logically, since
the purpose of any rescue attempt is to save lives, following their rescue, survivors cannot be
conducted to a place where they might be subject to further risks or persecution, also not
directly related to their journey by sea. Basically then, international maritime law rules end up
26 ibid art 6.13.
27 ibid art 6.14.
28 ibid art 2.5.
29 See eg the recurring disputes between Malta and Italy on the disembarkation of migrants rescued by Italian forces
within the extended Maltese SAR Zone (Malta claims a SAR Zone of 250,000 km2, which is about 750 times its territory).
30 IMO Facilitation Committee `Principles relating to administrative procedures for disembarking persons rescued
at sea' Doc No FAL.3/Circ.194 (22 January 2009) www.imo.org/OurWork/Facilitation/docs/FAL%20related%20non
mandatory%20instruments/FAL.3-Circ 194.pdf.
31 ibid para 2.3.
32 Council decision 2010/252/EU (n 15).
33 ibid Annex Part II para 2.1.
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being coupled with the so-called `non-refoulement' principle,34 as developed by international
refugee law.35
III The SAR legal regime, the non-refoulement principle and the right to asylum
In truth, it was for the IMO �� an international maritime law body �� to establish the principle
according to which the prohibition of refoulement must be explicitly considered in deciding
the place of safety during rescue operations.36 In this regard, the 2004 binding guidelines
adopted by the IMO-Maritime Safety Committee (MSC) specify that: `[t]he need to avoid
disembarkation in territories where the lives and freedoms of those alleging a well-founded
fear of persecution would be threatened is a consideration in the case of asylum seekers and
refugees recovered at sea' (emphasis added).37 Naturally, the non-refoulement principle only
operates with respect to individuals in need of protection. So how can they be distinguished
as such among the other rescued migrants? How can it be ascertained that disembarking
people in a certain port would not expose them �� or at least some of them �� to further risks or
persecution?
In trying to answer these questions it should be noted, first, that the interception of migrants
on the high seas does not per se violate the prohibition of refoulement.38 Indeed, `the
obligation not to return a refugee to the country where he was [or will be] persecuted [does]
not imply an obligation to admit him to the country where he seeks entry'.39 The duties of not
exposing migrants to further persecution and their right to asylum are clearly distinguished in
international law.40 While the former is a non-derogable or, better, a peremptory41 rule of
international refugee law, traditionally entailing a purely negative obligation on states,42 the
latter falls within the reserved powers of nations, stemming from the principle of
sovereignty.43 This means, inter alia, that it is not for rescued people to choose their port
of destination. In addition, under international maritime law there is no positive obligation on
intervening states to inform migrants rescued in international waters of the possibility of
seeking asylum or to request them to reveal any potential cause of persecution in third
34 See E Lauterpacht and D Bethlehem `The Scope and Content of the Principle of Non-refoulement: Opinion' in
E Feller, V TuÈrk and F Nicholson (eds) Refugee Protection in International Law: UNHCR's Global Consultations on
International Protection (Cambridge University Press Cambridge 2003).
35 See United Nations Convention Relating to the Status of Refugees (adopted on 28 July 1951) 189 UNTS 150 art 33(1):
`No Contracting State shall expel or return (``refouler'') a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a
particular social group or political opinion'. The same principle is embedded in all the major human rights conventions
as derived from the articles on the prohibition of torture.
36 S Trevisanut `The Principle of Non-refoulement at Sea and the Effectiveness of Asylum Protection' (2008) 12 Max
Planck Yearbook of United Nations Law (Max Planck Institute for Comparative Public Law and International Law Vol 12
2008) 205��246 at 239.
37 MSC Guidelines (n 25) para 6.17.
38 G S Goodwin-Gill and J McAdam The Refugee in International Law (Oxford University Press New York 2007) 277.
39 UN Ad Hoc Committee on Statelessness and Related Problems `Comments of the committee on the draft
convention' art 28 UN Doc E/AC.32/L.32/Add 1 (10 February 1950) www.unhcr.org/refworld/docid/3ae68c1a14.html.
40 Goodwin-Gill and McAdam (n 38) 196. Notably, however, there are clear links between the two. For example `the
principle of non-refoulement is equally applicable to asylum-seekers who are awaiting a determination of their status'
(UN High Commissioner for Refugees `Note on International Protection (submitted by the High Commissioner)' para
23 (3 August 1987) UN Doc A/AC.96/694, www.unhcr.org/refworld/type,UNHCRNOTES,,,3ae68c0314,0.html.
41 ibid para 21. See also J Allain `The jus cogens nature of non-refoulement' (2001) 13 International Journal of Refugee
Law 4 533��58.
42 A Vibeke Eggli Mass Refugee Influx and the Limits of Public International Law (Martinus Nijhoff Publishers The
Hague 2002) 155.
43 As Nathwani argues: `[N]on-refoulement does not solve the ensuing problem of the individual being potentially left
without any country of residence. In this sense the legal recognition of non-refoulement, without the recognition of
the individual right to obtain asylum is incoherent in principle' (N Nathwani Rethinking Refugee Law (Martinus Nijhoff
Publishers The Hague 2003) 135).
