The Extraterritorial Reach of Positive Obligations : the ECtHR Case of S.S. and the Others v. Italy

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dc.contributor Helsingin yliopisto, Oikeustieteellinen tiedekunta fi
dc.contributor University of Helsinki, Faculty of Law en
dc.contributor Helsingfors universitet, Juridiska fakulteten sv
dc.contributor.author Heinänen, Saku
dc.date.issued 2021
dc.identifier.uri URN:NBN:fi:hulib-202105192281
dc.identifier.uri http://hdl.handle.net/10138/330078
dc.description.abstract The thesis is a study of the communicated case ‘S.S. and the Others v. Italy’ (application no. 21660/80) of the European Court of Human Rights (ECtHR). The application is on behalf of the victims of an incident in which a migrant boat found itself in distress after having left Libya for Europe. The Libyan Coast Guard failed to rescue all of the migrants and allegedly acted negligently, mistreating those they took onboard, and returned them to Libya, exposing them to continued ill-treatment and some of them also to forced return (refoulement) to their countries of origin. Italy is a State Party to the European Convention on Human Rights (ECHR), and has a bilateral agreement, ‘Memorandum of Understanding’ (MoU), with Libya (a non-ECHR State). On the basis of the MoU, Italy funds and equips the Libyan Coast Guard. The agreement can be seen as a means to ‘outsource’ border control and to instruct Libya to intercept migrants before they reach Italy and the European Union (EU), thus effectively circumventing the obligations of the ECHR. The research question is in two parts. First, I ask whether Italy had extraterritorial jurisdiction as stated in Article 1 ECHR, and second, if it had, has Italy violated its positive obligations to secure the applicants’ rights. Jurisdiction is a ‘threshold criterium’ for the Court to study the merits of an application. As for the violations, the thesis focuses on Article 2 (right to life) and Article 3 (prohibition of torture; includes also the prohibition of forced return, or refoulement). The methodology is doctrinal in that the thesis aims to examine critically the central features of the relevant legislation and case law in order to create an arguably correct and sufficiently complete statement on the Court’s reasoning and outcome. The main sources are the provisions of the ECHR itself and the relevant previous case law of the Court, together with a literature review. Additionally, there are third-party interveners’ statements and a video reconstruction of the events. The Court’s questions and information requests to the parties, as attached to the application, are used as a starting point. Besides a hypothesis of the argumentation and the decision of the Court, some estimations are made about what could be the consequences of the decision to such bilateral pacts as the MoU between Italy and Libya, and, in general, to ‘deals’ between the EU Member States and third or transit countries. Finally, the thesis reflects on the eventual repercussions on the topical issue of the EU Commission’s 23.9.2020 proposal for the New Pact on Migration and Asylum, which appears to encourage the Member States to maintain and develop outsourcing practices. en
dc.language.iso eng
dc.publisher Helsingin yliopisto fi
dc.publisher University of Helsinki en
dc.publisher Helsingfors universitet sv
dc.subject Jurisdiction
dc.subject responsibility
dc.subject positive obligations
dc.subject effective control
dc.subject decisive influence
dc.subject extraterritorial
dc.subject human rights
dc.subject ECHR
dc.subject ECtHR
dc.subject refugees
dc.subject migration
dc.subject EU
dc.subject border control
dc.subject outsourcing
dc.subject Italy
dc.subject Libya
dc.title The Extraterritorial Reach of Positive Obligations : the ECtHR Case of S.S. and the Others v. Italy en
dc.title.alternative Positiivisten velvoitteiden eksterritoriaalinen ulottuvuus : EIT-tapaus S.S. and the Others v. Italy fi
dc.type.ontasot pro gradu -tutkielmat fi
dc.type.ontasot master's thesis en
dc.type.ontasot pro gradu-avhandlingar sv
dct.identifier.urn URN:NBN:fi:hulib-202105192281
dc.subject.specialization Kansainvälinen oikeus fi
dc.subject.specialization International Law en
dc.subject.specialization Folkrätt sv
dc.subject.degreeprogram Oikeustieteen maisterin koulutusohjelma fi
dc.subject.degreeprogram Master's Programme in Law en
dc.subject.degreeprogram Magisterprogrammet i rättsvetenskap sv

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