Migrant boats on the high seas and their interception through psychologically coercive measures: Is there a case to extraterritorially apply human rights law?

Abstract

During the last few years, States in the Pacific Rim as well as in the Mediterranean have engaged in the interception of migrant boats on the high seas assuming that since these interceptions take place outside their territorial boundaries, they are not governed by human rights law. In their attempts to intercept these boats, in some incidents, these States have employed non-physical, psychologically coercive means, such as warning shots, obliging migrant boats to give up any attempts to continue their journey. This article examines whether the use of such psychologically coercive means to change the boats’ change of route in the absence of initial physical contact between these boats and navy vessels, can constitute instances of effective control establishment and give rise to extraterritorial human rights law application.

Introduction

In the first two decades of this century, there has been a considerable influx of boat migrants. These “boat migrant waves” can be traced geographically mainly to the Pacific Rim, the maritime area between Australia and Indochina, and the Mediterranean. ¹ They have been followed by State attempts to curve these waves through intercepting these boats on the high seas. ² The high seas are specifically chosen as a point of interception because this is a zone lying outside the territorial realms of the intercepting States. This is an effort on the part of these States to relinquish their responsibilities both under human rights law and refugee law as far as the non-refoulement principle is concerned. ³

While such interceptions take place many times through actual seizure of the migrant boats and their towing to the State navy vessels, such physical control is rendered possible only once another non-physical control has taken place beforehand. In many cases it is only after the firing of warning shots or the pointing of a gun that migrant boats, under psychological pressure, ⁴ are compelled to cease their journey, ultimately allowing the State navy vessels to exert physical control over them by boarding or towing them and leading them to the intercepting State’s destination of will. The firing of warning shots or the pointing of guns and canons towards migrant boats, constitutes psychological measures to the extent that they are not intended to bring bodily harm. Contrary to shooting bullets directly aimed at migrants, or other measures which have the potential to inflict wounds on the migrants’ person, the aforementioned pointed-guns or warning shots practice cannot by definition lead to physical injuries. Any repercussions are only psychological. ⁵ With States intimidating the migrants and the boats’ crew, the latter are compelled to heed to State directions and re-arrange their journey according to the States’ will. In that sense, the migrant boats’ fate is sealed not once they fall under the physical control of State authorities, but already once, compelled by the navy vessels, these boats feel obliged to comply with the non-physical, psychologically coercive intimidation measures States exert.

The current article explores whether the exercise of such non-physical but rather psychologically coercive measures on the high seas, that is, outside the intercepting States’ national territory, can give rise to the extraterritorial application of human rights law, which could result in States being held accountable for any policies that are deemed a violation of migrants’ rights. In case-law, extraterritorial application of human rights law is conditioned on the existence of effective control. ⁶ In cases of physical control, it is easier to demonstrate how such control directly affects a person’s freedom of choice and movement. Psychologically coercive measures, however, do not necessitate the existence of a physical grip and makes it more difficult to prove that the exerted control was also “effective”.

Along these lines, the current article explores how the use of psychologically coercive means can fall within the effective control framework primarily established by the European Court of Human Rights (ECtHR). In this article, the term “migrants” will be used to describe the people on board of these boats without excluding the possibility that some or most of them are also entitled to refugee status. Furthermore, the potential impact of psychologically coercive measures by States, such as the firing of warning shots or the command for these boats to sail back, is presumed when the people on board the migrant boats no longer continue their journey. Since the existence of State control is examined on account of whether the State could exert a power on or have a ‘grasp’ over the fate of particular persons or group of persons, as required by international human rights bodies, ⁷ the question of whether such a control can be asserted in the absence of physical measures, is examined in a result-basis mode, based on the fact that these boats head back and do not continue their journey to the country of destination.

The article will proceed as in the following order: the next section places the exercise of psychologically coercive measures against migrant boats inside a broader policy exerted often by States against prospective refugees and their will to settle in a State. Understanding the motives and policy implications of the phenomenon, this article then discusses whether human rights law can apply on the high seas and whether such State interceptions can give rise to effective control claims.