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states.44 Quite the contrary; few states in the world recognise the right of migrants to ask for
asylum while on board their warships. Remarkably, Italy is apparently one of them.45 Even
choosing to apply migration law rules to SAR interventions undertaken on the high seas
(which would be inappropriate in any event), under EU law (in particular, the Procedures
Directive46) the right to legal assistance is only provided for `applicants for asylum',47 ie
migrants who have already submitted their claim or have expressed their wish to submit the
claim in question.
That being said, it is essential to find a way to offer survivors a chance to express their
concern with regard to the port of destination while they are still on board the rescuing
warship, without this being interpreted as giving rise to an obligation of legal assistance. A
reasonable solution might be the one reported in the 2010 Rules for Frontex-coordinated
missions, according to which, while on board the rescuing vessel `the persons intercepted or
rescued [must] be informed in an appropriate way so that they can express any reasons for
believing that disembarkation in the proposed place would be in breach of the principle of
non-refoulement'.48 In this way, migrants can assist state authorities to comply with the non-
refoulement rule and identify people in need of protection. This procedure, on the other
hand, does not impose upon the intervening state a real obligation of compliance with the
migrants' concerns; nor does it grant the latter any directly enforceable right to asylum.
In order to address such issues, a few months after the adoption of the Frontex Rules, the
Dutch Government declared that:
[O]n a Dutch ship there is no authority responsible for handling applications, being the
commander of the ship not entitled to receive them [. . .]. In this regard, it is the responsibility of
a Dutch ship's commanding officer that if a migrant on board expresses a wish to submit an
application, this is not left without consequences. This requires that an alien who thinks he/she
needs protection has to be returned only after his/her request has been assessed and there is
no reason to grant the protection in question. These migrants should therefore be given the
opportunity to submit an application to a competent authority. [...] This means that the
operational plan may include an explicit provision on that it is the host nation which is
responsible for handling the applications of intercepted or rescued migrants made on board
the Dutch ship. The Netherlands considers the inclusion of this provision as a condition to
participate in a Frontex operation.49
This approach is totally reasonable for states, such as The Netherlands, whose navies operate
far away from their territories. In these circumstances, the migrants' disembarkation in the
intervening state's territory would simply be unfeasible or at least not in line with the `most
44 This was also highlighted by the Italian Government in its response to a report of the Council of Europe's Committee
for the Prevention of Torture on the interceptions carried out by Italian military vessels in 2009 (see CPT Response of
the Italian Government to the report of the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) on its visit to Italy from 27��31 July 2009 Doc No CPT/Inf (2010) 15 (28 April
2010) www.cpt.coe.int/documents/ita/2010-inf-15-eng.pdf).
45 During the interception operations of 2009 the Italian authorities confirmed that any intercepted migrant willing to
apply for asylum would have been brought to Italy to submit his/her application (see eg the statements of Hon Afredo
Mantovano and Hon Nitto Francesco Palma �� both Undersecretaries of State for the Interior �� made before the Italian
Parliament on 22 September and 24 November 2009, respectively) www.interno.it/mininterno/export/sites/default/it/
assets/files/17/0895_Audizione_Mantovano_comitato_Schengen.pdf; www.camera.it/resoconti/dettaglio_resoconto.
asp?idSeduta=251&resoconto=stenografico&indice=alfabetico&tit=00070&fase=00010.
46 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for
granting and withdrawing refugee status [2005] OJ L326 13.
47 ibid art 15(1).
48 Council Decision No 2010/252/EU (n 32) Annex Part I Rule 1.2.
49 Letter from the Minister of Justice to the President of the House of Representatives Doc No 61 (3 September 2010)
www.statewatch.org/news/2010/sep/frontex-netherlands-position.pdf (unofficial translation �� original version available
at https://zoek.officielebekendmakingen.nl/kst-21501-28-61.html).
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appropriate assistance available', to which rescued people would be entitled under
international maritime law. At the same time, however, the Dutch approach looks like a
clever �� but somewhat opportunistic �� way of avoiding any further problems arising from the
transfer of migrants, putting the disembarkation burden primarily on the host state's
shoulders. The Dutch position does, however, address the difficult situation in which a
warship's commanding officer and crew may find themselves at the end of a rescue operation
on the high seas. Overloading the warship's personnel with responsibilities going beyond
providing first aid and medical assistance to survivors would seem unworkable for anyone
with even basic experience of the reality of life on board a military vessel.
