Paolo Biondi
Photo credit: Gzen92, via Wikimedia
Commons
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Abstract
The June 2025 S.S. and Others
v. Italy judgment marked a missed opportunity—and a cautionary tale.
Although the applicants advanced a legally coherent theory grounded in SAR,
SOLAS, UNCLOS, and Strasbourg precedent, their case depended on a weak factual
matrix. As a result, the ECtHR declined jurisdiction. However, shortly before,
an analogous incident occurred where Rome MRCC expressly instructed Libya to
intercept—while sidelining Sea‑Watch. This scenario presented stronger grounds
for Strasbourg jurisdiction as Rome’s decision directly determined which vessel
rescued (or rejected) migrants, causing their return. Such instructions, with
knowledge of their likely outcome, implicate in a more clear-cut case Italy in
Libya-run refoulement. Strategically, the lesson is clear, doctrine requires
vehicles. The wrong case risks irrelevance. In border externalisation
litigation, doctrinal ambition must be rooted in unambiguous control and
causation.
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I am grateful to Prof. Steve
Peers, Royal Holloway, University of London and Dr. Miles Jackson, University
of Oxford for their insightful comments on an earlier draft of this blog post.
On 12 June 2025, the European
Court of Human Rights (ECtHR) delivered its much-anticipated decision in S.S.
and Others v. Italy (henceforth S.S.), declaring the application
inadmissible. The case had raised fundamental questions about the
responsibility of European States in orchestrating or outsourcing maritime
interceptions to third countries. More broadly, it tested the outer limits of
extraterritorial jurisdiction under Article 1 of the European Convention on
Human Rights (ECHR) in the context of so-called “pullback” operations to Libya.
Much of the academic (here
and here)
and advocacy community has responded with disappointment. Yet, I believe this
case offers a unique opportunity for reflection on whether this particular case
was fit for purpose. That is, whether the litigation strategy—however
sophisticated doctrinally—aligned with the Court’s existing standards and
practices for establishing jurisdiction.
In this piece, I argue that S.S.
may have had sound legal arguments but the wrong case. The judgment reflects,
at least in part, a mismatch between an ambitious theory of control and a fact
pattern too attenuated to support the weight placed on it. This matters not
only for assessing S.S., but also for the design of future cases seeking
to challenge externalised border controls.
The Legal Frame: Jurisdiction
under Article 1 ECHR
The applicants in S.S.
were twelve survivors of a fatal 2017 maritime incident involving a migrant
boat in distress off the Libyan coast. On 6 November 2017, the Rome Maritime
Rescue Coordination Centre (MRCC) received a distress call from the vessel. It
subsequently shared the coordinates with vessels in the area, including the
Libyan Coastguard vessel Ras Jadir, which assumed command of the operation.
While the NGO Sea-Watch 3 ultimately rescued 59 persons and brought them to
Italy, 47 others were intercepted and returned to Libya. At least 20 people
died. The applicants included ten survivors who were brought to Italy and two
who were forcibly returned to Libya, where they allegedly suffered
ill-treatment in detention (See events reconstruction
by Forensic Architecture).
The core question before the
Court was whether Italy’s involvement in the rescue coordination—particularly
its initial coordination of the Search and Rescue (SAR) case—was sufficient to
establish jurisdiction ratione personae under Article 1 ECHR. The Court held
that it was not.
Recalling its well-established
position that the Convention applies primarily within the territory of the
Contracting States, the Court reiterated the exceptional nature of
extraterritorial jurisdiction (Banković
and Others v. Belgium, § 61; Al-Skeini
and Others v. the United Kingdom, § 132). The two main bases recognised
in the case law remain: (1) effective control over territory and (2) authority
and control over individuals (Medvedyev
and Others v. France, § 67; Hirsi
Jamaa and Others v. Italy, § 74). The Court explicitly declined to rely
on the two additional grounds acknowledged in M.N.
and Others v. Belgium—namely, the exercise of public powers abroad and
the establishment of procedural jurisdiction through investigative or
operational obligations (see S.S., § 80, departing from M.N., §§
104–107). It also implicitly reaffirmed M.N.’s rejection of a broader
“cause-and-effect” theory of jurisdiction, according to which a State’s
decisions with extraterritorial consequences might suffice to trigger Article 1
jurisdiction (see M.N., §§ 113–124).