Psychologically coercive measures against migrant boats as part of the wider refugee deterrent policy framework

The question of whether psychologically coercive measures can establish effective control must be seen as part of a wider framework of policies States have in place to deter potential migrants or refugees from reaching their shores. These measures include, for example, the seizure or confiscation of these boats. Such seizures, however, are not universally endorsed in legal texts and raise certain issues regarding violations of other rights, such as the right to property. ⁸ Moreover, as noted, ⁹ States in Europe increasingly resort to ‘contactless policies’ of dealing with the migrant boats in the Mediterranean. These States have employed measures that promote, for example, offshore patrolling and transferring the persons on board to third countries with the ultimate aim of avoiding contact on European soil.

In that sense, to the extent that no physical contact with the intercepted boats is a priori established, States- based on the scarce analysis that exists so far on the legal repercussions of psychologically inducing measures- aspire to evade altogether any claims of human rights law extraterritorial application, claiming that the effective control requirement cannot be established. Along these lines, unless explicitly addressed as an autonomous parameter and not just as the first stage of the ultimate establishment of physical control over these boats, States may feel more tempted in the future to see non- physical, psychologically coercive measures as ‘contactless’ and rely more and more on them in order to conduct interceptions on the high seas on the assumption that such practice does not violate international law.

Moreover, and given that some of the persons aboard these migrant boats may also be eligible for refugee status, the question of the impact any psychologically coercive measures can have, must be seen as part of the wider question of how psychologically deterrent policies are implemented against refugees. In refugee law, much has been written about the psychological pressure exerted not so much on refugees in order not to enter the national territory, but to leave it once they have entered in its realms. Nevertheless, this literature and jurisprudence can serve mutatis mutandis in the legal development also of the first scenario. Prominent scholars have denounced the practice of ‘constructive expulsion’ which while deemed ‘voluntary’, is being achieved through threats and coercion. ¹⁰ Domestic courts and international bodies have taken a similar stance. ¹¹ Thus, US courts have criticised the fact that many Salvadoran asylum seekers were signing ‘voluntary departure’ documents under coercion and threats ¹² ruling that coercion could also stem from the subtle effects of atmosphere and setting. ¹³ In Israel, the country’s Supreme Court equally emphasised that any deterrent policies meant to make refugees/illegal immigrants return to their countries of origin irrespective of the dangers lurking there, were unlawful ¹⁴ and that the absence of free will in the decision of a refugee/immigrant to return to his country of origin, is not demonstrated only in cases formal State instructions are in place but also when the State undertakes measures aimed to exert pressure on these individuals, in order for the latter to take such a decision. ¹⁵ The International Law Association has equally endorsed a Declaration, stating that expulsion may also be asserted in cases where authorities create a climate of fear resulting in panic flight or obstruct return of these people who have accordingly fled. ¹⁶

It could be argued that these non-physical contact measures States undertake on the high seas in order to divert migrant boats from their journey, could be likened to the signs and signals police often uses on land in order to divert traffic or re-direct individuals, prohibiting them from approaching a cordoned area. Whereas in the first case these signals are not interpreted as intimidating by the recipient cars or pedestrians, they are received as such by the migrant boats. The comparison is luring, yet faulty. On land the police do not fire warning shots or point guns to divert traffic and there is a legal ground most often resting on legitimate security premises as to why the public’s access to a public site should be restricted in a particular moment. On the other hand, in the case of the migrant boats, the call for them to alter their journey route means that the possibility is denied from these migrants to reach the shores of a developed, democratic country and file their asylum requests there, as ordained by international law. Put more plainly, whereas the police diversion or restriction measures help enforce the law and public order, the high seas interceptions do not come to enforce but rather negate the rule of law and thus cannot be seen as enforcement measures. Once psychological pressure is exerted, the State is equally deemed to be shaping the refugees’ fate and thus exercising effective control over them through psychologically coercive means. This point is vital for the continuation of the discussion undertaken in this article.