In 2009, possibly as a result of these same concerns, the IMO Facilitation Committee
suggested that `any operations and procedures such as screening and status assessment of
rescued persons that go beyond rendering assistance to persons in distress are to be carried
out after disembarkation to a place of safety'.50 Notably, however, the Facilitation Committee
also recognised the right of rescued people to ask for asylum on board the rescuing vessel,
with their requests to be examined by a competent authority (but not necessarily belonging
to the rescuing vessel's flag state).51
These and other instances all point towards bridging the legal gap between, on the one hand,
states' negative obligations stemming from the non-refoulement principle, and, on the other,
their positive obligations stemming from domestic law or EU law on asylum. The latter is pro-
gressively becoming `extraterritorial', in the sense that the right to access to an effective asylum
system is gradually being granted to people even beyond the borders of states. At the same
time, however, the concept of authority responsible for securing such access to asylum proced-
ures is becoming flexible and adapting to the circumstances of the case. Apparently, the author-
ity in question may vary from time to time and even be selected on the basis of an agreement
among all the parties concerned (eg intervening states, host state, SAR coordinating state etc).
IV The `safe third country' concept in light of the most recent international
jurisprudence
Coupling the non-refoulement rule with the SAR legal regime is turning the place of safety
concept into the `safe third country' (STC) concept.52 A state may invoke the STC paradigm
when it `den[ies] an asylum-seeker admission to substantive asylum procedures [...] on the
ground that he or she already enjoyed, could request or should have requested and, if
qualified, would actually be granted, asylum and protection in another country'.53
Accordingly, migrants rescued on the high seas are denied entry into the country they
initially intended to enter and are instead disembarked in a `risk free' third country. This
practice is in principle totally lawful and in line with Article 33(1) of the 1951 Geneva
Convention Relating to the Status of Refugees.54 Nevertheless, seen under the lens of the
non-refoulement principle, the STC concept not only entails the absence of any immediate
risk upon disembarkation, but also a reasonable certainty that the individuals in question will
not be persecuted if returned to their country of origin, or to another country, as a
consequence of a decision taken by the state of disembarkation (`indirect' refoulement).55
50 IMO Doc No FAL.3/Circ.194 (n 30) para 2.2.
51 ibid paras 2.2 and 2.4.
52 See A Hurwitz The Collective Responsibility of States to Protect Refugees (Oxford University Press New York 2009)
46; S Kneebone `The Legal and Ethical Implications of Extraterritorial Processing of Asylum Seekers: The ``Safe Third
Country'' Concept' in J McAdam (ed) Forced Migration, Human Rights and Security (Hart Publishing Oxford and
Portland OR 2008) 129��54.
53 UNHCR `Note on International Protection' (submitted by the High Commissioner) para 20 (31 August 1993) A/AC.96/
815 www.unhcr.org/refworld/docid/3ae68d5d10.html.
54 Lauterpacht and Bethlehem (n 34) 87��177 at 122. The article's text is reported at note 32.
55 See inter alia K Wouters and M den Heijer `The Marine I case: a comment' (2010) 22 International Journal of Refugee
Law 1 1��19 at 7.
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Notably, however, this depends upon the functioning of the recipient state's asylum system.
So, should the decision of handing over migrants rescued on the high seas to a certain state
be based on a positive assessment of that state's asylum system? Should a `presumption of
safety' of such a system be enough to relieve the intervening state of its responsibilities
regarding the prohibition of refoulement, or should that state make a thorough assessment
on a case-by-case basis and, if so, who decides the meaning of `thorough'?
On the whole, considering the absence of specific rules of international maritime law and
ambiguous state practice, there is not yet a comprehensive answer to these questions.
Generally, it may be observed that, given the traditionally negative character of the non-
refoulement rule, any additional positive obligation deriving from it would probably find
states somewhat sceptical. Notwithstanding that, some very recent international and
domestic rulings on the transfer of asylum-seekers abroad have expanded the duties of
states in respect of the non-refoulement principle, to the point that states willing to deport or
return individuals to a third country should base their action on a careful assessment �� in
practical terms �� of the asylum system in place in that country, in order to avoid indirect
refoulement of asylum-seekers to their countries of origin or elsewhere.
In the MSS case,56 concerning the deportation of an Afghan national from Belgium to Greece
on the basis of the `Dublin II Regulation',57 the Grand Chamber (GC) of the European Court of
Human Rights (ECtHR) found Belgium to be in violation of the prohibition of refoulement (as
derived from Article 3 of the European Convention on Human Rights (ECHR))58 for having not
verified the practical application by the Greek authorities of their legislation on asylum.
According to the ECtHR (thanks, inter alia, to the UN High Commissioner for Refugees'
(UNHCR) reports and correspondence with the Belgian Government), Belgium knew or
should have known that the applicant's asylum claim would have not been seriously
examined by the Greek authorities.59 The Court also affirmed that, in order to comply with
the non-refoulement rule, it is not sufficient for the removing country to rely on diplomatic
assurances offered by the receiving country when such assurances only concern the
legislation in force and do not contain any `relevant information about the situation in
practice'60 or the concrete circumstances of the case.
The same principle was later upheld by the GC of the Court of Justice of the European Union
(CJEU) in its decision of 21 December 2011 on two joined cases.61 The first, again, concerned
the deportation of an Afghan national from the UK to Greece according to the Dublin II
Regulation. The second involved Afghan, Iranian and Algerian nationals who first crossed EU
borders in Greece, where they were arrested for illegal entry but did not apply for asylum,
and later travelled to Ireland. The latter's authorities were now seeking to return them to
Greece. According to the CJEU, the mere presumption of compliance with the non-
56 ECtHR (GC) MSS v Belgium and Greece Application No 30696/09 judgment (21 January 2011) www.echr.coe.int.
57 Council Regulation (EC) 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the
Member State responsible for examining an asylum application lodged in one of the Member States by a third-country
national [2003] OJ L50/1.
