In a claim of the violation of the right to life after more than 200 die at sea, Committee rules that the authors failed to exhaust the domestic remedies

Facts

The authors of the communication are submitting the communication on their own behalf as well as on the behalf of 13 of their relatives who, on the 11 October 2013, were on board a vessel that shipwrecked in the Mediterranean Sea. This shipwreck happened 113 km south of the Island of Lampedusa, Italy and 218 km from Malta, which caused the death of an estimated 200 people.

The authors allege that the State Party authorities failed to take the appropriate measures to render assistance to their relatives, who were in distress at sea, in violation of their rights under article 6 of the Covenant. The authors also allege that the State authorities failed to carry out an effective investigation into the events of the shipwreck, in violation of Article 6 read in conjunction with article 2(3). Additionally, the authors allege that this was a violation of their rights under article 7 read in conjunction with article 2(3), as the lack of investigation caused and continues to cause them anguish, amounting to inhuman and degrading treatment.  

On the 10 October 2013, the authors relatives arrived in Libya and were transported, in a large group including Syrian refugees, to a fishing vessel with over 400 people. After an accident with another boat, the vessel started to allow large quantities of water to enter into it. Around midnight, the vessel  informed  the emergency operator (an Italian number for emergencies at sea) that the vessel was going to sink and children were aboard. The first call was followed by several others within until 3pm to  the emergency operator and to the Armed Forces of Malta as well as to the Italian Rescue Centre. The Maltese Rescue Forces only located the vessel in their waters around 4pm, then sent a rescue mission at 5pm whereas the Italian Rescue Control sent assistance at about 6pm. Apparently, the Italian Rescue Control did not receive any instructions to rescue the vessel until the vessel had capsized, due to the fact that if they interfered, the Maltese authorities would not have taken responsibility for the vessel or the members aboard. The authorities are unable to ascertain exactly how many people died in the shipwreck, but estimate over 200 people, including 60 children did not survive.

The authors claim that the Italian and Maltese rescue centres tried to pass off the responsibility to save the vessel onto one another, instead of intervening at crucial times. Apparently, the Italian Rescue centre informed the Maltese authorities of the vessel at 1 pm, and gave them the location of assets that would be near to the shipwreck, yet they failed to give a specific location until 3.37pm. Apparently, the one asset close by, the ITS Libra (an Italian Ship), was given instructions to move away from the shipwrecked vessel so that the Maltese authorities would not be able to avoid taking responsibility of the rescue mission. At 4.38 pm, the Maltese Rescue Centre requested the assistance of the ITS Libra, in the rescue operation but the commercial ship received instructions to look at other solutions instead of involving a commercial ship in the rescue operation. It was only at 5.07pm, when the vessel had capsized that the commercial ship was given instructions to intervene and aid the distressed vessel.

The authors submit that this complaint was brought forward, as there was no effective remedy that would be available to them in order for them to address this issue to the domestic authorities. Neither Malta or Italy initiated any form of investigation into the circumstances of the shipwreck and the prosecutor requested that the criminal proceedings to be discontinued.

Finally, the shipwreck occurred outside both national territories of Malta and Italy, thus the complaint falls under the jurisdiction of both Malta and Italy for several reasons. Firstly, both State Parties are parties to the International Convention on Maritime Search and Rescue, 1979. Even though the Maltese authorities were responsible for the search and rescue maritime area, the Italian Authorities were exercising de facto control over the Maltese search and rescue area and they were both in communication with the vessel in distress. The authors argue that there is a causal link between the negligence and failure to act from both State parties and the resulting deaths and disappearances of the victims of the shipwreck. Thus, there is a jurisdictional link between the State Party that receive the calls of distress in having the obligation to provide emergency services.

Thus, the authors reiterated the complaints under article 6 and 7 of the Covenant, read in conjunction with Article 2(3).

