The Interception of Refugees and Migrants on the High Seas- The Scope of Applicability of the Principle of Non-Refoulement and Extraterritorial Jurisdiction

Sammanfattning: According to the European Convention on Human Rights, jurisdiction is a prerequisite for holding a contracting state responsible when an allegation of infringement of the ECHR arises, such as the principle of non-refoulement. States implement extraterritorial migration management measures trying to avoid triggering the principle of non-refoulement arguing that it cannot be applied extraterritorially. The cooperation between Italy and Libya is an example of extraterritorial migration management, that highlights the difficulties in determining the extent of the applicability of non-refoulement. Migrants as well as refugees are intercepted on the high seas and returned to Libya with the support of Italy in accordance with the 2017 Memorandum of Understanding. Whilst in Libya migrants and refugees face the risk of torture and other ill-treatment. The aim of this thesis is to examine to what extent the principle of non-refoulement in ECHR protects refugees and migrants intercepted on the high seas. This study shows that extent of the protection of non-refoulement in the ECHR extends to the high seas, however this is dependent on the extent of extraterritorial jurisdiction within the ECHR. According to the case-law of the European Court of Human Rights extraterritorial jurisdiction is applicable in interception operations if there is de jure and or de facto control. However new developments raise the question if contactless control can constitute for de facto jurisdiction; this could potentially expand the extent of the protection of non-refoulement in the ECHR of refugees and migrants intercepted on the high seas.