58 Article 3 ECHR does not explicitly contain the non-refoulement principle but according to the jurisprudence of the
ECtHR, this rule is embedded in the prohibition of torture as included in the above-mentioned provision (see ECtHR
Soering v United Kingdom Application No 14038/88 Judgment (7 July 1989) paras 85 and 91 www.echr.coe.int). All the
major human rights conventions, such as the International Covenant on Civil and Political Rights, the Convention
against Torture, the Convention of the Rights of the Child, the ECHR and the Inter-American Convention on Human
Rights, make the prohibition of refoulement derive from the absolute prohibition of torture/inhuman and degrading
treatments.
59 MSS v Belgium and Greece (n 56) para 358.
60 ibid para 354.
61 Case C��411/10 NS v Secretary of State for the Home Department and Case C��493/10 ME et al v Refugee Applications
Commissioner and Minister for Justice, Equality and Law Reform (judgment 21 December 2011) CJEU (GC) www.
curia.eu.int.
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refoulement rule by EU Member States, as embedded in the EU Charter of Fundamental
Rights of the European Union (CFR), did not represent a sufficient legal basis to allow the
applicants' deportation. On the contrary, the Court noted that:
Member States, including the national courts, may not transfer an asylum seeker to [. . . another
Member State] where they cannot be unaware that systemic deficiencies in the asylum
procedure and in the reception conditions of asylum seekers in that Member State amount to
substantial grounds for believing that the asylum seeker would face a real risk of being
subjected to inhuman or degrading treatment within the meaning of [Article 4 CFR �� ie the
prohibition of torture/refoulement].62
Remarkably, the CJEU also rejected the Belgian, Italian and Polish Governments' claims that
Member States lack the ability to assess in practical terms the other Member States'
compliance with fundamental rights, as well as the risks to which asylum-seekers would be
exposed if transferred to other EU countries. According to the Court, in fact, information such
as the UNHCR's reports would make this entirely possible.63
A third case �� which was decided by a domestic court, the High Court of Australia64 �� dealt
with the deportation of two Afghan asylum-seekers (one adult and one minor) from
Australia's offshore territory of Christmas Island to Malaysia, on the basis of a `refugee swap
deal' between the Australian and Malaysian Governments. Under such an agreement, the
applicants would have been given the option of lodging their asylum claims directly in
Malaysia. This procedure was not found unlawful per se by the Court. However, the latter
observed that in order to comply with the non-refoulement principle (as embedded in
Australian domestic legislation) there are at least three conditions to be met. In particular, the
receiving state must be legally bound by international law or its own domestic law to provide
asylum-seekers: (i) access to `effective procedures' for assessing their claim for protection; (ii)
protection pending determination of their refugee status; and (iii) protection in case, after the
acknowledgement of their refugee status, they decide to return to their country of origin or
resettle in another country.65 Notably, the need to assess the effectiveness of the recipient
country's asylum system is not mentioned in mandatory terms. According to the Court, the
government `may [emphasis added] scrutinise what is done in practice to ensure that the
country's laws are carried into effect and to ensure that the country can be relied upon to
recognise refugee status and provide the necessary protections'.66 If the assessment is
negative, the government `may well conclude that the necessary protections are not in fact
provided'.67 However, the government's assessment does not replace the procedure's key
legal requirement, namely that the recipient country is bound by its own domestic law to
secure asylum-seekers' protection and recognition of their status.68 Malaysia, on the contrary:
. . . first, does not recognise the status of refugee in its domestic law and does not undertake any
activities related to the reception, registration, documentation and status determination of
asylum seekers and refugees; second, is not party to the Refugees Convention or the Refugees
62 ibid para 106.
63 ibid para 91. There are indeed a good number of international and domestic judicial decisions on the legal relevance
of reports issued by governmental and non-governmental organisations on the situation in asylum-seekers' countries
of origin (countries of origin information or COI). For a comprehensive overview see G Gyulai Country Information in
Asylum Procedures �� Quality as a Legal Requirement in the EU (Hungarian Helsinki Committee Budapest, updated
version 2011) 31��38 www.iarlj.org/general/images/stories/news/COI2012/EN_COI_in_Asylum.pdf.
64 High Court of Australia Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister
for Immigration and Citizenship [2011] HCA 32 (31 August 2011) www.austlii.edu.au/au/cases/cth/HCA/2011/32.html
(Refugee Swap Deal case).
65 ibid paras 125��26 and 243.
66 ibid para 245.
67 ibid.
68 ibid.
