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.

Implementation

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

Committee’s assessment's 136th session (CCPR/C/136/3):

• (a) Proceed with an independent and effective investigation and, if found necessary, prosecute and try those responsible for the death and disappearance of the authors’ relatives: C;
• (b) Non-repetition: No information.

Committee’s decision: Follow-up dialogue ongoing. The Committee will request a meeting with a representative of the State party during one of its future sessions.

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