Abstract
AbstractAvailable accounts on jurisdiction, effective control, and the reach of human rights protections fail to provide a coherent construction that is principled and applicable across the board, within and beyond territorial borders. The “functional jurisdiction” model posited herein resolves these incongruities by looking at the normative foundation of sovereign authority overall, predicated on an exercise of “public powers” through which State functions are discharged, taking the form of policy delivery and/or operational action, whether inland or offshore, and which translates into “situational” control. Using the pending case of S.S. and Others v. Italy as an illustration, the article focuses on the sovereign-authority nexus that unites a specific state with a specific individual in a specific situation, triggering human rights obligations even through mechanisms of “contactless control” exercised via remote management techniques and/or through a proxy third actor. The role of extraterritorial operations, qua complex mechanisms of governance that implement broader policies with a planning, rollout and post-implementation phase, is central to this re-conceptualization, as is also the understanding that what makes control “effective” is its capacity to determine the material course of events and the resulting position in which those affected find themselves upon execution of the measure(s) concerned.
Highlights
Available accounts on jurisdiction, effective control, and the reach of human rights protections fail to provide a coherent construction that is principled and applicable across the board, within and beyond territorial borders
The article focuses on the sovereign-authority nexus that unites a specific state with a specific individual in a specific situation, triggering human rights obligations even through mechanisms of “contactless control” exercised via remote management techniques and/or through a proxy third actor
It is the exercise of jurisdiction that determines whether a state can be held accountable for human rights violations in a specific situation, the importance of defining the term and identifying the factors through which it can be ascertained
Summary
The involvement of the LYCG in S.S. is not an isolated event and must be appraised against its wider context. Comm’r for Human Rights, Desperate and Dangerous: Report on the Human Rights Situation of Migrants and Refugees in Libya, at 17 (Dec. 20, 2018), https://www.ohchr.org/Documents/Countries/LY/LibyaMigrationReport.pdf (reporting an interview where a LYCG spokesperson confirmed that coordination of SAR operations takes place “with the support of the MCCR [i.e., Rome MRCC]” and that the distress calls they receive and respond to are “coming through Italy.”). 7, 2017); U.N. Office of the High Comm’r for Human Rights & U.N. Support Mission in Libya, Abuse Behind Bars: Arbitrary and Unlawful Detention in Libya (Apr. 2018), http://www.ohchr.org/Documents/Countries/LY/AbuseBehindBarsArbitraryUnlawful_EN.pdf. Efforts date back to the early 2000s,44 with the 2008 Treaty of Friendship of the Berlusconi-Gaddafi period marking a significant inflection point.45 They have continued in the postGaddafi era, with Italy providing key logistic, financial, political, and operative support Efforts date back to the early 2000s,44 with the 2008 Treaty of Friendship of the Berlusconi-Gaddafi period marking a significant inflection point. But they have continued in the postGaddafi era, with Italy providing key logistic, financial, political, and operative support
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