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Protocol; and, third, has made no legally binding arrangement with Australia obliging it to
accord the protections required by those instruments [. . .].69
The fact that the UNHCR is simply permitted to carry out its own procedures for assessing the
needs for protection of persons seeking asylum is deemed not enough by the Court.70
Although all of these cases deal with refugee law issues, one could well conceive the
application of their common rationale to cases involving state obligations under the SAR legal
framework. Indeed, since the two legal regimes are to be applied simultaneously,
developments under one inevitably end up affecting the application of the other. Moreover,
although the latter case is slightly different from the first two, as it posits the responsibility
of positively assessing the functionality of the receiving state's asylum system as optional,
there might be some analogy with the transfer to Libya of migrants intercepted in the
Mediterranean Sea by the Italian authorities in 2009, also known as `push-backs'.71 In
particular, the similarity between Malaysia and Gaddafi's Libya with regard to the absence of a
functioning asylum system looks striking.
And in relation to a case arising out of the 2009 `push-backs', on 23 February 2012 the Grand
Chamber of the ECtHR delivered a historic decision concerning the (il)legality of such
practice, shedding light on a number of key legal issues.
V The Hirsi case and the `push-backs'
The Hirsi case72 dealt with the interception on the high seas and `push-back' to Tripoli of
roughly 200 individuals found on board a vessel stopped on 6 May 2009 in the Maltese SAR
Zone, 35 nautical miles south of the island of Lampedusa, by three military ships belonging to
the Guardia di Finanza and the Coastguard. Twenty-four migrants (11 Somalis and 13 Eritreans)
were later contacted in Libya by a group of human rights lawyers, who managed to get them
to sign the required powers of attorney through the humanitarian organisations operating in
the various detention centres in which they had been held following their arrival. The fate of
most of the applicants is currently unknown,73 following the period of social unrest in Libya
which started in February 2011 and forced a large number of people (especially irregular
migrants) to flee the country by whatever means of transport. Some of the claimants
succeeded in reaching Europe anyway and eventually saw their refugee status recognised, as
happened to an Eritrean individual who paradoxically had his asylum request accepted in
Italy. The main issues considered by the Court in the Hirsi case concerned: 1) the alleged
violation of the non-refoulement principle; and 2) the analogy between `push-backs' and
collective expulsions of aliens, also prohibited under the ECHR and in general under
international human rights law.
69 ibid para 135.
70 ibid para 125.
71 See M Tondini `Fishers of men? The interception of migrants in the Mediterranean Sea and their forced return to
Libya' (INEX paper Amsterdam and Oslo October 2010) www.inexproject.eu/index.php?option=com_docman&task=
doc_download&gid=51&&Itemid=72. To the author's knowledge, the term `push-backs' first appeared in a report
published by the international NGO Human Rights Watch in September 2009 (Human Rights Watch `Pushed back,
pushed around: Italy's forced return of boat migrants and asylum seekers' (New York 21 September 2009 www.hrw.org/
en/reports/2009/09/21/pushed-back-pushed-around-0).
72 Hirsi (n 3). Apart from the two parties to the dispute (ie the applicants and the Government of Italy), other subjects
played an active role in the proceedings. The UNHCR was allowed to intervene as a third party in support of the
applicants and participate in the oral proceedings. Other support for the migrants came from a number of human
rights organisations (Human Rights Watch, the Columbia Law School Human Rights Clinic, the Centre for Advice on
Individual Rights in Europe, Amnesty International and the International Federation for Human Rights), which
submitted written observations to the Court.
73 At the time of the ruling (February 2012), the counsels still had contacts with six applicants. Two applicants were
declared deceased and their applications were thus struck off the list by the Court.
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As a preliminary question, however, the Grand Chamber had to pronounce on its jurisdiction
over the case. The Court's jurisdiction was easily determined on the basis of the ECtHR case
law involving people detained in prisons run abroad by an ECHR Member State or on board a
warship flying its flag on the high seas.74 According to the Court, being on board military
vessels, no matter what the `nature and purpose of the intervention', `the applicants were
under the continuous and exclusive de jure and de facto control of the Italian authorities',75
and thus under the Italian and the Court's jurisdiction. In the ECtHR's opinion, this stems
from the `relevant provisions of the law of the sea', according to which `a vessel sailing on the
high seas is subject to the exclusive jurisdiction of the [flag] State'.76
V.1 Violation of the non-refoulement principle
With regard to the alleged violation of the non-refoulement principle, as embedded in Article
3 ECHR, the Italian Government immediately contended that the interception under
consideration `had been conducted in the context of a rescue operation on the high seas
in accordance with international law'77 (meaning UNCLOS and the SAR Convention).
Furthermore, according to the responding party, the migrants had not requested asylum on
board the Italian vessels (in which case they would have been taken ashore in Italy) and their
request not to be disembarked to Tripoli could not be interpreted as an asylum request.78
Libya had in turn to be considered a `safe host country' (ie basically a `place of safety'), as
Gaddafi's regime had ratified a number of human rights conventions containing the non-
refoulement rule, although not the 1951 Geneva Convention.79 Therefore, at the time of the
interception in question, `Italy had had no reason to believe that Libya would evade its
commitments' in the field of human rights.80 Notably, as a proof of Libyan loyalty to its
international human rights obligations, the Italian Government �� just like the Australian one
in the Refugee Swap Deal case �� mentioned the presence of UNHCR and IOM (International
Organization for Migration) offices in Tripoli,81 irrespective of the fact that Libya lacked (and
still lacks) a formal asylum system.
