A Sound Legal Argument, but the Wrong Medium? Reflections on S.S. and Others v. Italy and the Limits of Strategic Litigation

 

Paolo Biondi

Photo credit: Gzen92, via Wikimedia Commons

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Abstract

The June 2025 S.S. and Others v. Italy judgment marked a missed opportunity—and a cautionary tale. Although the applicants advanced a legally coherent theory grounded in SAR, SOLAS, UNCLOS, and Strasbourg precedent, their case depended on a weak factual matrix. As a result, the ECtHR declined jurisdiction. However, shortly before, an analogous incident occurred where Rome MRCC expressly instructed Libya to intercept—while sidelining Sea‑Watch. This scenario presented stronger grounds for Strasbourg jurisdiction as Rome’s decision directly determined which vessel rescued (or rejected) migrants, causing their return. Such instructions, with knowledge of their likely outcome, implicate in a more clear-cut case Italy in Libya-run refoulement. Strategically, the lesson is clear, doctrine requires vehicles. The wrong case risks irrelevance. In border externalisation litigation, doctrinal ambition must be rooted in unambiguous control and causation.

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I am grateful to Prof. Steve Peers, Royal Holloway, University of London and Dr. Miles Jackson, University of Oxford for their insightful comments on an earlier draft of this blog post.

 

On 12 June 2025, the European Court of Human Rights (ECtHR) delivered its much-anticipated decision in S.S. and Others v. Italy (henceforth S.S.), declaring the application inadmissible. The case had raised fundamental questions about the responsibility of European States in orchestrating or outsourcing maritime interceptions to third countries. More broadly, it tested the outer limits of extraterritorial jurisdiction under Article 1 of the European Convention on Human Rights (ECHR) in the context of so-called “pullback” operations to Libya.

Much of the academic (here and here) and advocacy community has responded with disappointment. Yet, I believe this case offers a unique opportunity for reflection on whether this particular case was fit for purpose. That is, whether the litigation strategy—however sophisticated doctrinally—aligned with the Court’s existing standards and practices for establishing jurisdiction.

In this piece, I argue that S.S. may have had sound legal arguments but the wrong case. The judgment reflects, at least in part, a mismatch between an ambitious theory of control and a fact pattern too attenuated to support the weight placed on it. This matters not only for assessing S.S., but also for the design of future cases seeking to challenge externalised border controls.

 

The Legal Frame: Jurisdiction under Article 1 ECHR

The applicants in S.S. were twelve survivors of a fatal 2017 maritime incident involving a migrant boat in distress off the Libyan coast. On 6 November 2017, the Rome Maritime Rescue Coordination Centre (MRCC) received a distress call from the vessel. It subsequently shared the coordinates with vessels in the area, including the Libyan Coastguard vessel Ras Jadir, which assumed command of the operation. While the NGO Sea-Watch 3 ultimately rescued 59 persons and brought them to Italy, 47 others were intercepted and returned to Libya. At least 20 people died. The applicants included ten survivors who were brought to Italy and two who were forcibly returned to Libya, where they allegedly suffered ill-treatment in detention (See events reconstruction by Forensic Architecture).

The core question before the Court was whether Italy’s involvement in the rescue coordination—particularly its initial coordination of the Search and Rescue (SAR) case—was sufficient to establish jurisdiction ratione personae under Article 1 ECHR. The Court held that it was not.

Recalling its well-established position that the Convention applies primarily within the territory of the Contracting States, the Court reiterated the exceptional nature of extraterritorial jurisdiction (Banković and Others v. Belgium, § 61; Al-Skeini and Others v. the United Kingdom, § 132). The two main bases recognised in the case law remain: (1) effective control over territory and (2) authority and control over individuals (Medvedyev and Others v. France, § 67; Hirsi Jamaa and Others v. Italy, § 74). The Court explicitly declined to rely on the two additional grounds acknowledged in M.N. and Others v. Belgium—namely, the exercise of public powers abroad and the establishment of procedural jurisdiction through investigative or operational obligations (see S.S., § 80, departing from M.N., §§ 104–107). It also implicitly reaffirmed M.N.’s rejection of a broader “cause-and-effect” theory of jurisdiction, according to which a State’s decisions with extraterritorial consequences might suffice to trigger Article 1 jurisdiction (see M.N., §§ 113–124).