The applicability of human rights law on the high seas

The applicability of human rights law on the high seas is a question which largely resembles the debate that took place particularly in the past decade over legal black holes and the applicability of human rights law in places like Guantanamo Bay which, situated in Cuba, lied outside the territorial realms of the U.S. and at the same time, was not also under Cuban control. Boat interceptions on the high seas constitute cases which can give rise to structural maritime black holes. ¹⁷ On these grounds there have been cases where domestic courts have held that human rights law should not apply extraterritorially on the high seas.

In the Sale judgment, for example, concerning Haitian refugees trying to reach the U.S. coastline and intercepted by the U.S. Navy on the high seas, the U.S. Supreme Court held that human rights law does not apply extraterritorially. ¹⁸ Yet, the Sale judgment has been criticised and refuted both by international bodies as well as scholars. ¹⁹ Such criticism was rendered more explicit in the Hirsi Jamaa ECtHR judgment. In this particular case, Italy was found accountable for the interception on the high seas of migrant boats which had embarked from Libya and attempted to reach the Italian coast. The Court refused to accept that human rights law did not apply on the high seas, holding that ‘the special nature of the maritime environment cannot justify an area outside the law. ²⁰

The holding that human rights law applies on the high seas brings into focus the question of under which circumstances it should apply. In other words, the issue is whether and when such extraterritorial application leads also to the assertion of effective control. Such control can be further divided into de facto and de jure. The question thus becomes to which type of control we should put non-physical, psychologically coercive measures. The next section will focus on this, discussing first in detail the de jure and de facto effective control components as they have been coined by the ECtHR jurisprudence. In relation to this, the article will return later to the issue on account of the Hirsi Jamaa judgment. .

The effective control requirement in human rights extra-territorial application: the de facto/de jure, persons/territories dichotomy and its challenging in cases of control over a spatial area

International human rights law instruments apply when an individual resides in a State’s territory or is subject to that State’s jurisdiction. ²¹ On these grounds, judicial and quasi-judicial bodies have held that State jurisdiction extends to all cases where a State has effective control over certain individuals or over a certain area. ²² In that essence, jurisdiction entails a type of control which can be either actual or normative. ²³

The ECtHR, the human rights court which has mainly developed the effective control criterion through its judgments, has largely held that extraterritorial application of human rights can be relevant in two instances. The first involves ‘effective control of an area’. ²⁴ In this case, extraterritorial jurisdiction is largely ‘de jure,’ stemming from the exercise of State authority over this area in general rather than over a particular individual. The second, known as the ‘State-agent model’, crowns the effective control over an individual as the decisive parameter for the assertion of extraterritorial jurisdiction. ²⁵ This de facto effective control is further associated with the existence of a physical, actual grip of a person.

For example, in Öcalan, the ECtHR found Turkey accountable for violating Ocalan’s rights, because Turkish agents exerted physical control over him during his arrest in Kenya and his subsequent transfer to Turkey. ²⁶ The U.N. Human Rights Committee similarly stressed the physical control component. In the case of Burgos, where Uruguayan agents acted extraterritorially and abducted him, the International Covenant on Civil and Political Rights was found to apply. ²⁷

At the same time, when it comes to exerting authority over a territory, the ECtHR held in Ilascu that Russia should be held accountable for human rights violations in Transdniestria, formally a part of Moldova, because of the decisive control it exerted over the region. ²⁸ Similarly, the International Court of Justice held in its Wall Opinion, that both the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR) applied in the West Bank and Gaza, irrespective of Israel’s control over the everyday life of the Palestinians residing in these areas and its ability to fulfil part of these rights. ²⁹

Yet, the de facto control-persons/de jure control-territory classification is not decisive. As noted by Barbara Miltner, the relevance of the jurisdiction ratione loci, meaning jurisdiction based on the space criterion that would equal a de jure control, is diminishing and augmenting importance is being given to jurisdiction ratione personi. ³⁰ This means that it is not just the physical presence of a State in an area that is critical to the question of whether jurisdiction can be asserted but the influence such State presence exerts upon the lives of the individuals residing within, ‘the intensity of control State agents exercise over individuals’ as has been characteristically put. ³¹ This influence is expressed by a type of control that is actual, de facto, rather than a mere de jure one.