In response to these arguments, the Grand Chamber, mirroring the High Court of Australia,
observed that, in the absence of formal recognition by the host state of the UNHCR's role in
guaranteeing the protection of asylum seekers, the mere presence of an office of the High
Commissioner, without any effective power established by law, is not sufficient to affirm that
an asylum system is truly in place in the country.82 On the other hand, contrary to what the
High Court of Australia did with regard to the Malaysian legal system, the ECtHR did not pay
so much attention to the absence in Libya of a domestic law on the recognition of the refugee
status, but rebutted Libya's `presumption of compliance' with its human rights obligations by
restating and even expanding the MSS dictum on the need to consider the practical situation
on the ground and not the formal legislation in force.83 Indeed, the Court went so far as to
argue that `it was for the national authorities, faced with a situation in which human rights
74 ECtHR (GC) Al-Skeini and Others v the United Kingdom Application No 55721/07, Judgment of 7 July 2011, paras
132 and 136, www.echr.coe.int; ECtHR (GC) Medvedyev and Others v France Application No 3394/03, judgment of
29 March 2010, para 67, www.echr.coe.int.
75 Hirsi (n 3) para 81.
76 ibid para 77. See also UNCLOS arts 92, 95��96.
77 ibid para 95.
78 ibid para 96.
79 ibid para 97.
80 ibid para 98.
81 ibid paras 97��98.
82 ibid paras 130 and 153.
83 ibid para 128: `[T]he Court is bound to observe that the existence of domestic laws and the ratification of
international treaties guaranteeing respect for fundamental rights are not in themselves sufficient to ensure adequate
protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices
resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention'.
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were being systematically violated [...] to find out about the treatment to which the
applicants would be exposed after their return'.84 It was therefore Italy's responsibility to
assess positively the hypothetical situation faced by migrants upon their disembarkation to
Tripoli, regardless of any asylum request (submitted or not, accepted or not) or plea by the
migrants themselves while on board the Coastguard's or the Guardia di Finanza's vessels. Yet
the situation in Tripoli, according to the Court, was pretty clear, thanks to the amount of
reliable and publicly-available news on the status of migrants in Libyan detention centres.
Therefore, the Italian authorities `knew or should have known'85 about the situation and
should have acted accordingly. Indeed, similarly to the CJEU in its December 2011 decision
cited above, in Hirsi the Strasbourg Court reiterated the importance of reliable and
independent information contained in the reports of human rights watchdogs and
organisations, arguing that, in the case concerned, `numerous reports by international
bodies and non-governmental organisations paint[ed] a disturbing picture of the treatment
meted out to clandestine immigrants in Libya at the material time'.86 Such treatment, based on
those reports (which were found reliable by the Court), included detention in inhumane
conditions and real risk of `indirect' refoulement.87
More importantly, the Grand Chamber affirmed that even considering the interception and
`push-back' of migrants on the high seas as SAR interventions, as the Italian Government itself
argued at the beginning of the proceedings, such operations could not be legally justified,
since `the rules for the rescue of persons at sea and those governing the fight against people
trafficking impose on states the obligation to fulfil the obligations arising out of international
refugee law, including the ``non-refoulement'' principle'.88 The parallel application of the two
bodies of law, ie maritime and refugee law, makes any further evaluation of the legal nature of
`push-backs' within the existing categories of law useless �� no matter if the `push-back' was
carried out in the course of a salvage or border control operation, as long as the prohibition
of refoulement has been breached.
V.2 `Push-backs' as collective expulsions and the nature of border control operations
The distinction between the concepts of SAR and border control instead arises in assessing
the similarity of the practice in question with a collective expulsion of aliens, prohibited
under Article 4 of Protocol No 4 to the ECHR (Article 4). Here, in order to draw a parallel
between the `push-backs' taking place in international waters and the collective deportations
of irregular migrants from the territory of Member States, it becomes fundamental to
ascertain the real purpose of the action. Is it directed, only or at least principally, at saving
lives or rather at preventing people from crossing state maritime borders? In addition, is the
ECHR norm on the prohibition of collective expulsions applicable extraterritorially?
The second question was easily addressed by the Court, although it was the first time the
ECtHR had pronounced on the extraterritorial application of this rule. The Grand Chamber
found that neither the text of Article 4, nor the travaux pre paratoires which led to its adoption,
mentioned the territorial nexus in collective expulsion cases.89 The rule in question is thus
potentially applicable outside the ECHR Member States' territory. That said, since Italy in
carrying out the `push-backs' was exercising its jurisdiction extraterritorially,90 Article 4 was
84 ibid paras 133 and 157.
85 ibid paras 131 and 156.
86 ibid paras 118 and 123.
87 ibid para 125.
88 ibid para 134.
