Effective control of Italy over a shipwrecked vessel leads to an obligation to rescue passengers in line with ICCPR art 6

Facts

The authors, who are migrants seeking asylum, submitted this complaint on behalf of their relatives who died after the vessel that they were on board capsized. On 11 October 2013, a vessel shipwrecked in the Mediterranean Sea, 113 km south of the island of Lampedusa, Italy and 218 km from Malta.

The authors claim that there are no effective remedies available that would enable them to submit their claims to domestic authorities. The authors claim that have submitted their complaints to the Public Prosecutor at the Court of Agrigento, Italy; the Public Prosecutor of the Court of Syracuse, Italy as well as the Red Cross of Malta and Italy – about the Italian and Maltese authorities delayed responses to the distress calls of the vessel that capsized which resulted in the deaths of over 200 people. The authors consider that the Italian and Maltese authorities have failed to initiate appropriate investigations into the events that occurred that day.

The authors argue that the failure to open an investigation into the facts that led to the shipwreck and the subsequent deaths or disappearances of the persons on board of the vessel, meant that they do not have an adequate domestic remedy at their disposal. The authors acknowledge that there could be civil remedies at their disposal, but state that they are not seeking compensatory damages for the tragedy concerned, but that they want those responsible to be prosecuted and punished. Furtherly, they argue that without a proper investigation into the matter, that no domestic civil remedy would be allowed to be sought either way. Finally, the authors believe that due to the scale of the tragedy and their limited economic, cultural, and linguistic means that it would allow a form of flexibility that they would be able to bypass domestic remedies.

The authors do note that the shipwreck occurred in both the national territories of both Italy and Malta, and that the complaint should fall under the jurisdiction of both states for several reasons. Firstly, due to the International Convention on Maritime Search and Rescue, both Italy and Malta would be responsible for the search and rescue maritime area that the vessel was located at. Additionally, Italian authorities were exercising de facto control over the Maltese search and rescue area, as Italy is often the only State that is willing to carry out these operations in the area. Secondly, both the Italian and Maltese authorities were in continuous contact with the vessel and failed to exercise control over the area or the persons in distress. Therefore, by the Italian and Maltese authorities acting negligently in their operations, this resulted in various shortcomings in the search and rescue operation and resulted in over 200 people dying or their disappearance.

The authors note that there is a duty to render assistance to those in distress at sea under various International Rules and Conventions. They claim that due to the State’s negligent acts and omissions in the rescue activities at sea, this was a violation of their rights under Article 6(1) of the Covenant. The authors argue that due to the Italian authorities failing to inform the Maltese authorities in due time, failing to send the coast guard vessels at the first sign of distress and failing to assume responsibility over the sinking vessel – that the Italian authorities delayed the search and rescue missions by 2 hours and could have reached the shipwrecked vessel before the shipwreck even occurred.

This violation of Article 6(1) of the Covenant goes in conjunction with article 2(3) of the Covenant, as the Italian authorities failed to launch an official, independent, and effective investigation into the shipwreck in order to ascertain the facts and to identify and punish those responsible for it. Furthermore, article 7 can be read in conjunction with article 2(3), as the failure to launch a proper investigation resulted in the authors living in anguish over the deaths and disappearances of their loved ones, amounting to inhuman and degrading treatment.

Admissibility

Regarding the admissibility of the case, the Committee refers to its General Comment No.15 (1986) on the position of aliens under the covenant, that the rights to be enjoyed as listed in the Covenant are not limited to the citizens of the State parties but is also available to all individuals – regardless of their nationality or statelessness (such as asylum seekers or migrants). This principle also applies to those that would be under the effective control of the state – regardless how this control was obtained.

This is furtherly displayed in General Comment No.36 (2018) on the right to life, which states that the State party has the right to respect and ensure the rights under article 6 of all persons within their territory and those subject to their jurisdiction – so all those under effective control or who they exercise power over. This includes "persons located outside any territory effectively controlled by the State", including "all individuals located on marine vessels and aircraft registered by them or flying their flag, and of those individuals who find themselves in a situation of distress at sea, in accordance with their international obligations on rescue at sea" (reference is made to the Concluding Observations on Malta CCPR/C/MLT/CO/2).

The Committee further 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 the ship that is flying their flag to proceed with all possible search and rescue operations for persons or vessels in distress. Coordination of search and rescue operation of ships from different States need to be done between neighbouring States, taking into account the various International Rules and Conventions that regulate the regional coordination centres.

In this present case, it is undisputed that the event occurred outside the territory of Italy – but the question that remains is if the persons were under the effective control or power of Italy enough to establish a "jurisdictional link" as argued by the authors. The Italian authorities received communication of the vessel in distress sometime between 11 am and 12:30 pm – to which they only informed Malta of the vessel after 1 pm. During such time, the Italian and Maltese authorities were in constant contact, even though Italy had failed to send through a search and rescue party. Only once Italy had received information that the vessel had capsized, did they then send through their own search and rescue vessels in order to aid the Maltese authorities with the operation.