This attempt at inserting the de facto, personal control criterion in the extraterritorial human rights application discussion, ³² is palpably seen in the Bankovic case. ³³ In this case, concerning the NATO aerial strikes against former Yugoslavia, the ECtHR held that the NATO Allied Powers could not be held accountable for any human rights violations incurred as a result of their bombing due to the fact that no physical connection could be established between the aircrafts and the victims. ³⁴ Interestingly, in Bankovic, the Court held that the mere presence of a State in an area beyond its own borders did not give rise to human rights accountability- something that the de jure criterion would presume-but that in order for such accountability to be triggered, the State in question must exercise public authority over a territory either as a result of military occupation or through the consent, invitation or acquiesce of the territory’s legitimate government. ³⁵ This consent, invitation or acquiesce parameter has been rightfully criticised by scholars, ³⁶ but in all cases, it demonstrates how according to the Court in Bankovic, the mere de jure criterion is not enough for the establishment of effective control unless the more personal State interaction, the de facto one, is stressed.

The Al Skeini judgment is the further major case where the ECtHR attempted ‘to square Bankovic with the personal model of jurisdiction’. ³⁷ In the particular case, the Court held that the United Kingdom should be held accountable for the deaths of six Iraqi citizens, five of whom in streets or houses in Basra. ³⁸ The Court reached the particular conclusion based on the fact that the United Kingdom exercised public powers in Basra that are normally exercised by sovereign governments. This could be termed a de jure control approach based on control over a territory. Nevertheless, the Court’s approach entailed also a de facto element, to the extent that State accountability was established on account of specific actions related to particular individuals, who -trapped in the streets of the city or inside their houses-found themselves unable to escape death. . In that sense, as scholars have noted, the particular case is an attempt to enter the de facto criterion to the discussion even in cases of State presence over a territory where only the de jure approach would be expected to apply. ³⁹

The de facto rather than the de jure criterion has been applied by the ECtHR also in cases the Strasbourg judges have been called to rule on issues concerning the accountability of Turkey for violations of the Convention during Turkish operations outside the country’s borders. In Issa, the question of the extraterritorial jurisdiction was seen as involving de facto control. ⁴⁰ In Pad based on the de facto criterion, the ECtHR held that Turkey should be held accountable for the death of seven Iranian men that took place during a military operation in the Iranian territory, about 500 meters from the Turkish border. ⁴¹ In Pad, the death of these men occurred through helicopter strikes, whereas in the case of Issa the victims were shot. In both instances, the de facto jurisdiction was asserted for modes of killing that presumed the existence of a distance and not physical contact between the victims and the shooter. In all these cases, the extraterritorial background against which the Convention violations take places serves not as a legal precept able to immediately give rise to de jure judicial claims but rather as a factual, circumstantial background which cannot give rise ipso facto to legal claims against any human rights’ violators but only to the extent that a linkage is proved between the acts of the assumed violators and the damage inflicted to their victims.

This stance has been expressly held in Issa where the ECtHR judges found that there was insufficient evidence to link the presence of the Turkish troops in Iraq to the applicants’ deaths. This has led scholars to argue that in establishing State accountability for actions taking place outside State borders on the territory of non- signatory States to the Convention, the ECtHR requires State responsibility to be firmly proved. ⁴²

Along this line of thought, this is the reason why the Court in Bankovic declined to assert jurisdiction while it did so in Pad. In the first judgment, the argument was not firmly established that it was the individual States participating in the bombing that bore responsibility for the operation’s planning and execution, rather than NATO. This differs from the Pad case as Turkey admitted that Turkish helicopters had fired against the victims. ⁴³ No matter whether this particular line of thought can be condoned due to the leeway it affords to States easily evading responsibility for attacks taking place in the realms of armed conflicts by arguing that it is not them but an international organization or another State that has performed the attack, ⁴⁴ it nevertheless justifiably explains approaches the Court has undertaken in Bankovic and Issa which have been viewed as conflicting. ⁴⁵ Furthermore, the position according to which the de facto control of territory needs some ability of the State to shape the concerned individuals’ fate and course of action, is further demonstrated in the stance undertaken also by human rights quasi-judicial bodies, like the UN Human Rights Committee.