In S.S., the Court found
that Italy neither exercised territorial control in Libya nor personal control
over the applicants. It focused in particular on the autonomy of the Libyan
Coastguard: the Ras Jadir acted independently and did not respond to requests
from other vessels or from an Italian navy helicopter to coordinate rescue
efforts (§§ 100–102). The applicants’ contention that Italy’s initiation of SAR
procedures and instruction to Libya amounted to a form of control was dismissed
as unsupported by the Court’s case law (§ 104).
The Core Problem: A Weak
Factual Matrix
The legal theory advanced by the
applicants was not implausible. Drawing on Hirsi Jamaa, Al-Skeini,
and Güzelyurtlu
and Others v. Cyprus and Turkey, the case sought to extend jurisdiction
to what might be termed “functional control”—a form of indirect authority exercised
through coordination, operational influence, and outsourcing. It invited the
Court to engage with the reality of modern border governance, one where
responsibility is fragmented and delegated, yet consequences remain deadly.
However, the factual platform on
which this theory rested was thin. Most of the applicants were rescued by
Sea-Watch and disembarked in Italy. Only two were subjected to return to Libya.
Even for these individuals, the direct link between Italian conduct and the
harm suffered was difficult to trace. There was no physical custody, no
boarding of an Italian vessel, and no clear-cut operational command over the
rescuing actors.
Moreover, the Court’s
decision-making reflects a deep concern for preserving its doctrinal boundary
lines. By declining to accept SAR coordination as a basis for jurisdiction, the
Court implicitly reaffirmed a preference for factual control over persons, not
merely over procedures or outcomes. As it stated, “the mere fact that the
search and rescue procedure was initiated by the Rome MRCC cannot have resulted
in bringing the applicants under the jurisdiction of the Italian State” (S.S.,
§ 106). This formalism was foreseeable, given that an alternative outcome could
result even in more reticence to coordinate SAR operations in the Mediterranean
Sea.
A Stronger Case Was Possible
A more promising case took place
months before, again involving Sea-Watch. In that later incident,
the Sea-Watch 3 vessel on 10 May 2017 was first to arrive at the distress scene
and was better equipped to carry out the rescue and to be the on-site
coordinator. However, the Rome MRCC allegedly instructed the Libyan Coastguard
to assume “on-scene command” while instructing the NGO to remain on stand-by.
Following this, the Ras Jadir carried out the interception and returned the
individuals to Libya.
From a jurisdictional
perspective, this scenario could be significantly stronger. First, there is
clear operational decision-making by Italian authorities that directly
determined the outcome. Unlike S.S., where Italy informed all vessels
and watched the case unfold while leaving it open to who would intervene not managing
to keep under control the Libyan vessels involved, here Italy made the
intentional and decisive choice of who would perform the rescue and who would
not.
Second, there was a safer
alternative actively excluded: Sea-Watch was on site and willing to perform the
rescue and disembarkation in a place of safety. The Italian instruction,
allegedly, effectively foreclosed a lawful and rights-respecting option,
leading to a foreseeable violation of Article 3 ECHR.
Third, the concept of
jurisdiction over persons can be more easily satisfied here. As in Hirsi
Jamaa, where control over persons was exercised on the high seas by physically
transferring migrants to Libyan authorities, this later case involved a chain
of operational command (transfer of competence) that links Italy’s decision to
the individuals’ fate. I have already argued
at that time that this form of indirect operational control—particularly when
paired with Italy’s logistical and technical support to the Libyan Coastguard
(which is much less relevant)—supports a finding of jurisdiction and even
complicity under international law. Gauci,
in a similar vein, has underlined that when a State issues instructions to
third-country agents with full knowledge of foreseeable consequences, a
jurisdictional link should be inferred, if not presumed.
