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Human Rights Public International LawPROBLEM 5
Learning objectives:
1. What treaty applies to this case?
2. Does Italy have obligations under the treaty that you found in learning objective 1? If so, what kind of
obligations do they have?
o Jurisdiction
o State obligations → refer to the Hirsi Jamaa case
o Derogations → refer to the Hirsi Jamaa case
3. Where can Italy be held responsible for their obligations?
o ECtHR
o Admissibility Criteria
NB: Do not work out violations of article 13 ECHR and article 4 of the 4th protocol to the ECHR
Literature:
- Jan Klabbers, ‘International law’, Chapter 6
- E-lessons: 20, 21
- Hirsi Jamaa and Others v. Italy
- Karpenko v. Russia
- Salah Sheekh v. The Netherlands
1 WHAT TREATY APPLIES TO THIS CASE?
The ECHR applies to this case.
In 1950, the Council of Europe adopted the European Convention of Human Rights (ECHR) which
predominantly deals with civil and political rights.
9 Social and economic rights are guaranteed by the Council of Europe’s European Social
Charter, which entered into force in 1965.
Member State compliance under the ECHR is monitored by the European Court of Human Rights. This
judicial body considers both state and individual complaints about human rights violations by member
states (see art. 33 and 34 ECHR).
2 DOES ITALY HAVE OBLIGATIONS UNDER THE TREATY THAT YOU FOUND IN LO
1? IF SO, WHAT KIND OF OBLIGATIONS DO THEY HAVE?
Jurisdiction
Under art. 1 of the Convention, the undertaking of the Contracting States is to ‘secure’ to everyone
within their ‘jurisdiction’ the rights and freedoms defined in Section I. The exercise of jurisdiction is a
necessary condition for a Contracting State to be able to be held responsible for acts or omissions
imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the
Convention (para 70, Hirsi Jamaa)
- The jurisdiction of a State, within the meaning of art. 1, is essentially territorial. It is presumed to
be exercised normally throughout the State's territory (para 71).
o Case: it is not disputed before the Court that the events at issue occurred on the high
seas, on board military ships flying the Italian flag. The respondent Government
acknowledge, furthermore, that the Revenue Police and Coastguard ships onto which
the applicants were embarked were fully within Italian jurisdiction (para 76)
Italy cannot circumvent its “jurisdiction” under the Convention by describing the events
at issue as rescue operations on the high seas (para 79). In the period between
boarding the ships of the Italian armed forces and being handed over to the Libyan
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