89 ibid paras 173��174.
90 ibid para 180: `[T]he Court considers that the removal of aliens carried out in the context of interceptions on the high
seas by the authorities of a State in the exercise of their sovereign authority, the effect of which is to prevent migrants from
reaching the borders of the State or even to push them back to another State, constitutes an exercise of jurisdiction'.
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thus hypothetically applicable to the conduct of Italian state officers on the high seas.91
Nonetheless, in order to determine if that norm could really apply to the case at hand, it was
necessary for the Court to tackle the first question, ie on the purpose of the action. On this
point, the Grand Chamber observed that:
the operation resulting in the transfer of the applicants to Libya was carried out by the Italian
authorities with the intention of preventing the irregular migrants disembarking on Italian soil.
In that connection, [the Court] attache[d] particular weight to the statements given after the
events to the Italian press and the State Senate by the Minister of the Interior, in which he
explained the importance of the `push-back' operations on the high seas in combating
clandestine immigration and stressed the significant decrease in disembarkations as a result of
the operations carried out in May 2009.92
If the respondent state, through its top-level political leadership, publicly declares that the
interception of boat people on the high seas is first and foremost aimed at tackling irregular
migration, rather than saving the lives of migrants, it becomes arduous to justify the non-
application to the operations concerned of the entire body of migration law norms
(international, European and domestic) which would have applied if migrants had been
removed from Italian soil. The discrepancy between the government's public statements (on
the nature of `push-backs' as border control operations) and its agents' submissions before
the Court (claiming that the `push-backs' were indeed SAR interventions), eventually led the
Court to rely on the former.93
When a state basically anticipates its border controls on the high seas (also called `extra-
territorial border control'),94 Article 4 inevitably applies to such operations, otherwise `migrants
having taken to the sea, often risking their lives, and not having managed to reach the borders
of a state, would not be entitled to an examination of their personal circumstances before
being expelled, unlike those travelling by land'.95 Yet the application of Article 4 implies the
screening of each migrant's individual situation, which in turn entails their identification with
the assistance of an interpreter and a legal adviser �� all activities which can be performed only
ashore, possibly in a migration centre. None of these activities was in fact carried out on
board the Italian vessels during the journey to Tripoli.96 More importantly, according to the
Court, the intercepted migrants should have been given `sufficient information to enable
them to gain effective access to the relevant procedures and to substantiate their
complaints'.97 Since this did not happen, the applicants' right to asylum was actually barred.98
91 ibid para 178: `Where, however, as in the instant case, the Court has found that a Contracting State has, exceptionally,
exercised its jurisdiction outside its national territory, it does not see any obstacle to accepting that the exercise of
extraterritorial jurisdiction by that State took the form of collective expulsion. [. . .] Furthermore, as regards the exercise
by a State of its jurisdiction on the high seas, the Court has already stated that the special nature of the maritime
environment cannot justify an area outside the law where individuals are covered by no legal system capable of
affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken
to secure to everyone within their jurisdiction'.
92 ibid para 181.
93 See also the concurring opinion of Judge Pinto de Albuquerque, who explicitly labelled the `push-backs' as border
control operations (ibid pp 80��81).
94 See eg M den Heijer, `Europe beyond its Borders: Refugee and Human Rights Protection in Extraterritorial
Immigration Control', in B Ryan and V Mitsilegas (eds) Extraterritorial Immigration Control: Legal Challenges (Martinus
Nijhoff Leiden and Boston 2010) 169��98 at 173.
95 Hirsi (n 3) para 177.
96 ibid para 185: `In the instant case, the Court can only find that the transfer of the applicants to Libya was carried out
without any form of examination of each applicant's individual situation. It has not been disputed that the applicants
were not subjected to any identification procedure by the Italian authorities, which restricted themselves to
embarking all the intercepted migrants onto military ships and disembarking them on Libyan soil. Moreover, the Court
notes that the personnel aboard the military ships were not trained to conduct individual interviews and were not
assisted by interpreters or legal advisers'.
97 ibid para 204.
98 ibid para 205.
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In this way, the Court's judgment ends up quashing the practice of `push-backs' in its entirety.
Again, the reason at the basis of the Court's criticism is to be found in the nature of the border
control measures of such operations.
V.3 What the Court does not say: the need to distinguish between SAR and border control
What the Court does not consider, however, is that the interception of boat people on the
high seas and their disembarkation to a port located in a third state, also when contrary to the
migrants' will, is often justified by different instances, among which the prevention of their
arrival on the intercepting state's territory may play some role, even if the latter is not the
leitmotif of the intervention. A warship encountering on the high seas a boat `stuffed' with
irregular migrants in precarious safety conditions is duty-bound to intervene and welcome
them on board. Even if the operation begins as a pure SAR intervention, once the life of the
rescued people is no longer at risk and their basic needs have been met, the choice of port of
disembarkation can be based on both the `place of safety' concept (as interpreted in light of
refugee law) and other considerations, including the concern of preventing further
departures, thus trying to tackle irregular migration. Should this scenario be assimilated to
a full migration control operation?