In S.S., the Court found that Italy neither exercised territorial control in Libya nor personal control over the applicants. It focused in particular on the autonomy of the Libyan Coastguard: the Ras Jadir acted independently and did not respond to requests from other vessels or from an Italian navy helicopter to coordinate rescue efforts (§§ 100–102). The applicants’ contention that Italy’s initiation of SAR procedures and instruction to Libya amounted to a form of control was dismissed as unsupported by the Court’s case law (§ 104).

 

The Core Problem: A Weak Factual Matrix

The legal theory advanced by the applicants was not implausible. Drawing on Hirsi Jamaa, Al-Skeini, and Güzelyurtlu and Others v. Cyprus and Turkey, the case sought to extend jurisdiction to what might be termed “functional control”—a form of indirect authority exercised through coordination, operational influence, and outsourcing. It invited the Court to engage with the reality of modern border governance, one where responsibility is fragmented and delegated, yet consequences remain deadly.

However, the factual platform on which this theory rested was thin. Most of the applicants were rescued by Sea-Watch and disembarked in Italy. Only two were subjected to return to Libya. Even for these individuals, the direct link between Italian conduct and the harm suffered was difficult to trace. There was no physical custody, no boarding of an Italian vessel, and no clear-cut operational command over the rescuing actors.

Moreover, the Court's decision-making reflects a deep concern for preserving its doctrinal boundary lines. By declining to accept SAR coordination as a basis for jurisdiction, the Court implicitly reaffirmed a preference for factual control over persons, not merely over procedures or outcomes. As it stated, “the mere fact that the search and rescue procedure was initiated by the Rome MRCC cannot have resulted in bringing the applicants under the jurisdiction of the Italian State” (S.S., § 106). This formalism was foreseeable, given that an alternative outcome could result even in more reticence to coordinate SAR operations in the Mediterranean Sea.

 

A Stronger Case Was Possible

A more promising case took place months before, again involving Sea-Watch. In that later incident, the Sea-Watch 3 vessel on 10 May 2017 was first to arrive at the distress scene and was better equipped to carry out the rescue and to be the on-site coordinator. However, the Rome MRCC allegedly instructed the Libyan Coastguard to assume “on-scene command” while instructing the NGO to remain on stand-by. Following this, the Ras Jadir carried out the interception and returned the individuals to Libya.

From a jurisdictional perspective, this scenario could be significantly stronger. First, there is clear operational decision-making by Italian authorities that directly determined the outcome. Unlike S.S., where Italy informed all vessels and watched the case unfold while leaving it open to who would intervene not managing to keep under control the Libyan vessels involved, here Italy made the intentional and decisive choice of who would perform the rescue and who would not.

Second, there was a safer alternative actively excluded: Sea-Watch was on site and willing to perform the rescue and disembarkation in a place of safety. The Italian instruction, allegedly, effectively foreclosed a lawful and rights-respecting option, leading to a foreseeable violation of Article 3 ECHR.

Third, the concept of jurisdiction over persons can be more easily satisfied here. As in Hirsi Jamaa, where control over persons was exercised on the high seas by physically transferring migrants to Libyan authorities, this later case involved a chain of operational command (transfer of competence) that links Italy’s decision to the individuals’ fate. I have already argued at that time that this form of indirect operational control—particularly when paired with Italy's logistical and technical support to the Libyan Coastguard (which is much less relevant)—supports a finding of jurisdiction and even complicity under international law. Gauci, in a similar vein, has underlined that when a State issues instructions to third-country agents with full knowledge of foreseeable consequences, a jurisdictional link should be inferred, if not presumed.

If events were confirmed, this incident did differ materially from S.S. in one key respect, the degree of control exercised by Italian authorities. The Rome MRCC gave binding (not mere initial coordination) orders and handed over the case and people to the Libyans. At the same time, the MRCC had a better option (Sea-Watch) and the latter was more in line with standard SAR rules as Sea-Watch arrived first and was better equipped. The Libyan crew acted on these orders, and the outcome (return to Libya) was the direct result of decisions taken by Italian authorities. Sea-Watch this time was not left to decide whether to act or not but instead put on stand-by. Thus, a jurisdictional link ratione personae could arguably be established under Article 1 ECHR, following the reasoning of Hirsi Jamaa (exercised continuous and exclusive functional control) and even Güzelyurtlu on extraterritorial procedural obligations (the failure to act appropriately in the presence of options that prevents the realisation of Convention rights).

