EU externalisation and orchestration in the Central Mediterranean and Libya

Since 2016, the EU and coastal Member States—in particular Italy and Malta—have implemented a joint strategy aimed at stemming migration in the central Mediterranean. This has included, among other mechanisms, the criminalisation of search and rescue NGOs and the progressive substitution of EU and Member States’ rescue assets with those not equipped to perform rescue activities, e.g., aerial assets. The responsibility to perform search and rescue—‘weaponised’ as a form of border control—has thus been outsourced to the so-called Libyan Coast Guard, whose establishment and operation is enabled by the EU’s material, technical, and political support. In parallel, private actors, including merchant vessels, have also been increasingly called upon to perform interceptions—claimed as search and rescue operations—and ordered to perform illegal returns to Libya.

While the ‘externalisation’ of border control has become progressively distanced since the decision in Hirsi Jamaa and Ors v Italy, the EU and Italy continue to have a decisive role in the creation and maintenance of the b/ordering regime in the central Mediterranean. SS and Ors v Italy and SDG v Italy challenge the anachronistic and structurally narrow constructions of jurisdiction under international and European human rights laws through the conceptualisation of alternative forms of jurisdiction—namely ‘functional jurisdiction’ and ‘impact jurisdiction’.