¹ Hirsi Jamaa v. Italy, App. No. 27765/09 (Eur. Ct. H.R. Feb. 23, 2012) [hereinafter Judgment]. Judgments and decisions of the Court cited herein are available online at http://www.echr.coe.int.

² Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 3, Nov. 4, 1950, ETS No. 5, 213 UNTS 222.

³ United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 3 [hereinafter UNCLOS], available at http://www.un.org/Depts/los/; International Convention on Maritime Search and Rescue, Apr. 27, 1979, TIAS No. 11093, 1405 UNTS 118; Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150, as amended by Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267.

⁴ The interdiction and most of the travel took place in Libya’s exclusive economic zone, declared in 2009. General People’s Committee Decision No. 260 of A.J. 1377, Concerning the Declaration of the Exclusive Economic Zone of the Great Socialist People’s Libyan Arab Jamahiriya (May 31, 2009), at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/lby_2009_declaration_e.pdf. Since, according to Article 58(1) of UNCLOS, supra note 3, all states enjoy the freedom of navigation applicable to the high seas in the exclusive economic zone of other states, the distinction does not result in any practical consequences.

⁵ The Court’s rejection of this argument was particularly based on declarations by Italian officials in the aftermath of the operation. See, for example, the statements of Roberto Maroni, minister of the interior, to the Italian Parliament on May 14, 2009, at http://www.camera.it/_dati/leg16/lavori/stenografici/sed177/pdfs005.pdf, and on May 25, 2009, at http://www.senato.it/service/PDF/PDFServer/BGT/00424000.pdf (in Italian).

⁶ In their pleadings and at oral argument, the applicants also alleged the use of excessive force, seizure of documents and other items, and other mistreatment by the Italian authorities on board the military vessels, but these claims were not addressed in the Court’s final judgment. see Grand Chamber Hearing, Hirsi and Others v. Italy (June 22, 2011), at http://www.echr.coe.int/ECHR/EN/Header/Press/Multimedia/Webcasts+of+public+hearings/Webcasts2011.htm; see also UN High Commissioner for Refugees, Submission in the Case of Hirsi and Others v. Italy, para. 2.2.6 (Mar. 2010), at http://www.unhcr.org/refworld/docid/4b97778d2.html.

⁷ Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Securing Certain Rights and Freedoms Other Than Those Already Included in the Convention and in the First Protocol Thereto, Art. 4, opened for signature Sept. 16, 1963, ETS No. 46, as amended by Protocol No. 11, ETS No. 155 (entered into force Nov. 1, 1998), at http://www.coe.int.

⁸ Judgment, para. 198 (quoting Shamayev v. Georgia, 2005-III ECR 153, para. 460).

⁹ In this connection, and “[w]ith all due respect,” Judge Pinto explicitly criticized the decision of the U.S. Supreme Court in Sale v. Haitian Centers Council, 509 U.S. 155 (1993). The Concurring Opinion of Judge Pinto de Albuquerque is attached to the Judgment. The paragraphs are not numbered and emphasis is omitted from all the quotations here except the first and the seventh.

¹⁰ Al-Skeini v. United Kingdom, App. No. 55721/07 (Eur. Ct. H.R. July 7, 2011) (reported by Miša Zgonec-Rožej at 106 AJIL 131 (2012)).

¹¹ Medvedyev v. France, App. No. 3394/03, 51 Eur. H.R. Rep. 39 (2010).

¹² See also id., para. 67; Al-Saadoon v. United Kingdom, App. No. 61498/08, 49 Eur. H.R. Rep. SE11, paras. 87–88 (2009).

¹³ The one point that has not been addressed at all by the Court and consequently remains open concerns the legality of push-back operations themselves, even in situations where the modalities fully conform to the requirements of human rights law. According to one of the best-established principles of international law, states have exclusive jurisdiction over vessels flying their flag and navigating on the high seas.UNCLOS,supra note 3, Art. 92(1). Even if the vessel is flagless, as vessels used for travel between Libya and Italy generally are, it is not certain that a rule has crystallized allowing third states to undertake enforcement action with respect to migrants on board. see Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea 231 (2009).

