The mere filing of a case is rarely a reason for legal commentary but in this particular case, it may well be. A few days ago, a broad-based coalition consisting of NGOs and scholars, led by the Global Legal Action Network (GLAN) filed an application against Italy before the ECtHR with potentially far-reaching implications for European migration policy and especially maritime border control. The issues at hand are so-called ‘pullback’ practices in which the Libyan coastguard – funded, trained, and equipped by the Italian authorities under an agreement signed in February 2017 – prevents migrant boats from heading to Europe’s safe shores.
The application concerns events that unfolded the morning of 6 November 2017. A migrant dinghy in distress before the Libyan coast was simultaneously intercepted by the Libyan coastguard and a rescue ship of the German NGO ‘Seawatch’. A messy and partly confrontational rescue process ensued. Of the (approx.) 120 migrants onboard the dinghy, more than 20 persons drowned before and during the operation. 47 others were ‘pulled back’ by the Libyan coastguard, allegedly experiencing human rights violations including torture and inhumane and degrading treatment upon their return in Libya. 59, more lucky individuals, were rescued by the Seawatch and brought to Italy. By merely looking at the facts, the advantages of having a broad-based coalition become clear. University of London Goldsmiths’ Forensic Architecture agency made available an impressive digital reconstruction of the events that unfolded that morning. These details could be a crucial ingredient for a successful case.
Still, the present case comes at a difficult time for migrant rights advocates in Europe. With NGO operations ‘in decline’ and externalisation measures such as the controversial EU-Turkey agreement officially praised as a success, migrant supporters seek to reverse the momentum. Strategic litigation, if effective, promises to deliver such a turning point. A condemnation by the ECtHR of pullback arrangements between states within (Italy) and principally outside (Libya) its jurisdiction would mean a serious blow to border control practices on the Mediterranean. Indeed, the application targets nothing less than the ‘structural conditions’ for human rights violations on the high seas and in Libya as Itamar Mann, legal counsel and contributor to this blog, explained on Twitter. At the same time, it is important to keep in mind the challenges and risks as the application goes forward.
The risks and challenges of going to the Strasbourg Court
The management of a successful test case is a long road as I discuss in my forthcoming monograph Demanding Rights: Europe’s Supranational Courts and the Dilemma of Migrant Rights (Cambridge Asylum and Migration Series). It starts much before the actual application is filed and ends years and possibly decades after the judgment. This short analysis will therefore be limited to those questions that arise at this particular stage.
Firstly, the application still needs to be declared admissible. The clear factual account provided by Forensic Architecture and worldwide media coverage through Associated Press certainly increase the urgency for the ECtHR to deal with the matter. However, apart from the central jurisdictional question discussed below, one issue that often arises in migration-related applications is that they are declared inadmissible or struck off the Court’s docket. On the one hand, governments have been able to increase the number of such instances by deploying ‘anticipatory measures’, for instance granting exceptional permits to individuals in return for a removal of the legal action. On the other hand, lawyers have often had practical difficulties in maintaining contact with clients who have been deported or forced into ‘illegality’. In the present case, 15 of the applicants are now resident in Italy, which reduces the risk of a complete strike-out. However, as far as human rights violations result from returns to Libya, the human rights lawyers rely on the account of only two applicants who are now back in Nigeria, one of which was sold after the pullback. The danger of losing contact with forcibly returned clients is very real as proven in the Hussun case. There, the lawyers (who later also brought the Hirsi case) were unable to prove to the Court that they still legitimately represented 84 persons who had been deported from Lampedusa to Libya.
Caution will also have to be paid to adverse outcomes through restrained or ‘liminal’ judgments, which only seemingly improve the situation. The obvious goal of the applicants and their defenders is to have the Court assert its jurisdiction by holding that a State Party can retain effective control over persons also when its officers ‘only’ equip, train, and possibly instruct vessels of a third state. This model, of course, is itself an evolution compared to previous practice. In 2012, the ECtHR condemned Italy for a ‘pushback’ policy in Hirsi when its coastguard physically intercepted a migrant boat and returned approximately 200 passengers to Libya. Confronted with the question of the extraterritorial application of the ECHR, the Court asserted that the applicants had been ‘under the continuous and exclusive de jure and de facto control of the Italian authorities’ (para. 81). The result was a breach not only of Art. 3 of the ECHR due to refoulement, but also of the prohibition of collective expulsions under Art. 4 of Protocol 4 to the Convention. Mann (2013) was the first to remark that the Court had actually reviewed a ‘primitive’ version of interceptions. Such a judgment, Mann argued, could even serve as a ‘blueprint’ for legally more advanced policies. Pullback arrangements fall precisely in this category, establishing ‘contactless control’, to use the words of Violeta Moreno-Lax (2017), likewise acting as a counsel in this case.
It is not difficult to imagine similar trajectories in the present case. What if the Court perceived it to be relevant that Italy’s coastguard failed to persuade the Libyan officers to cooperate with the German NGO? Not only cynics would hypothesize future ‘maritime dramas’ to be staged for the consumption of a judicial audience. Another double-edged result would be if the Court dealt only with the specific rescue operation but refused to discuss whether Italy had breached the non-refoulement principle by concluding a bilateral agreement under which potential refugees are returned to Libya.
Finally, the applicants and their defenders are facing a political uphill battle at a time when it has become commonplace to tolerate the collateral damage caused by border control. Sadly, Europe’s supranational courts are not immune to such reflexes. The CJEU has avoided two major ‘upsets’ in recent months. It has denied jurisdiction over the EU-Turkey Agreement in a convoluted and formalistic judgment. In X and X, the CJEU found Belgium not to be obliged under EU law to grant humanitarian visas from embassies abroad, snapping that finding otherwise ‘would undermine the general structure’ of the (failing) Dublin system (arguably very much the point). But politics also played a role in Hirsi. In reality, Italy pursued a pushback policy only for a few months under the Berlusconi government in 2009, suspending it for various reasons even before the Hirsi application was communicated. By the time of the ruling in early 2012, the governing coalition had been replaced, making it easier for the (new) Italian administration to accept the verdict. The challenge for the applicants in the present case will be to convince the ECtHR that pullback policies are not only inhumane, but also expandable in the sense that they do not, in fact, ‘stem the tide’ in the way its proponents like to pretend. The public would likewise have to be convinced as even a positive judgment could otherwise result in unwanted backlash across Europe.
A risky action of (potentially) tremendous importance
As an instance of strategic litigation, the application made by GLAN is therefore not without its perils. In the worst case scenario, the ECtHR could provide pullback policies with legitimation similar to the acceptance of pushbacks by the US Supreme Court in Sale. More likely, the ECtHR will recuse itself in some way, leaving human rights defenders behind with the costs in money and effort, and with shattered hopes. But the impact of a successful action – by no means an impossibility – could be tremendous. Not only would it be a rare victory at a difficult time, but it would eclipse the Hirsi decision in both legal and practical significance. The pullback policies in question are common practice in Europe these days. In addition, the action offers a rare opportunity for the ECtHR to illuminate how European border policies fuel some of the gravest human rights violations in the world today such as the auctioning of migrants in Libya. The question is whether the time is ripe for such a ground-breaking ruling.