The Committee considers that "in the particular circumstances of the case, a special relationship of dependency had been established between the individuals on the vessel in distress and Italy". This relationship of dependency was formed due to the fact that the vessel had made initial contact with the Italian authorities, that the State party maintained this contact, the close proximity of the search and rescue vessel to the shipwrecked vessel and the ongoing involvement of the Italian authorities in the rescue mission. Due to this relationship of dependency, certain International Rules and Covenants establish that the State party would have legal obligations towards the persons on the vessel. The decisions made by the State party would directly affect those on the shipwrecked vessel, and "that they were thus subject to Italy’s jurisdiction for the purposes of the Covenant, notwithstanding the fact that they were within the Maltese search and rescue region and thus also subject concurrently to the jurisdiction of Malta" (see A.S., D.I., O.I. and G.D.  v, Malta, CCPR/C/128/D/3043/2017)

Therefore, as this jurisdictional link has been established, and the State party has not objected to the fact that there are no other effective domestic remedies available to the authors in addition to the authors having properly substantiated their claims – the Committee finds this communication admissible.

Merits

The Committee notes that the authors claim that due to the State party’s negligent acts and omissions in the rescue activities at sea, that many of their family members have disappeared or died due to the shipwreck. Yet, the State party claims that in the present case, it was the responsibility of the Maltese rescue centre to launch the search and rescue operations, that the Italian vessel did intervene in the operation before the Maltese authorities requested it and that from then on, the Italian vessel became the focal point of the search and rescue operation.

The Committee recalls that the right to life "includes an obligation on the State party to adopt any appropriate laws or take measures in order to protect life in a reasonable manner", including "reasonable and positive measures", with no disproportionate burden on a State party to fulfil this obligation. Although the authors maintain that the Italian authorities failed to respond in a prompt manner for the search and rescue mission, the Committee takes the stance that the Italian authorities intervened before being requested to, that they had informed the Maltese authorities of the location of the distressed vessel and that the Italian vessel had carried out over 23 different rescue operations on the very same day before responding to the present case.

In addition, the Committee notes that the principal responsibility for the search and rescue operations should "lie with Malta", as they undertook in writing that they would be responsible for such. Even with this, the State party has failed to properly prove as to how or if the Maltese authorities had the direct location of the vessel, why they failed to properly respond to the distress calls, why they assumed that the Maltese authorities would have full responsibility for the search and rescue mission and why there was such a delay of the Italian vessel to aid in the search and rescue operations - even though it was only an hour away from the shipwrecked vessel. Due to all these factors, the Committee finds that the State party has failed to meet its positive obligations in terms of article 6(1) of the Covenant.

In addition to that, the Committee notes that no official, independent, and effective investigation was carried out and this failure constituted a violation of article 6 alone and in conjunction with article 2(3) of the Covenant. The Committee did not examine separately the claim under article 7 of the Covenant.

Recommendations

The State party is obligated, inter alia, to:

• proceed with an independent and effective investigation in a prompt manner and, if found necessary, to prosecute and try those who are responsible for the death and disappearance of the authors’ relatives;
• take all steps necessary to prevent similar violations from occurring in the future.

Deadline for follow-up and implementation : 180 Days : 5 June 2021.

Separate Opinions

Joint Opinion of Committee members Yuval Shany, Christof Heyns and Photini Pazartzis (dissenting)

In this dissenting opinion, the three Committee members do not agree with the majority’s decision regarding the jurisdictional link between Italy and the persons on the vessels. The members stated the Committee failed to distinguish between situations in which the States have the potential to place individuals under effective control or power when outside their territory or when people are in situations that actually place them under effective State control. Only the latter would be able to establish jurisdiction for the purposes of the Optional Protocol.

The three authors consider that it was not proven that Italy had assumed this responsibility or had assumed the responsibility of the search and rescue operation that was legally in Malta’s area in the high seas. Although Italy had made initial contact with the vessel in distress, and they coordinated the search and rescue operations as well as then eventually sent a vessel to the shipwreck – this cannot be used to prove effective power or control over the persons in the shipwreck, when there is already a State that has this responsibility. As previously proven, there were many failures by the Italian search and rescue operations that could lead to international responsibility or criminal charges – but these failures, once again, cannot be used to infer effective power or control over persons to establish jurisdictional links between the State and the persons involved. It is therefore Malta’s primary responsibility to conduct the search and rescue operations in the maritime area and Italy has only a supportive role. They conclude that the communication should have been declared inadmissible.

Individual opinion of Committee member Andreas Zimmermann (dissenting)

This dissenting opinion should be read in conjunction with the dissenting opinion linked to the same case against Malta, involving the same set of facts (129^th Session). It should be reiterated that just because the person found themselves in the search and rescue zone of a given State Party of the Covenant, does not bring that person within the meaning of jurisdiction for the purposes of article 2(1) of the Covenant.

