Last month, the United Nations High Commissioner for Refugees submitted a third-party written intervention to the European Court of Human Rights in the case of Hirsi and Others v. Italy. The case was filed last May by a group of Eritrean and Somali asylum seekers, including children and pregnant women. who attempted to reach Italy by boat from Libya. When they were thirty-five miles south of Lampedusa (pictured below left), the Italian Coast Guard and Navy interdicted these vessels and returned their passengers to the Libyan authorities in Tripoli. Italian officials made no attempt to identify, let alone interview these asylum seekers. Most remain in temporary detention centers while some are in Libyan prisons. The Italian Interior Minister confirmed that this interdiction and return was conducted pursuant to a bilateral treaty concluded with Libya aimed at reducing irregular migration.
The case raises several important legal issues to which the UNHCR brief responds, namely the practice of interdiction or "push-back" on the high seas, the reception conditions and asylum process in Libya, and the scope of the principle of non-refoulement on the high seas. On the first point, to justify its interdiction practices, it was interesting to see that rather than citing sovereignty concerns, the Italian government cited international law, namely its treaty with Libya and the Protocol Against the Smuggling of Migrants by Land, Sea, and Air (supplementing the United Nations Convention against Transnational Organized Crime). The UNHCR contends that neither of these treaties overrides the Italian government's duty of non-refoulement. To highlight the importance of applying this principle in the case of interdiction near Lampedusa, UNHCR noted that in 2008, 75% of sea arrivals applied for asylum and 50% of those received protection.
The return to Libya is also seriously problematic under international law. Libya has not joined either the UN Refugee Convention or its Protocol, and it has no domestic asylum legislation or processes. As a result, asylum seekers who are caught in "push-back" operations are considered illegal migrants and subject to detention. The poor conditions in Libyan detention centers range from sanitation problems to sexual assault. Even worse, the Libyan government has reportedly concluded an agreement with the Eritrean government for the return of Eritrean nationals -- a guarantee of non-refoulement violations.
All this of course raises the much larger question of the applicability of the non-refoulement principle on the high seas. While there is no right to asylum under international law, UNHCR notes that non-refoulement applies in any territory under a the jurisdiction of a State Party to the ICCPR and to any person within the actual control of a State Party to the ICCPR or UNCAT, irrespective of her physical location. As a result, de jure and de facto jurisdiction exist on board a boat of an intercepting state, requiring that the principle of non-refoulement be respected on such a vessel.
The Hirsi case raises enormously important questions that need thoughtful and creative solutions. Italy appears to be trying to create a legal black hole, an arena in which legal constraints can be ignored; the dangers of such an approach have been amply demonstrated in recent years. Yet the difficulties of addressing mass influxes of undocumented migrants are serious, and include not only severe administrative burdens and costs but potential risks to national security -- not to mention the risks to the migrants of attempting such journeys in less-than-seaworthy vessels. Though the "Fortress Europe" approach of building higher fences has created significant problems, the ECtHR may struggle to dismantle these policies effectively. The case poses a serious challenge to the court's ability to protect human rights while ensuring that its decision is respected and enforced by member states.