‘Between the Devil and Deep-Blue Sea’: Comparing the Extraterritorial Application of the ECHR and the ICCPR in the Protection of Migrants at Sea

The concept of jurisdiction is often said to encapsulate the very essence of human rights “qua normative relationship between rights holders and institutions as dutybearers” (Besson, 2012; 860). Twenty-first century human rights jurisprudence has highlighted one of the most contentious issues in relation to jurisdiction: the limits that human rights place on State behaviour outside national territory. In the context of migration, the extraterritorial application of human rights is a particularly critical concern. Loss of life on the high seas, refoulement at sea, and the striking systematic ineptitude of search and rescue operations by European countries have placed the debate on extraterritoriality at the heart of the human rights discourse on migrants and refugees. This Paper will compare and contrast extraterritoriality at the European Court of Human Rights and the Human Rights Committee (HRCttee), in order to put their jurisprudence into perspective and assess the current state of the law. A functional account of jurisdiction will be supported, whereby the State should protect human rights wherever in the world it operates, and whenever it can reasonably do so. Through a comparative analysis, I will argue that the principles of universality and effectiveness render extraterritorial applicability a necessary doctrine in human rights law. By juxtaposing the ECtHR with the HRCttee, I will illustrate the wide acceptance of extraterritoriality in the migration context, highlight the needs for improvement in future jurisprudence, and justify the functional approach to human rights protection that this Paper advocates.