¹⁴ All individuals are protected by the global human rights law instruments regardless of their categorization and some in addition bythe ECHR, but only refugees are entitled to the further protection afforded by the 1951 Geneva Convention and 1967 Protocolon refugees, supra note 3, and other relevant instruments. Goodwin-Gill, Guy S. & McAdam, Jane, The Refugee in International Law, ch. 2 (3d ed. 2007)Google Scholar.

¹⁵ Drieman v. Norway, App. No. 33678/96 (Eur. Ct. H.R. May 4, 2000).

¹⁶ Medvedyev, supra note 11, paras. 66–67; Women on Waves v. Portugal, App. No. 31276/05 (Eur. Ct. H.R. Feb.3, 2009) (in French); Xhavara v. Italy, App. No. 39473/98 (Eur. Ct. H.R. Jan. 11, 2001); Rigopoulos v. Spain, 1999-II ECR 435 (1999).

¹⁷ Haitian Centre for Human Rights v. United States, Case 10.675, Inter-Am. Comm’n H.R., Report No. 51/96, OEA/Ser.L/V/II.95 Doc. 7 rev., at 550 (1997), available at http://www.iachr.org; P.K. v. Spain, Communication No. 323/2007 (Nov. 11, 2008), Report of the Committee Against Torture 366, UN GAOR, 64th Sess., Supp. No. 44, UN Doc. A/64/44 (2009).

¹⁸ Irini Papanicolopulu, A Missing Part of the Law of the Sea Convention: Addressing Issues of State Jurisdiction over Persons at Sea, in The Limits of Maritime Jurisdiction(M.S.Kwon, C.Schofield,& S.Lee eds., forthcoming 2013).

¹⁹ As reported by the Italian news agency ANSA, Intesa tra Italia e Libia su migranti [Agreement Between Italy and Libya on Migrants] (Apr. 3, 2012, 7:05 PM), at http://www.ansa.it/web/notizie/videogallery/italia/2012/04/03/visualizza_new.html_160711462.html. According to journalists, the content of the new agreements follows that of the previous ones. Livia Ermini, Respingimenti, accordi Italia-Libia identici a quando c’era Berlusconi [Push-Backs, Italy-Libya Agreements the Same as When Berlusconi Was in Charge], la Reppubblica.it, June 19, 2012, at http://www.repubblica.it/solidarieta/profughi/2012/06/19/news/livia_ermini-37510944/.

²⁰ Report of the High Commissioner Under Human Rights Council Resolution S-15/1, UN Doc. A/HRC/17/45(June7,2011),available at http://www.ohchr.org/EN/HRBodies/HRC/Pages//Documents.aspx; Report of the International Commission of Inquiry on Libya, UN Doc. A/HRC/19/68 (Mar. 8, 2012), available at id. ; Amnesty International, Annual Report 2012—Libya (2012), at http://www.amnesty.org/en/region/libya/report-2012.

²¹ This issue was recently submitted to the French courts. Complaint submitted to the Tribunal de Grande Instance of Paris in the name of four Ethiopian survivors of a failed attempt to reach Italy by sea from Libya (Apr. 11, 2012), at http://www.fidh.org/IMG/pdf/plainte.pdf (in French). Data on the presence of NATO vessels in the marine area between Italy and Libya, where more than fifteen hundred persons lost their lives in 2011, are analyzed in a report on the incident that is the subject of the above complaint. Charles Heller, Lorenzo Pezzani,& Situ Studio, Report on the “Left-to-Die Boat “(Apr. 11, 2012), at http://migrantsatsea.files.wordpress.com/2012/04/forensic-oceanography-report-11april2012.pdf.