Admissibility

The Committee notes that under article 1 of the Optional Protocol that the State Party declares the communication as inadmissible, as the events occurred outside the territorial waters of the State Party. The committee recalls it has the competency to receive and consider communications from individuals subject to the jurisdiction of the State parties, within their territory and to all persons subject to their jurisdiction. That means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State party, even if they aren’t directly situated on the territory of the State party. In addition, as indicated in in general comment No.15 (1986), the positions of aliens under the Covenant, that the enjoyment of Covenant rights are not limited to the citizens of the State Party but all individuals, regardless of their nationality or statelessness (such as refugees or migrant workers) that may find themselves in the territory or subject to the jurisdiction of the State party. This position applies, even when States are operating outside their given territory where such power or effective control over individuals is enforced.

According to paragraph 63 of general comment No.36 (2018) on the right to life, the State party has the obligation to respect and ensure the rights under article 6 of all person within their territory and to all persons subject to their jurisdiction, that is "all persons over whose enjoyment of the right to life it exercises power or effective control" including individuals located on marine vessels and aircraft registered by them or flying their flag, and over those that find themselves in a situation of distress at sea, in accordance with their international obligations on rescue at sea.

Furtherly, the Committee notes that according to article 98 of the United Nations Convention on the Law of the Sea, each State is to require the master of a ship flying its flag to proceed with all possible speed to rescue of persons in distress, if informed of their need of assistance, as far as reasonably can be expected of them. Furthermore, coastal States are encouraged to promote the establishment, operation and maintenance of adequate and effective search and rescue services regarding safety on and over sea and are required to set up mutual regional arrangements. The Committee also refers to the International Convention on Maritime Search and Rescue (1979) and the International Convention for the Safety of Life at Sea (1974) – which include that States should lead coordination search and rescue operations.

In the present case, the Committee notes that is an undisputed fact that the issue concerned happened outside the territories of the State and that the vessel concerned was not flying a Maltese Flag. The question before the Committee is therefore whether the alleged victims could be considered having been under the effective control or power of the State party, even though it happened outside the jurisdiction of the party. The Committee understands that the it is an undisputed fact once more, that the State party formally accepted to assume the coordination of the rescue and search operation of the vessel at distress, therefore exercising effective control over the vessel and the individuals concerned. Due to this, it can be stated that there could potentially be a direct and reasonably foreseeable causal relationship between the State parties acts and omissions and the outcome of the operation. Therefore, the Committee is not precluded in considering this communication according to article 1 of the Optional Protocol.

Secondly, the Committee would need to analyse whether the communication should be considered on the basis of the fact that the authors of the communication have not exhausted domestic remedies available to them. The Committee notes that the State party has argued that there were various domestic remedies available to the authors of the communication and considers that even though domestic remedies can appear to be ineffective and with no prospect of success – that the authors of the communication should have expressed due diligence in this regard and followed the procedures in raising their claims. In this specific context the Committee concludes that the authors failed to raise their claims before any State party judicial or quasi-judicial authority and therefore the communication would need to be considered inadmissible.

Separate Opinions

Individual Opinion of the Committee member Andreas Zimmerman (dissenting)

Although Andreas Zimmerman concurs with the outcome of the complaint, he disagrees that the complaint should be rejected on the basis of the authors failing to exhaust domestic remedies – but that the complaint should not have been considered according to Article 2(1) of the Optional Protocol, that the authors were at the time within the jurisdiction of Malta.

It can be stated as undisputed that the family members of the authors were not at the time within the territorial waters of Malta, nor was the vessel in distress waving a Maltese flag. The only facts that support the claim of the individuals being within the jurisdiction of Malta, would be that the vessel in distress was within the search and rescue zone that Malta has responsibility over under the applicable rules of the law of the sea and that the Maltese authorities has been in radio contact with the vessel in distress and has activated the rescue procedures.

