- Assistance and protection in the Protocol
- International human rights and refugee law
- Vulnerable groups
- Positive and negative obligations of the State
- Identification of smuggled migrants and first responses
- Participation of smuggled migrants in legal proceedings
- The role of non-governmental organizations
- Smuggled migrants & other categories of migrants
- Short-, mid- and long-term measures
Published in January 2019.
This module is a resource for lecturers
This section contains material that is meant to support lecturers and provide ideas for interactive discussions and case-based analysis of the topic under consideration.
Exercise 1: What are the human rights of smuggled migrants?
Proposed questions for discussion:
- Do smuggled migrants deserve human rights in the country of transit or destination given they are undocumented/are in the State irregularly?
- Are/should irregular migrants be entitled to economic, social and cultural rights (e.g. shelter, food, water, education, work and welfare)?
- Are States obligated to ensure these rights or is it a matter of discretion?
It is recommended that students' answers be recorded (black board, flipchart, sticky cards or paper board) to provide a reference for use throughout the class and to encourage students to critically review their initial answers.
Exercise 2: What are States' obligations with regard to the human rights of smuggled migrants?
The following short movies may be shown. It is important to point out that the comments made by viewers of the YouTube platform should be disregarded:
- Chaos on Chios as refugee camp unable to shelter everyone by Euronews (1:35 minutes). The short video presents the dire living conditions in the perimeter of an overcrowded refugee camp in Greece.
- Tensions high as migrant camp attacked by Euronews (app. 1 minute). The footage reports on violent incidents occurring in a refugee camp in Greece.
Proposed questions for discussion:
- Do you consider the State to be in breach of positive and/or negative obligations? Please explain.
- Do you think that human rights have been infringed upon? If so, how could such an infringement be avoided?
Exercise 3: Assistance to and protection of migrants cooperating with justice
It is suggested that students read the following article: They Helped Prosecutors After Escaping Death in a Smuggler's Truck. Now They Are Being Deported by The Intercept
Afterwards, the lecturer should facilitate a discussion on whether smuggled migrants are entitled (legally and/or ethically) to protection and assistance when cooperating with justice.
Exercise 4: Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09
European Court of Human Rights
Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09
The Applicants were part of a group of about two hundred individuals who left Libya in 2009 aboard three vessels with the aim of reaching the Italian coast. On 6 May 2009, when the vessels were within the Maltese Search and Rescue Region of responsibility, they were intercepted by ships from the Italian Revenue Police and the Coastguard. The occupants of the intercepted vessels were transferred onto Italian military ships and returned to Tripoli. The Applicants stated that during that voyage the Italian authorities did not inform them of their destination and took no steps to identify them. On arrival in the Port of Tripoli the migrants were handed over to the Libyan authorities. According to the Applicants, they objected to being handed over to the Libyan authorities but were forced to leave the Italian ships. At a press conference held on the following day, the Italian Minister of the Interior stated that the operations to intercept vessels on the high seas and to push migrants back to Libya were the consequence of the entry into force, in February 2009, of bilateral agreements concluded with Libya, and represented an important turning point in the fight against clandestine immigration.
Two of the Applicants died in unknown circumstances after the above mentioned events. Fourteen of the Applicants were granted refugee status by the Office of UNHCR in Tripoli between June and October 2009.
Several NGOs reported on torture, cruel, inhuman and degrading treatment migrants were subjected to upon return to Libya.
DECISION AND REASONING (SUMMARY)
The Court has found that the Applicants were within the jurisdiction of Italy for the purposes of article 1 of the Convention. The principle of international law enshrined in the Italian Navigation Code envisages that a vessel sailing on the high seas was subject to the exclusive jurisdiction of the State of the flag it was flying. Accordingly, the events giving rise to the alleged violations fell within Italy's jurisdiction within the meaning of article 1 of the Convention.
The Court noted the disturbing conclusions of numerous organizations regarding the treatment of clandestine immigrants in Libya. No distinction was made between irregular migrants and asylum-seekers, who were systematically arrested and detained in conditions which observers had described as inhuman, reporting, in particular, cases of torture. Clandestine migrants were at risk of being returned to their countries of origin at any time. The Court observed that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights were not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources had reported practices which were contrary to the principles of the [international human rights treaties]. Furthermore, Italy could not evade its own responsibility under [international human rights treaties] by relying on its subsequent obligations arising out of bilateral agreements with Libya. Since the situation in Libya was well-known and easy to verify at the material time, the Italian authorities had or should have known, when removing the Applicants, that they would be exposed to treatment in breach of the Convention. Moreover, the fact that the Applicants had failed to expressly request asylum did not exempt Italy from fulfilling its obligations. The Court noted the obligations of States arising out of international refugee law, including the "principle of non-refoulement". Furthermore, the Court considered that the shared situation of the Applicants and many other clandestine migrants in Libya did not make the alleged risk any less individual and concluded that by transferring the Applicants to Libya, the Italian authorities had, in full knowledge of the facts, exposed them to treatment proscribed by [international human rights law]. The Court also concluded that when the Applicants were transferred to Libya, the Italian authorities had or should have known that there were insufficient guarantees protecting them from the risk of being arbitrarily returned to their respective countries of origin.
The Court (…) sought to ascertain whether the transfer of the Applicants to Libya had constituted a "collective expulsion of aliens" [given that the migrants had been intercept outside the territory of Italy]. The Court observed that [nothing] precluded extra-territorial application of that article. Furthermore, limiting its application to collective expulsions from the national territory of Member States would mean that a significant component of contemporary migratory patterns would not fall within the ambit of that provision and would deprive migrants of an examination of their personal circumstances before being expelled. The notion of "expulsion" was principally territorial, as was the notion of "jurisdiction". Where, however, as in the instant case, the Court had found that a Contracting State had, exceptionally, exercised its jurisdiction outside its national territory, it could accept that the exercise of extraterritorial jurisdiction by that State had taken the form of collective expulsion. Furthermore, the special nature of the maritime environment could not justify an area outside the law where individuals were covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention. The transfer of the Applicants to Libya had been carried out without any examination of each Applicant's individual situation. The Applicants had not been subjected to any identification procedure by the Italian authorities, which had restricted themselves to embarking and disembarking them in Libya. The removal of the Applicants had been of a collective nature, in breach of [international human rights law].
The Court reiterated the importance of guaranteeing anyone subject to a removal measure, the consequences of which were potentially irreversible, the right to obtain sufficient information to enable them to gain effective access to the relevant procedures and to substantiate their complaints. (…) The Applicants had been deprived of any remedy which would have enabled them to lodge their complaints under [international human rights law] with a competent authority and to obtain a thorough and rigorous assessment of their requests before the removal measure was enforced.
The Court also indicated that the Italian Government must take all possible steps to obtain assurances from the Libyan authorities that the Applicants will not be subjected to treatment incompatible with article 3 of the Convention or arbitrarily repatriated.
Full judgment available here.
Note : This important case was heard by the European Court of Human Rights and, as such, decided on the grounds of the European Convention on Human Rights. Given its specific geographic context, the parts of the excerpt referring to the European Convention on Human Rights were replaced with "international human rights law" so as not to restrict use of the case. The European Convention on Human Rights is entirely consistent with international human rights law and the contents explored in this Module. It can be addressed based on the legal instruments mentioned throughout rather than the European Convention on Human Rights.
Proposed discussion questions:
- In your view, what obligations were binding upon Italy considering the facts of the case? Justify your answer based on international and national law.
- What obligations, if any, were breached according to the Court? Explain your answer.
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