In 2014, the Committee drafted its comments on account of Israel’s periodical report regarding the State’s post-disengagement Gaza obligations. Israel argued that since it had disengaged from Gaza in 2005 it did not have effective control over the region and thus human rights law did not apply. ⁴⁶ While in its Final Report, the Committee reiterated its position that international human rights instruments also applied in the areas occupied by Israel, ⁴⁷ the Committee did not explicitly elaborate on the legal situation that has been created in post-disengagement Gaza, with Israel retaining some responsibilities and competencies vis-à-vis the Strip, yet not controlling matters inside Gaza where Hamas rules. Therefore, Gaza forms a case where any Israeli control-if acquiesced that exists and renders the Strip still occupied- ⁴⁸ is a de jure one, the question being whether such de jure control is enough on its own to incur State liability.

Although the Report does not provide a clear answer, it does note that the Covenant shall apply with regard to all conduct by the State affecting the enjoyment of rights ‘by persons under its jurisdiction regardless of the location’. ⁴⁹ The words “regardless of the location” seem superfluous. The Covenant explicitly stipulates that the rights contained therein are to be protected either in the State’s territory or vis-a-vis individuals who are under the State’s jurisdiction, meaning subject to the State’s jurisdiction, irrespective of the question of whether the territory in which they reside also falls in the State’s effective control and thus in the State’s jurisdiction.

With the addition of the phrase “regardless of the location”, it seems that the Committee wants to exactly cover cases where the State does not exercise effective control over the territory but does exercise such control over persons inside that territory. ⁵⁰ In this context, the effective control required is not a de jure, but a de facto one. ⁵¹ The Committee seems to be saying that although there may be locations that fall outside the State’s territory and its de jure jurisdiction, because effective control is not exercised over them, still even these “locations”, render the State accountable for human rights violations to the extent that the State exerts de facto control, subjugating in practice persons residing in these “locations” to its jurisdiction.

This approach is further elucidated by the remarks of the Committee’s Chairman, who hailed to clarify that as far as Gaza is concerned, Israel should be held accountable for human rights violations to the extent that it has control over the persons and the incidents under scrutiny. ⁵² This stance is also in harmony with recent jurisprudence of bodies like the ECtHR, which tend to demand that an individual is subject to a State’s jurisdiction in order for the latter to be asserted, even in cases where the relevant human rights instruments, such as the European Convention on Human Rights uses the phraseology ‘within the jurisdiction’ instead of ‘subject to the jurisdiction’. ⁵³

The fact that any effective control issues in the case of Gaza, whose legal status after the Israeli disengagement lies in a grey zone and does not form a State nor lies clearly under the jurisdiction of Israel, should be seen through a de facto prism, is further buttressed by the way the ECtHR has come to relate to the effective control criterion on de facto rather than de jure grounds, in cases alleged violations have taken place inside territories not clearly belonging to a particular State. The buffer zone between the Republic of Cyprus and the island’s northern part which is under Turkish occupation, is such an example. In coming to seize jurisdiction on shooting incidents against Greek Cypriots in the buffer zone, the Court did not render importance to the de jure criterion based on the fact that the buffer zone was part of the contracting party’s territory, but rather stressed the de facto criterion which related to the short distance between the shooter and his victim.

Spanning from the case of Andreou ⁵⁴ till these of Solomou ⁵⁵ and Isaak ⁵⁶ , all involving the injuring or killings of Greek Cypriots by Turkish Cypriot forces in the UN buffer zone in Cyprus, the ECHR has favoured a ‘State agent authority’ approach, holding that the injury occurred inside the territory of the Republic of Cyprus, even though these Greek Cypriots were shot in no man’s land. The Court found that during the shooting incident, the short distance between the shooter and the victim could assert Turkish effective control and extraterritorial application of the ECHR. In that sense, what really matters along this jurisprudential line, is not where the incident takes place but whether the impact of State actions can be starkly imprinted and felt.

