Mariagiulia Giuffré

WATERED-DOWN RIGHTS ON THE HIGH SEAS: HIRSI JAMAA AND OTHERS V ITALY (2012)

On 23 February 2012, the European Court of Human Rights unanimously found Italy in violation of the fundamental rights of migrants and refugees intercepted on the high seas and pushed-back to an unsafe third country (Libya) in the absence of any procedural safeguards. Continuing its progress away from a territorial approach to jurisdiction, in Hirsi, the Grand Chamber casts new light on the extraterritorial scope of the principle of non-refoulement, the right to an effective remedy, and the prohibition of collective expulsions. The judgment could, therefore, serve as guidance for other States in order to re-modulate their migration control operations in consonance with the standards of refugee and human rights law.

Exploring the boundaries of refugee law : current protection challenges

Protection challenges around the globe require innovative legal, policy and practical responses. Drawing primarily from a new generation of researchers in the field of refugee law, this volume explores the ‘boundaries’ of refugee law. On the one hand, it ascertains the scope of the legal provisions by highlighting new trends in State practice and analysing the jurisprudence of international human rights bodies, as well as national and international Courts. On the other hand, it marks the boundaries of refugee law as ‘legal frontiers’ whilst exploring new approaches and new frameworks that are necessary in order to address the emerging protection challenges.

An Appraisal of Diplomatic Assurances One Year after Othman (Abu Qatada) v United Kingdom (2012)

In Abu Qatada v UK, the European Court of Human Rights (ECtHR) held that deportation with assurances would not be in violation of Article 3 (prohibition of torture) of the Convention. Rather it found that deportation would breach one of the qualified, derogable rights of the Convention, Article 6 (right to a fair trial), because of the real risk that torture-based evidence would be admitted at the applicant’s retrial in Jordan. After an overview of Abu Qatada’s long-standing legal battle before and after the ECtHR’s decision, this article argues that reliance on diplomatic assurances on the fair treatment of the returnee enhances the risk that human rights are redefined into a political issue where power is delegated to the executive and security sphere. It concludes that the general image of the ECtHR, one year after Abu Qatada, is one of a tightrope walker nimbly (yet not always convincingly) keeping the equilibrium between, on the one hand, the effort to protect human rights, and on the other hand, the exigency to uphold States’ needs to combat terrorism at all costs, even cooperating on deportation with countries that notoriously violate human rights.