The case of Hirsi Jamaa and others v. Italy: the Judgment of the European Court of Human Rights and the right to have rights

by Romina Amicolo*

The case of Hirsi Jamaa et al. v. Italy originated in Application No. 27765/09 against the Italian Republic lodged with the European Court of Human Rights, under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven Somali nationals and thirteen Eritrean nationals (the Applicants).

The sentence, which condemned Italy, was pronounced by the Court, sitting as Grand Chamber, on 23 February 2012. This sentence is the recognition that irregular immigrants have the right to have rights. It is indeed with the same theory of human rights to endure in this sentence a transformation (or if you prefer, an ‘evolution’), in its indissoluble and close link to the exercise of jurisdiction and the real enjoyment of the rights.

The expression ‘the right to have rights’ was coined by Hannah Arendt in her reflection ‘on the practice of deportation and the experience of the refugee’ ( W ALTERS W., 1983) . It indicates the ‘political condition of the stateless … who, though deprived of various freedoms, [were] nevertheless still within the political and legal order’. The fate of the ‘new kind of human beings’, who were ‘put in concentration camps by their foes and in internment camps by their friends’
(Arendt 1994), is the same of Hirsi Jamaa and the others applicants: ‘to endure the abstract nakedness of being human and nothing but human (Arendt 1951/1966, 297)’.

The sentence in this case makes painfully clear that ‘the modern discourse’ is unable ‘to live up to its universal aspirations’, as long as there is ‘a close relationship between territoriality, sovereignty and immigration detention’, which the same decision has contributed toward breaking down.
Territoriality, which is perceived by the classical legal theory ‘as a self-evident, natural, and innocent concept for the organization of the global political system’, makes the ‘universalistic aspirations” that support both human rights and citizenship into mere ambitions.( C ORNELISSE G., 2010)

The decision of the Court, that human rights can be ‘divided and tailored’, marks a clear growth away from formalism, nationalism, and neo-liberalism, towards new methodological, political, and economic frontiers. It has indeed radically destabilized ‘the formerly supposed sanctity of national sovereignty, the presumed inviolability of nation-state borders, and the ostensible insulation of
national economies afforded by such boundaries and barriers – or at least, the highly charged geopolitical stakes of their transgression’ ( D E G ENOVA N. and P EUTZ N., 2010).

* 1 st Palermo Human Rights & Democracy Graduate Workshop, 11th –13th November 2015