GoJIL Vol. 14, No. 1 (2024)
Containing the Containment: Using Art. 16 ASR to Overcome Accountability Gaps in Delegated Migration Control
Lina Sophie Möller
Abstract
When the European Court of Human Rights found Italy responsible for push-backs on the high seas in Hirsi Jamaa based on Italy’s effective control over the individuals, it simultaneously solidified the concept of jurisdiction as a prerequisite of human rights obligations and provided States with deeper knowledge on how to avoid responsibility. Since then, instead of pushing the migrants back themselves, destination States increasingly delegate the task of migration control to third States. Under the guise of “capacity building”, they fund, train, and equip third States to exercise containment measures and carry out pull-backs. By way of bilateral agreements, destination States remain in control of the migration flow while avoiding any direct contact with the migrants that would trigger their human rights obligations. One example for this is the Italian-Libyan cooperation under the 2017 Memorandum of Understanding, which was renewed in 2020. Migrants intercepted by Libya are systematically detained in prisons under horrific conditions, which is in clear violation of their human rights. The present article explores ways to allocate responsibility on destination States for their involvement in those human rights violations notwithstanding the lack of jurisdiction. In particular, the article deals with the question whether the general international law of State responsibility is applicable alongside international human rights law. Responsibility for complicity, as lined out in Art. 16 of the Articles on State Responsibility for Internationally Wrongful Acts, is compared to the concept of due diligence obligations in international human rights law, dismissing the claim that the latter poses lex specialis. Subsequently, Art. 16 ASR’s substantive requirements are applied to the case study in order to test the provision’s capability to overcome the accountability gap.
Download the full text as a PDF