If events were confirmed, this
incident did differ materially from S.S. in one key respect, the degree of control exercised by Italian authorities. The
Rome MRCC gave binding (not mere initial coordination) orders and handed over
the case and people to the Libyans. At the same time, the MRCC had a better
option (Sea-Watch) and the latter was more in line with standard SAR rules as
Sea-Watch arrived first and was better equipped. The Libyan crew acted on these
orders, and the outcome (return to Libya) was the direct result of decisions
taken by Italian authorities. Sea-Watch this time was not left to decide
whether to act or not but instead put on stand-by. Thus, a jurisdictional link
ratione personae could arguably be established under Article 1 ECHR, following
the reasoning of Hirsi Jamaa (exercised continuous and exclusive
functional control) and even Güzelyurtlu on extraterritorial procedural
obligations (the failure to act appropriately in the presence of options that
prevents the realisation of Convention rights).
While S.S. invited the
Court to make a doctrinal giant leap, this other case would have allowed it to
apply existing doctrine to a novel but concrete scenario without the need even
of using the complex legal arguments related to Italy’s material assistance and
cooperation with Libya that distracted the Court from the core facts of the
case.
Strategic Litigation and the
Importance of the Right Vehicle
Strategic litigation often seeks
to provoke legal development by advancing compelling cases that expose systemic
injustices. But as the ECtHR’s decision in S.S. shows, doctrinal
innovation is unlikely to occur unless supported by a compelling and carefully
selected case. This raises important ethical considerations: while cause
lawyers and civil society organisations may be driven by broader goals of legal
change, they must ensure that the individual applicants are not treated merely
as vehicles for test cases—particularly where the factual matrix is weak, the
personal costs are high, and a negative ruling may entrench restrictive
doctrines. In some situations, it may be ethically preferable not to bring a
claim with limited chances of success, even if it aligns with a broader
strategy, out of respect for the claimants’ rights, expectations, and
wellbeing.
Besides the choice of case, the S.S.
arguments appears to have overfocused on abstract structural control (Italy’s
coordination role, SAR authority, NAURAS), rather than clear factual chains of
causation that could demonstrate how Italy’s decisions determined the
applicants’ fate. The strategy leaned heavily on the “public powers” doctrine
and the notion of procedural jurisdiction (from M.N.), which had never
been firmly accepted in Strasbourg jurisprudence. In doing so, it may have
underplayed the more pragmatic narrative: that Italy chose to allow Libya to
act in its stead in that specific moment, despite having a safer alternative
(Sea-Watch). In hindsight, the case in S.S. also suffered from overreliance
on structural arguments (e.g. Italy’s funding, training, and equipping of
Libya’s Coastguard) while under developing more important individualised
factual narratives demonstrating Italy’s control over the applicants, and an
ambitious framing that leaned heavily on underdeveloped doctrines like
procedural jurisdiction, which the Court has historically been reluctant to
accept outside of investigative contexts (H.F.
and Others v. France, § 195).
The inclusion of copious material
from UN agencies, International Maritime Organisation (IMO), Medicines Sans
Frontiers (MSF), and Forensic Oceanography was impressive in breadth, but
possibly overwhelmed the Court without connecting every piece back to personal
jurisdiction over the applicants. The applicants’ case risked being
“over-lawyered”—strong on structural critique, but weaker on the concrete “why
this engages jurisdiction here and now”.
This does not diminish the value
of the case as advocacy. But for Strasbourg litigation—particularly in the
sensitive domain of migration control—the Court has shown itself to be
doctrinally cautious and highly fact-dependent. To trigger jurisdiction under
Article 1, applicants must be able to show that the respondent State exercised
direct, operational control over them in a way that materially affected their
rights.