It should be understood that by Italy refusing to send its navy ship to aid the search and rescue operations to save the persons in distress at sea, that this violated its obligations under the rules of the law of the sea – and that this question should have not been discussed amongst the Committee. To the majority’s belief, this case has little legal relevance to article 2(1) of the Covenant. Furthermore, it is problematic that the Committee agrees that the persons in distress were under the concurrent jurisdiction of Italy and Malta – even though they found that the Malta communication was inadmissible.

To this, as the Committee has found a violation of the State party, this leaves Italy in a peculiar situation, as they will now need to pay compensation to the victim’s families, without being the State party that was fully responsible. This also brings in the questions of joint or separate liability.

Individual Opinion of Committee Member David H. Moore (dissenting)

Committee member Moore states that the admissibility determination in the present case presents two key questions. First the State party’s obligations extend to those within their territory and under their jurisdiction. It seems to be that the Committee interpreted this as disjunctive, whereas previous case law sees the Committee interpreting the matter as conjunctive. No one contends that the high seas are within Italy’s jurisdiction – the main question would be if the shipwreck was within Italy’s jurisdiction. Secondly the author considers that the use of other Conventions in the discussion of this communication could cause future uncertainty. Due to this, the Committee should have found the communication as inadmissible.

Individual Opinion of Committee member Gentian Zyberi (concurring)

While agreeing with the decision of the Committee, the author clarifies the jurisdictional link and the legal obligations on the part of the State regarding the search and rescue operations, especially concerning refugees and migrants. This specific case and the specific legal framework demonstrates the shared responsibility amongst states to conduct search and rescue operations, especially those with the responsibility of the search and rescue area but including those that have the residual responsibility and the means to aid.

The jurisdictional link in search and rescue operations is generally based on the legal obligations of States to render assistance to those in distress at sea. The right to life protects those individuals from acts or omissions from states that could cause an unexpected death at the high seas, that the principle of power and control, which implies extraterritorial jurisdiction, was construed to be interpreted in specific circumstances at sea. This obligation creates a due diligence obligation onto States to provide their best efforts when available to aid those in distress at sea. In light of the failed search and rescue operations, the State had the obligation to launch a prompt and effective investigation into what happened and to holds those responsible to account.

Individual opinion of Committee member José Manuel Santos Pais (concurring)

The author agrees with the Committee’s decision in reaching the conclusion that the State party had violated article 6(1) and article 2(3) of the Covenant.

When reassessing the facts, it could be ascertained that the Italian naval authorities failed to act when they were the first rescue centre responsible for coordinating the search and rescue mission and were the first to receive the navigational warning. They consistently failed to provide valuable information to the Maltese authorities and prevented their own vessel (which was the closest vessel to that in distress), from intervening in rescue operations.

Due to this, the persons on the shipwrecked vessel were under the jurisdiction of Italy for purposes of the Covenant. Furthermore, Italy failed to provide convincing reasons as to why they did not provide timely assistance to those in distress. Due to this, charges were brought against officers of the Italian Navy, the Italian Coast guard and the Italian rescue centre (at least 7 officers), for failing to provide assistance and for negligent homicide. Seven years have passed, and the trial before the domestic courts has yet to be completed – demonstrating an excessive delay for effective and prompt justice. The State has failed to explain such a delay.

Individual opinion of Committee member Vasilka Sancin (concurring)

The author fully agrees with the outcome of the communication, and the finding of a violation of article 6, read alone and in conjunction with article 2(3) of the Covenant.

It should however underlined that the tragic event happened at high seas, where according to the law of the sea, neither Malta or Italy may exercise any territorial jurisdiction, other than over the vessels flying the flags or in events envisaged by the United Nations Conventions on the Law of the Sea. According to the Covenant, the principle of applying “power or effective control” in terms of jurisdiction, is intrinsically linked with the right to life. This was emphasized in general comment No.36 – that State parties must respect and protect the lives of individuals who find themselves in distress at sea.

For this reason, the communication should be considered admissible on the basis of the following: (1) Italy had power to act according to all relevant Covenant and their international duties; (2) Italy led victims to believe that they would comply with these duties and (3) that if the duties were done, they could have directly affected the situation. Due to these assumptions, Italy would have had these victims under their effective power or control – which made it necessary for them to comply with their positive obligations. And when Italy failed to protect these lives, a prompt and proper investigation should have been made into the violation of rights.

Individual Opinion of Committee member Hélène Tigroudja (concurring)

The author fully supports the position of the Committee, as this communication addresses "some maritime legal black holes". This made provide substance to a new “right to be rescued at sea”, but unfortunately when assessing the outcome of Malta – the Committee does not follow the same rigorous reasoning. In addition, the author reiterates her concern regarding how the Committee solved the question of extraterritorial jurisdiction exercised by Italy, as there is "a mix between substantive obligations and the exercise of a jurisdictional link by Italy"  and such link is not clearly made.

 

More information: 

ECRE : Failure of Italian authorities to respond promptly to distress calls from sinking vessel

EJIL Talk: Drowning Migrants, the Human Rights Committee, and Extraterritorial Human Rights Obligations

 

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