This post is written by Marie-Bénédicte Dembour. She is Professor of Law and Anthropology at the University of Sussex. She is the author of Who Believes in Human Rights? Reflections on the European Convention and currently preparing a monograph provisionally entitled Migrant First, Human When? Testing Human Rights in the European and Inter-American Courts.
Europe does not like the ‘irregular’ migrants who, typically originating from economically struggling and/or war-torn countries, arrive on her shores without any document – and certainly no visa – after long travels. She has devised more and more strategies to keep these people at bay. One of these is to persuade so-called transit countries to take back migrants intercepted at sea. An emblematic example of this strategy is a bilateral cooperation agreement which Italy and Libya signed in December 2007 and its Additional Protocol of February 2009, whereby Libya pledged to support the Italian authorities in their fight against clandestine immigration in exchange for infrastructure, training and money. From the perspective of the authorities, the cooperation was entirely successful. It led the Italian Minister of the Interior to report and boast to the Italian Senate in May 2009, for example, that thanks to the agreement 471 irregular migrants had been intercepted on the high seas and transferred to Libya earlier that month. From a human rights perspective, this kind of strategy is disastrous from many various reasons, not all of which can be detailed in this blog.
Hirsi Jamaa and Others v. Italy is the first case in which the European Court of Human Rights delivers a judgment on interception-at-sea. In the present context the latter term is a short-hand for referring to the enforced return of irregular migrants to the point of departure of their attempted Mediterranean crossing, without any individual processing, let alone examination of asylum claims. Unanimously, the Grand Chamber found a violation of Article 3 ECHR prohibiting inhuman and degrading treatment on a double count (risk of ill-treatment in Libya and risk of repatriation from Libya to countries where ill-treatment is rife), a violation of Article 4 of Protocol no. 4 prohibiting collective expulsion and a violation of Article 13 ECHR guaranteeing a domestic remedy for any arguable complaint of a violation of the Convention. These verdicts, reached by the Grand Chamber unanimously on 23 February 2012, undoubtedly put into question the kind of bilateral and multilateral agreements which have been signed by European states in the last decade or so in order to fight clandestine immigration, not to mention the fact that they indirectly require major aspects of European migration policy to be revised.