Externalization of border controls and the European Court of Human Rights in light of the decision in the case of S.S. and Others v. Italy

Abstract

This article analyses a tragic case of rescue at sea that occurred a few months after the conclusion of the Italy-Libya Memorandum of 2 February 2017. This agreement provides for a new model of externalisation based on «pull-backs», which are an evolution of «push-backs», i.e. the refoulement adopted by Italy in implementation of the previous 2009 agreement and which were condemned by the European Court of Human Rights in the Hirsi Jamaa and Others v. Italy judgment. In the case of pull-backs, however, we are faced with a case of «refoulement by proxy». After examining the application lodged seven years ago by the survivors of the dramatic rescue operation and critically analysing the decision of inadmissibility on grounds of lack of jurisdiction adopted by the Strasbourg Court in May 2025, the author focuses on a possible alternative interpretation of the notion of jurisdiction and on the implications of the position taken in the case of S.S. and others v. Italy at a particularly difficult time for the protection of migrants’ rights