Control over migrant boats on the high seas through psychologically-coercive measures: practical ramifications of a de facto control case

Once the differences between the de facto and the de jure control are highlighted, the question begs as to which category any exertion of non-physical, psychological measures over migrant boats on the high seas should fall. The question has practical ramifications. If control is de jure, any legal consequences stemming for the intercepting State cannot be attributed to the psychologically-coercive measures. The mere presence of the State navy on the high seas opposite these boats is a form of control over them without the State vessels having to undertake any further action. If on the other hand, in these particular cases the articles focuses upon, State control should be seen as a de facto one, then the question of whether such control is exerted or not depends on whether these psychologically- inducing measures can be deemed as having on their own such gravity in order to give rise to legal consequences.

A first reading would lead to the assumption that State control over these boats should be deemed to be a de jure one. This is the case for two reasons. First, such control refers to a spatial area, the high seas. Secondly, the fact that no physical grip of these boats is involved seems to underline recourse to the de jure control model. The current section would like to address these two points and demonstrate how they are not decisive in leading to the conclusion that control on the high seas should be seen as de jure.

When it comes to the first argument, questions of extraterritorial effective control on the high seas involve questions of State control over an area outside the national borders. Contrary to examples discussed above, however, like these of Al Skeini or even of Gaza, where such State dominion over an area outside its territory was branded as military occupation, the high seas are open to all States and cannot be occupied. ⁵⁷ In that sense, the de jure control criterion cannot apply on the high seas per se as jurisdiction over the waters to the extent that the particular maritime zone is res communes and no State may exercise sovereignty over it. ⁵⁸ Any de jure application examples that pertain to the exercise of jurisdiction refer to jurisdiction on the high seas but not over the high seas. The high seas are merely the location where State jurisdiction happens to apply rather than the constitutive ground giving rise to such an application. For example, Article 110 of UNCLOS refers to the right of every State vessel to visit other vessels suspected for a number of offences, even if the latter vessels are on the high seas. ⁵⁹

Along these lines, the provision does not extend de jure jurisdiction because the high seas are deemed as a space where such jurisdiction can apply ab initio; on the contrary, the fact that State jurisdiction does not apply in principle on the high seas, compels the international lawmaker to extend such jurisdiction in the specific circumstances described in the particular provision in order to make sure that the high seas-exactly because of their non-jurisdiction status- does not end up being an impunity zone . The same logic of preventing the high seas from becoming a legal black hole also pervades the fact that States undertake search and rescue operations on the high seas exercising acts of control over the rescued migrants. These search and rescue operations as a manifestation of State control do not stem from the ability of the State to expand de jure its prescriptive and enforcement jurisdiction in areas like the high seas, ⁶⁰ but rather from a due diligence obligation that binds States to act for the saving of human lives irrespectively of whether the humans under the State’s control happen to be also inside the State’s borders. ⁶¹

This whole nexus of the high seas as the locus of extraterritorial human rights application and the tension between the de jure and the de facto aspects is palpably demonstrated through the Hirsi Jamaa case. In the particular case, concerning the interception on the high seas of migrants who had embarked from Libya and were trying to reach the Italian shores, the ECtHR ruled that national vessels on the high seas should be seen as an extension of the State to the extent that they fly the State’s flag and thus jurisdiction on the high seas should be seen as established on a de jure basis. ⁶² On this account, the Court asserted jurisdiction on a de jure basis because the intercepted migrants on the high seas were boarded on the Italian navy vessels, which were considered an extension of the Italian territory. ⁶³

In the scenario that the current article focuses upon, such boarding does not come at all into question, and the interception is assumed to take place in essence only through the exertion of psychological pressure on the migrant boats’ crew. As a result, effective control does not exist by definition but rather such effective control is linked to the question of whether in essence the migrant boats’ crew will abide by the dictates of the State and cease their journey. Along these lines, based on this criterion, effective control should be seen as a de facto rather than a de jure one.

