The Right to Life: Italy found by UN in violation of the right to life of Migrants at Sea

Human Rights at Sea Commentary

27 January 2021

London.UK. Yesterday (27 January), the UN Human Rights Committee (HRC), the treaty body responsible for the monitoring of the International Covenant on Civil and Political Rights, found Italy in violation of its obligations under the Covenant in particular in violation of the right to life as provided in Article 6 of the ICCPR read alone, and in conjunction with Article 2 (3), in the context of Search and Rescue (SAR) operations of migrants at sea. According to the HRC, Italy delayed and failed to actively provide rescue to 200 migrants on the high seas.

Human Rights at Sea welcomes the findings of the Committee and hereby provides a short commentary on some important issues raised in this particular case that may pose future challenges in the context of future SAR emergencies.

The Case

The views of the HRC follow the individual communication to the Committee authored by A.D., D.I. O.I and G.D. on behalf of themselves and their relatives (the authors) who were on board a vessel of 200 people that left Libya on 11 October 2013 and which shipwrecked in the Mediterranean Sea on the same day .  The vessel shipwrecked in the designated SAR zone of Malta[1], 113 km South of the island of Lampedusa.

Despite a strong dissenting presence from several members of the HRC and some confusion in the majority’s decision reasoning for the grounds for Italy’s extraterritorial jurisdiction  under the Covenant, and Italy’s violation of substantive obligations for the purposes of finding Italy in violation of the Covenant’s rights, it is an important case coming from the UN treaty body in the context of migrants and human rights at sea.

As Prof Hélène Tigroudja noted in her Individual Opinion (Concurring), the views of the majority is a first attempt by the HRC to address issues of ‘maritime legal black holes ’[2] and provide some further substance of an emerging right to be rescued at sea.[3]

Extraterritorial Jurisdiction: “a special relationship of dependency’ between the individuals and the State Party to the Covenant

The HRC in line with its previous jurisprudence and General Comments No 15 (1986) and 36 (2019) sought to examine whether Italy exercised power or effective control over the people in distress at sea, for the purposes of establishing jurisdiction, in pursuant to Article 2 (1) of the ICCPR.

‘Special Relationship of Dependency’

The Committee referred to for the first time and explicitly limited its finding to the specifics of this case only,[4] to a concept of ‘a special relationship of dependency’, between the people in distress and Italy, arising from the moment the distress call was answered by the Italy’s Search and Rescue Coordination Centre in Rome and onwards.

Further factual elements that the Committee attributed to ‘this special relationship of dependency’ between the migrants and Italy, were the reassurances Italian authorities gave to the persons on board that they would be rescued  (para 7.7.), the presence of an Italian naval vessel in close proximity to the boat in distress and the continuous engagement of the Italian SAR authorities throughout the rescue operation, even after Malta stepped in and officially assumed responsibility for the SAR operation.

These factual elements amounted, according to the HRC, to a ‘special relationship of dependency’ between Italy and the individuals in distress, which according to the Committee was sufficient to trigger the extraterritorial jurisdiction of Italy, for the purposes of the Covenant, and therefore sufficient to engage its legal obligations under the UNCLOS, SAR and the SOLAS Conventions.

As a result of this special relationship of dependency, Italy’s decisions directly affected the individuals on the vessel, in a manner that was reasonably foreseeable (7.8.) and its negligent acts and omissions in the rescue activities (namely the unreasonable delay to response to the distress call and dispatch the Italian naval vessel nearby as well as other SAR assets to the boat’s location prior to Malta’s assumption of responsibility for the rescue), directly resulted in the loss of lives at sea.

Although the HRC resorts to this concept of “special relationship of dependency” for the first time, it remains to be seen whether this concept can reshape states’ responsibilities under international law in the context of maritime search and rescue of migrants and refugees at sea.

The idea of a special relationship of dependency’ arising between the individuals and the State Party to the Covenant under another source of international law, i.e. the law of the sea treaties on SAR and SOLAS, divided members of the Committee, with those dissenting  arguing that this concept stretches too far the application of extraterritorial jurisdiction and the doctrine of effective control, by failing to distinguish ‘between situations in which states have the potential to place under effective control individuals who are found outside their territory or areas of their effective control, from situations involving the actual placement of individuals under effective state control’.[5]

Extraterritorial Jurisdiction

This division in the Commission over the threshold of extraterritorial jurisdiction of a State party to the Covenant over an area designated under international law to be the maritime zone of another State party to the Covenant, exposes the differences in the views of the experts on the shared and concurrent jurisdictional challenges SAR emergencies pose.

The fact that the HRC did not review the individual communication of the authors  on the same facts against Malta, – due to the prior non-exhaustion of domestic proceedings in Malta as one condition of a communication’s admissibility according to the Committee’s Rules of Procedure, is a missed opportunity.  The review of the individual communication against Malta could have added clarity on the scope of each State’s jurisdiction and hence responsibility under the Covenant for violations of the right to life, applied in the context of SAR operations of migrants and refugees at sea.

Finally, in two of the dissenting opinions, one sees the concern over the potential implications this finding will have 0n State parties’ conduct. Could that lead into further ‘uncertainty and even apprehension’ in the words of David Moore,[6] regarding responsibility for upholding the right to life under international law. Could States in future turn a blind eye to distress calls and emergencies, in order to avoid the HRC establishing ‘a special relationship of dependency’ and thus jurisdiction for the rescued people on the high seas?

Human Rights at Sea Position

Human Rights at Sea will continue to advocate and promote the good faith application of international law, through inter alia the wide dissemination and endorsement of the Geneva Declaration on Human Rights at Sea  with an aim to raise global awareness of the abuse of human rights at sea and to mobilise a concerted international effort to put an end to it.  There is a profound need for the concept of ‘Human Rights at Sea’ to be accepted globally and the Geneva Declaration on Human Rights at Seam by reflecting existing and established international law and principles seeks to consolidate this into a lex specialis, an applicable legal regime for human rights protections at sea. [7]

ENDS.

[1] International Maritime Organization (IMO), International Convention on Maritime Search and Rescue, 27 April 1979, 1403 UNTS

[2] I Mann, ‘Maritime Legal Black Holes: Migration and Rightlessness in International Law’  (2018) 29 European Journal of International Law 347 -422.

[3] HRC CCPR/C130/D/3042/2017 Annex 7 Individual Opinion of Hélène Tigroudja (concurring) p 22-23.

[4] CCPR/C130/D/3042/2017, para 7.8.

[5] CCPR/C130/D/3042/2017, Annex 1 Individual Opinion of Yuval Shany, Christop Heyns and Photini Pazartzis (Dissenting)

[6] Annex 4 David H Moore Dissenting.

[7] Irini Papanicolopulu, International Law and the Protection of People at Sea (Oxford University Press 2018). Steven Haines, ‘Developing Human Rights at Sea’ forthcoming in the 2021 35 Ocean Yearbook, available as open access https://www.humanrightsatsea.org/wp-content/uploads/2020/11/Ocean-Yearbook-Haines-Authors-Approved-Manuscript-HRAS-VERSION.pdf