While S.S. invited the Court to make a doctrinal giant leap, this other case would have allowed it to apply existing doctrine to a novel but concrete scenario without the need even of using the complex legal arguments related to Italy’s material assistance and cooperation with Libya that distracted the Court from the core facts of the case.

 

 

Strategic Litigation and the Importance of the Right Vehicle

Strategic litigation often seeks to provoke legal development by advancing compelling cases that expose systemic injustices. But as the ECtHR’s decision in S.S. shows, doctrinal innovation is unlikely to occur unless supported by a compelling and carefully selected case. This raises important ethical considerations: while cause lawyers and civil society organisations may be driven by broader goals of legal change, they must ensure that the individual applicants are not treated merely as vehicles for test cases—particularly where the factual matrix is weak, the personal costs are high, and a negative ruling may entrench restrictive doctrines. In some situations, it may be ethically preferable not to bring a claim with limited chances of success, even if it aligns with a broader strategy, out of respect for the claimants’ rights, expectations, and wellbeing.

Besides the choice of case, the S.S. arguments appears to have overfocused on abstract structural control (Italy’s coordination role, SAR authority, NAURAS), rather than clear factual chains of causation that could demonstrate how Italy’s decisions determined the applicants’ fate. The strategy leaned heavily on the “public powers” doctrine and the notion of procedural jurisdiction (from M.N.), which had never been firmly accepted in Strasbourg jurisprudence. In doing so, it may have underplayed the more pragmatic narrative: that Italy chose to allow Libya to act in its stead in that specific moment, despite having a safer alternative (Sea-Watch). In hindsight, the case in S.S. also suffered from overreliance on structural arguments (e.g. Italy’s funding, training, and equipping of Libya’s Coastguard) while under developing more important individualised factual narratives demonstrating Italy’s control over the applicants, and an ambitious framing that leaned heavily on underdeveloped doctrines like procedural jurisdiction, which the Court has historically been reluctant to accept outside of investigative contexts (H.F. and Others v. France, § 195).

The inclusion of copious material from UN agencies, International Maritime Organisation (IMO), Medicines Sans Frontiers (MSF), and Forensic Oceanography was impressive in breadth, but possibly overwhelmed the Court without connecting every piece back to personal jurisdiction over the applicants. The applicants’ case risked being “over-lawyered”—strong on structural critique, but weaker on the concrete “why this engages jurisdiction here and now”.

This does not diminish the value of the case as advocacy. But for Strasbourg litigation—particularly in the sensitive domain of migration control—the Court has shown itself to be doctrinally cautious and highly fact-dependent. To trigger jurisdiction under Article 1, applicants must be able to show that the respondent State exercised direct, operational control over them in a way that materially affected their rights.

 

Beyond Strasbourg: Other Legal Avenues

The Court in S.S. briefly acknowledged that other international legal frameworks may govern rescue coordination and refoulement at sea (S.S., § 87). These include obligations under the International Convention for the Safety of Life at Sea (SOLAS) and the United Nations Convention on the Law of the Sea (UNCLOS), and customary international law. The limitations of Article 1 ECHR jurisdiction in this context may signal the need to litigate such “outsourced” responsibility in other fora. One pending example is Case T-136/23 – Sea-Watch v Frontex before the Court of Justice of the European Union (CJEU), which challenges the EU agency’s alleged role in facilitating interceptions by the Libyan Coastguard. There, unlike S.S., applicants invoke direct documentary evidence of Frontex’s aerial surveillance data being used to support pullbacks in a systematic way. While the facts of the case are not publicly disclosed yet, it most likely concerns the case of 30 July 2021 incident, in which a migrant boat was intercepted and returned to Libya after being detected by a Frontex surveillance drone operating within the Maltese SAR zone. This alternative litigation strategy—using a different legal regime and possibly a stronger evidentiary trail—may prove more effective in establishing responsibility and ensuring accountability. It reinforces the central theme of this piece: that strategic litigation must align legal argument, jurisdictional doctrine, and a compelling factual substrate.