On similar grounds, the Hirsi Jamaa judgment does not seem to cover the scenario in the question of non-physical coercive measures, requiring like the standard ECtHR jurisprudence discussed above, for de facto control to be established through an actual, physical grasp over a person or object. ⁶⁴ Yet, the Pad case demonstrates that the de facto criterion can be pertinent even in scenarios involving non-physical contact between the State forces and the victims. On this account, the scenarios under which navy vessels approach migrant boats on the high seas and firing warning shots or through gun-pointing threats obliging the migrant boats’ crew to obey their commands, can be likened to the Andreou, Solomou and Isaak precedents discussed above. The high seas zone over which no Sate has sovereignty can be equated to the buffer zone. The interception of migrant boats through navy vessels just approaching them and exerting psychological pressure can be equated to the vicinity element between the shooter and the Cypriot victims which was deemed crucial in order for the ECtHR to hold Turkey accountable for the particular deaths.

Navy vessels do not establish in the first place a physical contact with the intercepted migrant boats, but by being so close to them and addressing them through warning shots or calls, States manage through means of psychological coercion, to de facto effectively control the volition of the people on board to continue with their journey. While the firing of warning shots is a means of stressing to the recipient the need to comply with the authorities’ orders and requests in order to not put his own life in danger, ⁶⁵ in these particular circumstances, such shots are not undertaken as means of life-saving but as an intimidation quest. Along these lines, they can be seen as a form of psychological abuse or coercion, exercised in various contexts by persons exerting power and authority over weaker people who are deemed to be in a subordinate position. ⁶⁶

In that sense, the particular ECtHR jurisprudence, coupled with the approach of other international human rights law bodies, like the U.N. Human Rights Committee in the case of Gaza, demonstrate how application of the de facto extraterritorial human rights law criterion is possible in the case of migrant boat interceptions on the high seas even if the decisive stages for such interception to take place, occur without physical contact between these boats and the intercepting State forces. Along these lines, the de facto control criterion does provide an adequate framework for addressing a situation which the Court in Hirsi Jamaa left out of the discussion.

Viewing migrant boat interception through psychologically coercive means as a form of de facto control attributes to these undertaken psychologically-inducing State measures a catalyst, legal significance for the fact that migrant boats cannot continue their journey as planned and the persons on board to claim unhindered the right to asylum according to the international law precepts. To the extent that these psychologically-coercive measures have a unique legal significance and cannot be seen as just preparatory stages of later State acts that involve physical contact with the migrant boats such as their towing or the boarding of the vessel crew and persons on board the navy ships, they can be seen as separate human rights’ violations establishing equally State accountability the way cases entailing physical contact would do. This raises the question which has to be addressed among international scholars as to whether the State policy of aborting the migrant boats through the creation of panic and fear to the persons on board these boats could constitute a case of psychological torture or cruel and inhumane treatment. ⁶⁷

Conclusion

The migrant boat phenomenon has been in the epicentre of State policy, NGOs’ action, and legal debates over the last few years. While discussions have focused on the physical seizure of these boats on the high seas, the current note aspired to analyse whether States can be found to violate human rights law even by intercepting these boats through non- physical means. This question is highly linked to whether States can be seen as having effective control over migrant boats under the particular scenario. Answering the question in the affirmative, the article proceeded to argue that such control should be seen as a de facto rather than as a de jure one.

Albeit non-physical, it should not be forgotten that psychologically coercive measures such as warning shots impact many times on the migrant’s psyche and violently interrupt his aspirations for a better and more peaceful future. On this account, the article underlined the need for such psychologically coercive measures to be examined as autonomous, separate legal parameters. With the question of whether they can be termed as cruel and inhumane treatment-if not torture-being left open for future research endeavours, the severity of such measures cannot be overlooked. This is important on account of the fact that interceptions of migrant boats on the high seas are likely to continue. Along these lines, the current article wished to place an ‘anchor’ to any State perceptions that human rights law can be circumvented on the high seas when it comes to migrant boats and the State’s international law obligations towards the people on board.