Imagine the case of an Italian military vessel tasked with the surveillance of the sea lines of
communication, rescuing a group of boat people in the middle of the Mediterranean Sea and
taking them back to a safe port in Tunisia or Egypt, in which their protection rights can be met.
Should that vessel be equated to an Italian frontier post? In our opinion the answer is clearly
in the negative, as the application of the relevant bodies of law (ie maritime or migration law)
cannot be other than functional and conceived in view of the operation's true nature. Human
rights provisions such as the prohibition of collective deportation cannot be applied to a
genuine SAR intervention, otherwise any rescue of people in distress at sea, even when not
migrants, would turn into a possibly involuntary and virtual access of such people to the flag
state's territory, with all the consequences of the case, including the necessity to take them
back inland for identification, possibly to a national port located thousands of miles away and
irrespective of the survivors' will to be disembarked to the closest `safe third country'. In
order to assess the true nature of operations, it is thus necessary to apply a prevalence
criterion, according to which if the SAR character prevails over the objective of preventing
irregular migration, the intervention in question should be considered as an authentic
salvage operation. On the other hand, as in the case of the summer 2009 `push-backs', when
operations were predominantly aimed at tackling illegal migration, the analogy between
warships and frontier posts is inevitable.
VI Conclusion: the way ahead
Based on the analysis reported above, we may conclude that the interception and rescue of
migrants on the high seas may be deemed lawful if implemented under the SAR legal regime,
as provided by international maritime law. In parallel, any intervention must also comply with
the prohibition of refoulement. This means that the disembarkation of migrants must be
carried out to a `safe third country', namely a country in which they would not be persecuted
or returned to other countries in which they could run a `real risk' of being persecuted,
including their countries of origin. This in turn entails a positive assessment by the states
involved in the interception (ie the rescuing vessel's flag state, the SAR coordinating state, the
mission's host state, if any, etc) over the functionality of the country of disembarkation's
asylum system and the migrants' reception conditions. The assessment should principally
concern the receiving country's ratification of international refugee law instruments and the
formal adoption of domestic legislation on asylum, including assistance to migrants upon
their arrival. According to some very recent international jurisprudence, however, such an
assessment should also include a careful evaluation of the functionality of the asylum system
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in practical terms, so that it might be concluded that potential asylum claims would be
seriously examined by the local authorities. The assessment could be also based on
information and reports issued by international specialised agencies such as the UNHCR.
The ECtHR decision in the Hirsi case has confirmed this scenario and drawn the attention of
both scholars and practitioners to the impossibility for states to anticipate border control on
the high seas without applying all the relevant human rights, refugee and migration law
norms. The 2009 `push-back' operations in the Mediterranean Sea, which were conducted in
the absence of any individual screening of intercepted migrants and in violation of the non-
refoulement principle, were thus deemed illegal per se by the Court. While the SAR or border
control character of operations is irrelevant in assessing possible breaches of the non-
refoulement rule, the distinction becomes fundamental as far as the analogy between `push-
backs' and collective expulsions is concerned. In our opinion, in order to assess the legality of
operations it seems essential to apply a prevalence criterion, which basically consists of
striking a balance between the SAR and the anti-irregular migration goals.
In more general terms, one should also observe that the interception of migrants on the high
seas can be only considered a short-term measure, unfit to control large migration flows.
Addressing the roots of migration in the countries of origin and departure appears to be the
only feasible solution in this respect. This entails exploring ways to secure the full
cooperation of the countries concerned, as well as the assistance of all relevant actors in
the field, including international governmental and non-governmental organisations. In this
context, the development of self-sustainable and long-term capacity building programmes in
the countries of departure may certainly be of help.
Defence forces may also play a key role in this process, especially through cooperation with
the countries of disembarkation's armed forces. A good example is the cooperation
established between the Italian and Tunisian Navies following the April 2011 agreement
between the two countries' governments.99 This agreement facilitates the deployment of
Italian (the migrants' most likely country of destination) naval assets close to the coasts of
departure (although in international waters) for surveillance and detection purposes. This
direct cooperation with the Tunisian Navy should in theory enhance its capacity for
surveillance and detection, and therefore help to prevent the uncontrolled exodus of
Tunisian citizens when vessels have not yet left Tunisian territorial waters. However, in order
to comply with the obligations mentioned above, the establishment of any kind of military
cooperation should in principle follow a careful evaluation of the conditions returned people
are subject to in the partner country, including the treatment of non-nationals.
99 MoI Immigrazione, Siglato l'Accordo tra Italia e Tunisia press release (6 April 2011) www.interno.it/mininterno/
export/sites/default/it/sezioni/sala_stampa/notizie/immigrazione/000073_2011_04_06_accordo_Italia-Tunisia.html. The
same solution, although within a broader international legal framework, was adopted by the Italian Government in
respect of the Albanian crisis of 1997 (see F Caffio `Immigrazione clandestina via mare: l'esperienza Italiana nella
vigilanza, prevenzione e contrasto' (2003) 8 Rivista Marittima (Supplement).
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