 

Another alternative forum for litigation is the UN Human Rights Committee (HRC). In fact, through its decision in A.S. and Others v. Italy (Communication No. 3042/2017), the Committee already accepted once a functional understanding of jurisdiction in a strikingly similar context. The HRC reasoned that Italy had established jurisdiction when its MRCC received a distress call and continued operational involvement, had a naval asset in close proximity and had legal obligations under maritime law and consequently created a “special relationship of dependency” between the individuals on board and Italian authorities (see A.S. and Others, paras 7.5–7.8, citing HRC Gen. Comm. 36). They held that this dependency, coupled with Italy’s operational decision-making, was sufficient to trigger obligations under the International Covenant on Civil and Political Rights (ICCPR)—including non-refoulement—despite the absence of physical custody as per Hirsi.

The ECtHR’s dismissal of such reasoning in S.S. (see § 80) thus highlights a significant divergence between ECHR and the International Covenant on Civil and Political Rights (ICCPR) jurisprudence. That said, I would argue that in A.S. and Others, the facts reveal a higher degree of control exercised by the Italian authorities compared to the S.S. case. This underscores the importance of assessing each case on its own merits, as jurisdictional findings depend on the specific circumstances and evidence presented and less on more academic discourse.

These alternative fora underscore that accountability for outsourced border practices is not foreclosed—only displaced. While the ECtHR may adopt a narrow interpretation of jurisdiction, other institutions, such as the EU courts and the Human Rights Committee, have demonstrated greater openness to recognising functional forms of control. For strategic litigators, this means diversifying venues and tailoring claims to the doctrinal terrain of each forum.

 

Conclusion: A Missed Opportunity, and a Lesson for the Future

While the S.S. judgment may be considered disappointing by some, part of the problem lies in the litigation strategy itself. S.S. is a reminder that strategic litigation must be strategic. The cause may be just. The legal theory may be sound. The political climate may be urgent. But if the factual matrix does not lend itself to a clear jurisdictional finding, the case will falter.

In contrast, other emerging cases—where the Rome MRCC more directly excludes European rescue actors and instructs Libyan authorities to intervene—offer a firmer and more evidentiary-rich basis for establishing jurisdiction. These scenarios may provide the ECtHR with an opportunity to revisit the issues left unresolved in S.S., and to do so through doctrinal continuity rather than rupture. However, it is important to bear in mind that jurisdictional determinations remain case-specific. Recognition of functional jurisdiction in one case does not automatically imply the same outcome in others. That said, courts may be encouraged to draw broader conclusions—such as identifying a minimum threshold of degree of control necessary to trigger jurisdiction in such cases—as they did in Hirsi Jamaa.

S.S. also illustrates a broader truth: when one door closes, others may still be ajar. As the pending Frontex case and the A.S. and Others v. Italy ruling before the UN Human Rights Committee show, different legal regimes may be more receptive to the realities of functional control at sea. Strategic litigation must therefore be both doctrinally agile and forum-sensitive—matching facts not just to law, but to the institutions most likely to listen. Yet whatever the forum of choice, the lesson remains: a sound legal argument must be paired with the right vehicle. Otherwise, as in S.S., the Court may close a door it was not yet ready to open.

New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?

Steve Peers

Introduction

A new EU Regulation, published today in the EU’s Official Journal, sets out new rules on maritime surveillance and rescue operations coordinated by Frontex, the EU’s borders agency. What effect will these rules have on reducing the tragic death toll of migrants in the Mediterranean? And what will happen to the asylum claims of those rescued or intercepted in the high seas?

These new rules are a response to the continued argument that the EU must bear at least some of the blame for the deaths of migrants in the Mediterranean. Furthermore, Member States’ authorities and Frontex have often been blamed for violent behaviour or ‘push-backs’: the forced return of migrants’ vessels to unsafe countries, which were condemned by the European Court of Human Rights in its 2012 judgment in Hirsi v Italy.

The Regulation replaces prior rules adopted by the Council alone in 2010, in the form of a Decision implementing the Schengen Borders Code, which was annulled by the Court of Justice of the European Union (CJEU) after the European Parliament (EP) challenged it on procedural grounds. According to the Court, an EU act concerning human rights and coercive measures had to be adopted by means of the EU’s legislative process.

That meant that the European Commission had to propose a legislative measure, which it did in April 2013. At first, a hard-line group of Member States opposed most of the provisions in this proposal concerning search and rescue and disembarkation (ie the rules on the destination of migrants who were intercepted and rescued), even after the particularly tragic loss of 300 migrants’ lives in autumn 2013. However, these Member States relented, and the European Parliament also pressed to retain and improve upon the Commission’s proposal.

