Blog by Himani Jha *
In recent years, particularly across Europe, states’ obligations under the ECHR and the 1951 Refugee Convention towards refugees and asylum seekers have increasingly become a game of evasion, where legal responsibilities are acknowledged on paper but strategically circumvented through policies and arrangements designed to avoid direct accountability. This trend, reflected in practices such as pushback and pullback agreements, illustrates how states exploit legal and jurisdictional grey zones to limit their human rights duties without formally breaching international law. As a result, the distressed civilians suffer with no way to find any sort of accountability. Specifically in recent years, many efforts have been made to dodge the obligations under the ECHR and Refugee conventions by the European Nations. While Pushback agreements are seen as violations, a new method of pullback agreements are on the rise. For example, the popularly termed EU’s own Rwanda Plan, or deals with countries like Lebanon, Turkey and others, and the EU altering its “safe third country” rule to allow flexibility to these deals. This piece analyses how the ECtHR’s decision in S.S. v. Italy reflects a missed opportunity to close legal loopholes exploited by pullback agreements, expand the scope of non-refoulement under the ECHR, and hold European states accountable for outsourcing migration control to unsafe third countries.
Background
On June 12 2025, the ECtHR pronounced a judgment in the case of S.S v Italy whereby it rejected the application citing a lack of jurisdiction. The case involved major Human Rights violations, including the violation of several Articles of Section I of the ECHR. The applicants were from Nigeria who started their journey on a rubber dinghy across the Mediterranean. The MRCC (Rome Maritime Rescue Centre) received a distress call from said dingy following which they sent a distress signal in the area. Following the signal, a Dutch vessel volunteered to take on-scene command. Since the area was under Libya’s search and rescue region, the MRCC contacted the Tripoli Joint Rescue Coordination Centre which directed a Libyan vessel to conduct the rescue operation. Some were rescued by the Dutch vessel and some by the Libyan one, while a few could not be rescued at all. Those rescued by Libya faced ill-treatment and abuse in the detention camp they were subsequently taken to. The dinghy was in international waters and legally outside the territorial jurisdiction of Italy. Additionally, the court did not find any effective control on the part of Italy. Therefore, the court ruled that it lacked jurisdiction under Article 1 to adjudicate upon the issues.
Rationae Personae
To tackle the issue of lack of jurisdiction, the ECHR gives ECtHR the power to expand its jurisdiction if needed. Through its own case laws, extraterritorial jurisdiction has been acknowledged by the court. In cases where rationae loci (jurisdiction based on the location of the act) is not met, the mechanism of rationale personae (jurisdiction based on a State’s authority or effective control over the individuals, even outside its territory) has been developed, wherein the State’s control over individuals could be used to establish jurisdiction. As seen in Al-Skeini and Others v. the United Kingdom, jurisdiction can be attributed to a State for acts which produce effects even outside the territory of a state. The very fact that the MRCC chose to send a signal to the Libyan Coast guard meant Italy possessed a degree of control in determining the fate of the dinghy and consequently the individuals. Further, this action coupled with the knowledge of Libya’s ill treatment and abuse which has been flagged by many Human Rights organisations, brings forth the conclusion that the MRCC knew the fate that those aboard the dinghy would end up meeting. It is also important to note that had the dinghy been intercepted by an Italian ship, such an expulsion to a Libyan Vessel would be seen as a breach of the non-refoulement principle. To avoid any rationae loci, bilateral agreements between Italy and Libya were developed. These agreements cleverly tackled this by training Libyan coast guards and letting them intercept the vessels in international waters.
The “Pullback” Agreements
Pullback agreements are agreements between EU and North African States for training coast guards of African States on the Mediterranean Coast to ensure that the vessels trying to cross the sea are intercepted by those countries instead of the EU States. So instead of pushing migrants back, these agreements help the African countries on the Mediterranean coast to pull back migrants. One such pullback agreement was the bilateral agreements between Italy and Libya to curb the influx of migrants. Through the bilateral agreements, Italy has been outsourcing its migration responsibilities to Libya, a State, a country consistently condemned for inhumane conditions and systemic abuse of migrants.
This agreement is at the heart of this judgement because Libya was equipped to carry out such a mission as a direct effect of training received through the bilateral agreement. In other words, when the court ruled a lack of jurisdiction, it confirmed that the pullback agreements are a legitimised way of escaping ECHR obligations. A different, rights-compliant approach would have been to require that such agreements include a mandatory clause obliging the receiving State to take adequate measures to protect the human rights of those returned. The UNHCR too in its written submission mentioned that an agreement relating to training of the coast guards should be conditioned with the receiving State taking adequate measures, and without it, such agreements could not be seen as made in good faith with International Human Rights or Refugee law. Training coast guards to rescue people but not ensuring what ensues after such rescue operations is clearly an easy way out of the obligations under ECHR. The court missed an opportunity to actually set a precedent for this pre-condition to have these agreements.
A Missed Opportunity to Address Loopholes
Italy’s negligence in taking precautions and overlooking its duty to condition Libya with effective measures on Libya’s end should have been treated as a violation of the ECHR citing the indirect consequences it caused. Even the EU-Rwanda Plan is supported with the argument that only the asylum granting procedure is being outsourced and those successful will be given asylum in Europe subsequently. However, the conditions of the places where these procedures are taking place are neither mentioned nor cared about. Therefore, a precedent of conditioning the third state with effective measures was needed to address this existing loophole. This would firstly lead to other EU nations revising their pullback agreements and secondly would open the way for the court to review even indirect consequences of the implementations of such agreements. In a time when pullback agreements are on the rise, this decision would have crystalised the compliance of ECHR when entering into such agreements.
The Court also had an opportunity to expand the non-refoulement principle and encompass within it the pullback strategies that several European states have been trying to apply. The principle of non-refoulement has been interpreted to fall under Article 3 of the ECHR and is thereby within the court’s jurisdiction. Refoulement to another third country where the individual will not be safe from persecution and refusal at the border without assessment as part of pushback strategies are both already included in the principle of non-refoulement. Pull back strategies are a product of a legal vacuum wherein the individual gets sent back without crossing the border legally and is sent to a third country where they will face ill-treatment and abuse and may be deported back or to another country where they will end up with the same fate. This helps European nations escape legal consequences which is exactly what happened in this case. And when the ECtHR ruled a lack of jurisdiction, it legalised this loophole. Ultimately, by failing to confront the structural loopholes that allow such pullback arrangements, the Court has not only missed an opportunity to strengthen human rights protections but may have also inadvertently normalised their circumvention. The judgement consequently may even lead to more exploitation of this legal gap as pullback agreements trend in the EU.
* Himani Jha is an advocate at the Delhi District and High Courts, India and an LLM Candidate specialising in International and Comparative Law at West Bengal National University of Juridical Sciences, India
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Very informative and interesting thought-piece.