Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

52 | PRACTITIONERS GUIDE No. 6
territorial reach 47 in a number of distinct situations. This includes cases
where the State exercises effective control of an area outside its borders
(e.g. in the case of military occupation where effective control of an area
can be shown). 48 It also includes situations where agents of the State
acting, either lawfully or unlawfully, outside the State’s territory, exercise
authority or control over an individual—for example, where someone is
held in detention, or is within firing range of the State’s forces in a border
zone. 49 Therefore, a State may have obligations to respect and protect
the rights of persons who have not entered the territory, but who have
otherwise entered areas under the authority and control of the State, or
who have been subject to extra-territorial action (such as detention) by a
State agent who has placed them under the control of that State.
Of particular relevance for migrants is the fact that the State’s jurisdiction
may extend in certain situations to international waters. The Inter-
American Commission on Human Rights (“Inter-American Commission”)
has found that returning asylum-seekers, intercepted on the high seas, to
their country of origin, suffered a violation of their right to seek asylum in
a foreign country, as protected by the American Declarations of the Rights
and Duties of Man (ADRDM) and the American Convention on Human
Rights (ACHR). 50 The Grand Chamber of the European Court of Human
Rights has held that measures of interception of boats, including on the
high seas, attract the jurisdiction of the State implementing the interception.
From the moment of effective control of the boat, all the persons on
it fall within the jurisdiction of the intercepting State, which must secure
and protect their human rights. 51 The same principles apply in the context
of operations of rescue at sea, as will be discussed in Section II.6.
3. Human rights in the entry process
As outlined above, it is a basic principle of human rights law that States’
human rights obligations are owed to all within its jurisdiction, regard-
47 See, Issa and Others v. Turkey, ECtHR, op. cit., fn. 46; Öcalan v. Turkey, ECtHR, GC, Application
No. 46221/99, Judgment of 12 May 2005; Illich Sanchez Ramirez v. France, ECommHR,
Application No. 28780/95, Admissibility Decision, 24 June 1996; Pad and Others v. Turkey,
ECtHR, Application No. 60167/00, Admissibility Decision, 28 June 2007; Isaak and Others v.
Turkey, ECtHR, Application No. 44587/98, Admissibility decision, 28 September 2006; Xhavara
and Others v. Italy and Albania, ECtHR, op. cit., fn. 46; and, Women on Waves cases,
ECtHR, op. cit., fn. 46; Al-Skeini and Others v. United Kingdom, ECtHR, GC, op. cit., fn. 46,
paras. 133–142: Hirsi Jamaa and Others v. Italy, ECtHR, GC, op. cit., fn. 46, paras. 73–82.
48 Loizidou v. Turkey, ECtHR, op. cit., fn. 46; Al-Skeini and Others v. United Kingdom, ECtHR,
GC, op. cit., fn. 46.
49 Solomou and Others v. Turkey, ECtHR, Application No. 36832/97, Judgment of 24 June
2008, paras. 50–51.
50 Haitian Interdictions Case, IACHR, op. cit., fn. 46, paras. 156, 157 and 163.
51 See, Hirsi Jamaa and Others v. Italy, ECtHR, GC, op. cit., fn. 46, paras. 77–82; Medvedyev
and Others v. France, ECtHR, GC, Application No. 3394/03, Judgment of 29 March 2010,
paras. 62–67.