The new Regulation was subsequently agreed, and will come into force on 17 July. But does it mean that the EU will be doing enough to address the loss of life and push-backs in the Mediterranean?

This post addresses these issues in turn, and concludes with an assessment of the issue of the accountability of Frontex. It is an updated and amended version of a previous Statewatch analysis on the new rules.

Search and rescue

The previous Decision contained binding rules on interception, and non-binding rules on search and rescue and disembarkation. However, the CJEU said that even the latter category of rules was binding. As noted above, a group of Member States wanted to water down (as it were) most of these rules in the new Regulation, but was ultimately unsuccessful.

There are new rules on search and rescue, which retain (at the EP’s behest) the Commission’s detailed proposal on this issue, including particularly the definition of whether vessels can be considered in a state of alert, uncertainty or distress. Provided that sinking vessels are detected in time and that these rules are properly applied, the Regulation should therefore ensure that migrants are rescued from drowning wherever possible.

Protection and disembarkation rules

On the other hand, the situation is more complex as regards the rules on protection of those migrants who are potentially at risk of persecution, torture or other forms of ill-treatment in their country of origin (or another country).

The core of the new Regulation is Article 4 – the protection against non-refoulement (removal to an unsafe country) and protection of fundamental rights. Article 4(1) states that no-one can be ‘disembarked in, forced to enter, conducted to or otherwise handed over to’ an unsafe country as further defined in the Regulation. Compared to the 2010 Decision, the Commission proposal, and the Council position, the EP successfully insisted on adding the words ‘forced to enter’ and ‘conducted to’, which clearly covers push-backs.

What is an unsafe country? Article 4(1) goes on to define two situations: (a) a serious risk of subjection of the migrant to the death penalty, torture, persecution or other inhuman or degrading treatment; and (b) the migrant’s life or freedom would be threatened on the grounds set out in the Geneva Convention on Refugees (race, religion, nationality, political opinion or membership of a social group), as well as sexual orientation. Also, a ‘chain refoulement’ is banned: a migrant cannot be handed over to a country which is safe in itself, but which would hand the migrant over to an unsafe country.

Compared to the criteria in EU asylum law (the ‘Qualification Directive’), the first category includes two of the grounds concerning the grant of ‘subsidiary protection’ (ie protection for those who do not qualify as refugees under the Geneva Convention): the death penalty and torture or other inhuman or degrading treatment. It does not include the third category, concerning ill-treatment in the event of armed conflict; however, it does include ‘persecution’, without further definition. The second category is identical to Article 33(1) of the Geneva Convention, except that it does not include the exception in Article 33(2) of that Convention for persons posing security threats et al., and it adds the grounds of ‘sexual orientation’ to those referred to in the Convention. However, the CJEU has confirmed that homosexuals can form a ‘particular social group’ under the EU’s Qualification Directive.

The 2010 Decision referred simply to ‘non-refoulement’ without any further explanation in the main text, while the 2013 proposal (and the Council’s position) referred only to the first category of grounds, without the general reference to ‘persecution’. So the EP clearly succeeded in strengthening this provision.

Next, how must an unsafe country be determined? Article 4(2) states that when considering disembarking migrants in a third country, the host Member State (the Member State from which an operation takes place or from which it is launched: Article 2(3)) must ‘take into account the general situation in that third country’, and cannot disembark or otherwise force to enter, conduct to or hand over if the host Member State or other participating Member States ‘are aware or ought to be aware’ that such a State presents such a risk. The EP insisted on adding the references to forcing to enter, conducting to or handing over.

The EP also obtained an amendment further clarifying the sources of information to take into account – a ‘broad range’, including other Member States, EU bodies, agencies and offices and international bodies. The Member States ‘may’ take into account existing agreements and projects carried out using EU funds.

What are the migrants’ procedural rights? Article 4(3) of the Regulation specifies that (in accordance with the Hirsi judgment) before disembarking or otherwise conducting, etc the migrants to a third State, taking into account the general situation in that State, the Member States’ units shall ‘use all means’ to identify the migrants, assess their circumstances, inform them of their destination and give them an opportunity to object on grounds of the non-refoulement rule. These obligations are subject to an override in the interests of the safety of all the persons involved (see Article 3).