Beyond Strasbourg: Other Legal
Avenues
The Court in S.S. briefly
acknowledged that other international legal frameworks may govern rescue
coordination and refoulement at sea (S.S., § 87). These include
obligations under the International Convention for the Safety of Life at Sea
(SOLAS) and the United Nations Convention on the Law of the Sea (UNCLOS), and
customary international law. The limitations of Article 1 ECHR jurisdiction in
this context may signal the need to litigate such “outsourced” responsibility
in other fora. One pending example is Case
T-136/23 – Sea-Watch v Frontex before the Court of Justice of the European
Union (CJEU), which challenges the EU agency’s alleged role in facilitating
interceptions by the Libyan Coastguard. There, unlike S.S., applicants invoke
direct documentary evidence of Frontex’s aerial surveillance data being used to
support pullbacks in a systematic way. While the facts of the case are not publicly
disclosed yet, it most likely concerns the case of 30
July 2021 incident, in which a migrant boat was intercepted and returned to
Libya after being detected by a Frontex surveillance drone operating within the
Maltese SAR zone. This alternative litigation strategy—using a different legal
regime and possibly a stronger evidentiary trail—may prove more effective in
establishing responsibility and ensuring accountability. It reinforces the
central theme of this piece: that strategic litigation must align legal
argument, jurisdictional doctrine, and a compelling factual substrate.
Another alternative forum for
litigation is the UN Human Rights Committee (HRC). In fact, through its
decision in A.S.
and Others v. Italy (Communication No. 3042/2017), the Committee
already accepted once a functional understanding of jurisdiction in a
strikingly similar context. The HRC reasoned that Italy had established
jurisdiction when its MRCC received a distress call and continued operational
involvement, had a naval asset in close proximity and had legal obligations
under maritime law and consequently created a “special relationship of
dependency” between the individuals on board and Italian authorities (see A.S.
and Others, paras 7.5–7.8, citing HRC Gen. Comm. 36). They held that this
dependency, coupled with Italy’s operational decision-making, was sufficient to
trigger obligations under the International Covenant on Civil and Political
Rights (ICCPR)—including non-refoulement—despite the absence of physical custody
as per Hirsi.
The ECtHR’s dismissal of such
reasoning in S.S. (see § 80) thus highlights a significant divergence
between ECHR and the International Covenant on Civil and Political Rights
(ICCPR) jurisprudence. That said, I would argue that in A.S. and Others,
the facts reveal a higher degree of control exercised by the Italian
authorities compared to the S.S. case. This underscores the importance of
assessing each case on its own merits, as jurisdictional findings depend on the
specific circumstances and evidence presented and less on more academic
discourse.
These alternative fora underscore
that accountability for outsourced border practices is not foreclosed—only
displaced. While the ECtHR may adopt a narrow interpretation of jurisdiction,
other institutions, such as the EU courts and the Human Rights Committee, have
demonstrated greater openness to recognising functional forms of control. For
strategic litigators, this means diversifying venues and tailoring claims to
the doctrinal terrain of each forum.
Conclusion: A Missed
Opportunity, and a Lesson for the Future
While the S.S. judgment may
be considered disappointing by some, part of the problem lies in the litigation
strategy itself. S.S. is a reminder that strategic litigation must be
strategic. The cause may be just. The legal theory may be sound. The political
climate may be urgent. But if the factual matrix does not lend itself to a
clear jurisdictional finding, the case will falter.
In contrast, other emerging
cases—where the Rome MRCC more directly excludes European rescue actors and
instructs Libyan authorities to intervene—offer a firmer and more
evidentiary-rich basis for establishing jurisdiction. These scenarios may
provide the ECtHR with an opportunity to revisit the issues left unresolved in S.S.,
and to do so through doctrinal continuity rather than rupture. However, it is
important to bear in mind that jurisdictional determinations remain case-specific.
Recognition of functional jurisdiction in one case does not automatically imply
the same outcome in others. That said, courts may be encouraged to draw broader
conclusions—such as identifying a minimum threshold of degree of control
necessary to trigger jurisdiction in such cases—as they did in Hirsi Jamaa.
S.S. also illustrates a
broader truth: when one door closes, others may still be ajar. As the pending
Frontex case and the A.S. and Others v. Italy ruling before the UN Human
Rights Committee show, different legal regimes may be more receptive to the
realities of functional control at sea. Strategic litigation must therefore be
both doctrinally agile and forum-sensitive—matching facts not just to law, but
to the institutions most likely to listen. Yet whatever the forum of choice,
the lesson remains: a sound legal argument must be paired with the right
vehicle. Otherwise, as in S.S., the Court may close a door it was not
yet ready to open.