In this context, the Committee turns violations of the United Nations Convention on the Law of the Sea and or the International Convention on Maritime Search and Rescue (1979) and the International Convention for the Safety of Life at the Sea (1974) – which are violations – into violations under the Covenant. By doing this, the Committee might be making a disservice to search and rescue missions at sea, as State parties might become more reluctant in taking such obligations as this might in turn be a violation under the Covenant.

Joint Opinion of Committee Members Arif Bulkan, Duncan laki Muhumuza and Gentian Zyberi (dissenting)

The joint members disagree with the conclusion of the Committee, that the communication is inadmissible given the failure of the State party to investigate ex officio the circumstances of the shipwreck. In addition, they consider the jurisdictional link and impact on the State party’s obligations under article 6(1) of the Covenant.

Search and rescue at sea operations and the jurisdictional link. The obligation of States to cooperate in rescuing people stranded at sea is included in the United Nations Convention on the Law of the Sea and the International Convention on Maritime Search and Rescue (1979) and the International Convention for the Safety of Life at the Sea (1974) – and in the present situation at hand, Italy and Malta share that responsibility, although not in equal measure. Regarding the Covenant, and according to general comment No.36 (2018) on the right to life, the Committee explains that in light of article 2(1), the party has an obligation to respect and ensure the rights under article 6 of all persons within their territory and all persons subject to their jurisdiction, including to protect the lives of all individuals located on vessels and aircraft or those that find themselves in a situation of distress at sea, in accordance with the obligations under international law. Due diligence requires taking reasonable, positive measures that do not impose disproportionate burdens on State parties in response to reasonably foreseeable threats to life. As an obligation of conduct, this would require the State to do their utmost to try to save persons in distress at sea. In the present case, the State party assumed this responsibility and the facts of the case reveal significant shortcomings in this rescue operation that resulted in the drowning death of over 200 people, including 60 children.

Duty to investigate the circumstances around the shipwreck. The authors recall the general comment No.36, the Committee and the obligation of the State parties, when they knew or should have known of potentially unlawful deprivations of life, to investigate and where appropriate, prosecute the perpetrators of such an incident. Despite over 200 people drowning to their death, more than seven years later, the State party has not started any legal proceedings to uncover the exact circumstances of the shipwreck and to hold those responsible accountable. In the present communication, the authors do not seek any compensation or civil remedy for their personal losses but are rather hoping to hold those responsible criminally accountable. When an unnatural death occurs, it is the States duty to investigate the circumstances and prosecute and punish those responsible – independent of any claim of the relatives. Such an obligation is even stronger given the context of the situation, which demonstrated the failures of the state of this obligation. Therefore, this was the responsibility of the state and the authors should not be prejudiced for not having exhausted domestic remedies available to them.

Accordingly, the authors consider the case should not be declared inadmissible. Given the lack of due diligence displayed by the State party authorities in their efforts to rescue the hundreds of people in distress, they would have found a violation of the rights of the authors’ relatives under article 6(1) read in conjunction with article 2(3) of the Covenant.

Individual option of Committee member Hélène Tigroudja (dissenting)

The author disagrees with the majority on the questions of search and rescue operations and the States responsibility.

The authors raised their concerns on the shared responsibility of both Italy and Malta in their efforts in the search and rescue operations. By the Committee splitting this complaint into two different complaints, each directed at a different state, it has completely eluded the question of shared responsibility between the two states. The Committee has missed the opportunity to elaborate on this shared responsibility of cooperation and coordination and to provide clarification regarding paragraph 63 of the general comment No.36 on the right to life, which affirmed the States’ obligations in a situation of distress at sea. Thus, in the event where States could have created a legal vacuum to escape responsibility, the Committee could have utilised this chance in reaffirming this obligation.

The Committee also focused on the fact that the authors failed to exhaust domestic remedies, but due to the significance of the tragedy – Malta could not have ignored this issue. Under these circumstances, Malta had the obligation to investigate ex officio into the incident and the deaths. Thus, the Committee failed to recognise this responsibility of Malta and allowed Malta to argue that the incident happened in the high seas, where they lacked jurisdiction.