The operational plan must ‘where necessary’ provide for medical staff, interpreters, legal advisers and other relevant experts on shore. Also, the annual reports which Frontex must provide on the application of the Regulation must include ‘further details’ on cases of disembarkation in third States, as regards the application of the relevant criteria. These provisions were insisted upon by the EP, in particular the reference to ‘legal advisers’, but there is ‘wiggle room’ conferred by the words ‘where necessary’ and ‘use all means’.

There are also limits on the exchange of personal data with third countries, an obligation to respect human dignity, and rules on training of staff.

The protection rules cannot be separated from the rules on disembarkation of migrants. According to Article 10, there are three scenarios. First, if migrants are intercepted in the territorial sea or contiguous zone (the waters adjacent to the territorial sea, according to international law: see the definition in Article 2(13)) of a Member State, then they must be disembarked in the coastal Member State, ie the Member State in whose territorial waters or contiguous zone the operation takes place (definition in Article 2(14)). But this is subject to a crucial exception: it is possible under the Regulation that a vessel that has made it this close to a Member State could still be ordered to alter course towards another destination.

Secondly, if migrants are intercepted in the high seas, they may be disembarked in the country from which they are assumed to have departed, subject to the non-refoulement rules in the Regulation. If that is not possible, then disembarkation ‘shall’ take place in the host Member State.

Thirdly, in the event of a search and rescue, the migrants shall be disembarked in a place of safety. If that is not possible, then they shall be disembarked in the host Member State.

These provisions raise many important questions. First of all, it should have been clearly specified that the general non-refoulement rule takes priority over any possibility of disembarkation in a third State.

Secondly, as correctly noted in the preamble to the Regulation, the EU’s asylum legislation applies to anyone in the territorial waters of the EU. This means that, in accordance with that legislation, once an asylum application is made in the territorial waters, the asylum applicant cannot be removed to a third State before there is a decision on the asylum application in accordance with that legislation, save for some limited exceptions not relevant here. The obvious corollary of this is that asylum-seekers who make their application in the territorial waters must be disembarked on the territory of the Member State concerned, since it is unlikely that it will be practical to keep them on board a ship for the entire duration of a full asylum procedure. However, the main text of the Regulation does not reflect the wording of this legislation, since it provides for the possibility of persons intercepted or rescued in the territorial waters to be removed to third countries.

Thirdly, when migrants are disembarked on the territory of a Member State, an awkward question could arise: is that Member State safe? While the specific non-refoulement rules in Article 4(2) and (3) refer to the safety of third countries, the general rule in Article 4(1) refers to countries in general. The European Court of Human Rights and the EU’s Court of Justice have already both concluded that Greece in effect fails the standard set out in Article 4, and litigation in some Member States is also challenging the safety of Italy. So there could be a clash between the non-refoulement rule and the obligation to disembark in a Member State which is the host State, coastal State or place of safety, or in the territorial waters of which the applications were made.

Fourthly, as for those intercepted or rescued in the high seas or the contiguous zone (the Regulation does not contemplate the scenario of migrants being intercepted in the territorial waters of third States), the bulk of the EU’s asylum legislation does not apply. However, the EU’s qualification Directive does – since there is nothing in the text of that Directive to limit its territorial scope. But the wording of the Regulation is confusing in this regard, since it does not refer to the detailed text of that Directive but rather to general standards on non-refoulement, which are different from that Directive in some respects, as noted above (the omission of persons fleeing conflict, for instance).

Having said that, EU rules on asylum procedures and reception conditions do not apply to asylum-seekers who are intercepted or rescued in the high seas or the contiguous zone, and in that case the rules in the Regulation would apply. In effect, the rules summarised above provide for a highly simplified process – which might be dubbed the ‘maritime asylum procedure’ – for such cases. As noted above, though, the words ‘where necessary’ and ‘use all means’ arguably give Member States considerable flexibility not to apply these rules fully, and these rules are (understandably) subject to the requirement to give priority to the safety of all persons. This should mean that in the event of a risk to the safety of persons, if the application of the non-refoulement rule has not yet been assessed, the migrants must be taken to a (safe) Member State to avoid prejudicing the outcome of that assessment. Once the migrants enter a Member State’s territorial waters, EU asylum law will apply fully (arguably it applies even if the application was made before the vessel entered those waters; if not, then there is nothing to stop the asylum-seeker making a renewed application for asylum once the vessel is in those waters).

