The Law of the Sea and Human Rights in the Hirsi Jamaa and Others v. Italy Judgment of the European Court of Human Right
The question of extraterritorial applicability of the principle of non-refoulement – as implicitly present in Article 3 ECHR – on the high seas was decided by the European Court of Human Rights (ECtHR) on 23 February 2012 in Hirsi Jamaa and Others v. Ital
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The Law of the Sea and Human Rights in the Hirsi Jamaa and Others v. Italy Judgment of the European Court of Human Rights Jasmine Coppens
Abstract The question of extraterritorial applicability of the principle of nonrefoulement – as implicitly present in Article 3 ECHR – on the high seas was decided by the European Court of Human Rights (ECtHR) on 23 February 2012 in Hirsi Jamaa and Others v. Italy. The ECtHR found that the applicants had fallen within the jurisdiction of Italy as in the period between boarding onto the Italian ships on the high seas and being handed over to the Libyan authorities, the applicants had been under the continuous and exclusive de jure and de facto control of the Italian authorities. This chapter will deal with the impact of this judgment on the law of the sea rules concerning search and rescue at sea.
7.1
Introduction
Nowadays, it seems that the age of the generalist is passing in international law. The teaching as well as the practice of international law is often broken down into specialist sub-fields such as the law of the sea and international human rights law. The fact that they have their own sources, their own mechanisms to apply in cases of non-compliance and their own courts and tribunals, creates the idea that these ‘selfcontained’ regimes are separate from general international law.1 As indicated by a study of the International Law Commission (ILC), this ‘fragmentation’ of international law generates the possibility of conflicting norms and regimes.2 For 1
M. Koskenniemi and P. Leino, “Fragmentation of International Law: Postmodern Anxieties?”, 15 Leiden Journal of International Law (2002), 553-579; T. Treves, “Fragmentation of International Law: the Judicial Perspective”, 23 Comunicazione e Studi (2007) 821-875. 2 ILC (2006), “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. Report of the Study Group of the International Law J. Coppens (*) Department of Public International Law, Ghent University, Ghent, Belgium e-mail: [email protected] Y. Haeck and E. Brems (eds.), Human Rights and Civil Liberties in the 21st Century, Ius Gentium: Comparative Perspectives on Law and Justice 30, DOI 10.1007/978-94-007-7599-2_7, © Springer Science+Business Media Dordrecht 2014
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example, it is sometimes suggested that the issue of how best to regulate migration by sea bears scars of a fragmentary approach to law-making. It has been submitted that the substantive content of the law of the sea has been isolated from potentially important humanitarian considerations. The law of the sea would therefore not be very susceptible to developments in international human rights.3 It is true that the law of the sea encounters many of the problems that arise when specialized sets of rules overlap, especially within the framework of the 1982 Law of the Sea Convention (LOSC). However, although it is unlikely that the LOSC – or the law of the sea more generally – will be accorded a central role in the his
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