Since most EU asylum law does not apply to the high seas, the EU’s Dublin rules on asylum responsibility do not apply either, and it is an open question whether they would apply where a person made an application on the high seas and was then brought to the territorial waters of a Member State while the application was being considered. In order to limit somewhat the huge impact of these Dublin rules on the coastal Mediterranean States, EU Member States could agree between themselves on new rules for responsibility for asylum-seekers who make their application on the high seas. If necessary, this could take the form of an amendment to the Dublin rules, added to the proposed new amendment on the application of those rules to unaccompanied minors.

Finally, at the EP’s behest, the preamble to the Regulation clarifies (recital 7) that a shipmaster and crew should not face criminal sanctions for rescuing migrants and bringing them to a place of safety. This provision is welcome, but it would be better if the EU legislation on criminal sanctions for facilitating irregular migration were amended to confirm that there is no criminal liability in such cases.

Accountability of Frontex (and national authorities)

Article 13 of the Regulation, which was inserted at the EP’s insistence, states that Frontex must make annual reports on the application of the Regulation, including on Frontex’s own procedures and information on the application of the Regulation in practice, including ‘detailed information on compliance with fundamental rights and the impact on those rights, and any incidents which may have taken place’. Presumably this means that these reports will have to include full information on where migrants were disembarked and the assessments that were made of the safety of any third countries (and Member States) in each particular case. It would have been better to clarify the extent of these obligations expressly, although any provision on accountability is better than none. The EP also insisted on a recital in the preamble, which repeats text already in the Frontex Regulation regarding Frontex cooperation with third countries. 

When the Frontex Regulation was last amended in 2011, the EP insisted on many new provisions ensuring that Frontex would be complaint with human rights standards, and the application of these new rules has since been examined by the European Ombudsman. Frontex is still refusing to establish an individual complaints procedure for migrants who believe that it has violated the rules binding upon it, on the grounds that it only coordinates Member States’ authorities’ actions, so cannot be held directly responsible for those actions.

While it would be preferable to ensure that individuals could raise complaints that Frontex had not complied with its obligations as regards human rights, it is also true to say that Frontex only coordinates Member States’ authorities’ actions. In any event, those authorities take actions that are not coordinated by Frontex. Given that (as the new Regulation itself implicitly accepts) any control of the EU’s external border, including by means of patrols outside a Member State’s territorial waters, is linked to the application of the EU’s own rules on external border controls, the EU Charter of Rights is applicable to Member States’ control of those borders. And there have been allegations that Member States’ authorities have on some occasions been responsible for push-backs and ill-treatment of migrants at the external borders.

In this context, it is possible that Frontex has been serving for too long as a ‘lightning rod’ for critics of the EU’s external borders control policy, whereas attention should have focussed more on Member States’ authorities, whether they are being coordinated by Frontex or not. The ‘right to life’ in the European Convention of Human Rights entails, according to the European Court of Human Rights, an obligation to hold an independent investigation into losses of life that have arguably resulted from actions of the authorities. So arguably the EU is under an obligation pursuant to the EU Charter of Fundamental Rights to ensure that its Member States conduct such investigations into losses of life which are linked to the implementation of EU policies, in this case the EU external borders rules. Those authorities should also be held accountable for any alleged push-backs or other ill-treatment of migrants at the external borders.

To that end, the EU should agree upon a general framework for independent investigations into such alleged abuses, with the results of these investigations reported and assessed by the Commission as part of its twice-yearly report on the Schengen system. Furthermore, it is long past time for the Commission to stiffen its backbone and to bring infringement proceedings against Member States where there is sufficient evidence that their authorities are responsible for push-backs or other ill-treatment.

Conclusions

The existence of this Regulation is welcome, as its rules on search and rescue are valuable and its provisions on protection, disembarkation and accountability of Frontex are better than nothing at all. But the complex interplay of the provisions of this Regulation with EU asylum law has led to something of a ‘dog’s dinner’ of rules governing the asylum applications of people rescued or intercepted in the Mediterranean, and the rules on the accountability of Frontex are something of a ‘red herring’ in light of the allegations of serious misconduct in some cases by national authorities. Finally, the Commission’s continued unwillingness to bring infringement proceedings in this area (and in the face of its own documented breaches of other EU immigration and asylum law) is undermining the letter and spirit of the Charter by allowing Member States’ authorities to think that they can violate the Charter with impunity. 

Further reading: Council of Europe Parliamentary Assembly report, June 2014

UNHCR comments on the Commission proposal

Barnard & Peers: chapter 9, chapter 26