by Professor Sir Malcolm Evans & Dr Sofia Galani (University of Bristol)
On 22 April 2021, the University of Bristol Law School hosted a closed meeting on the findings of the Human Rights Committee in A.S., D.I., O.I. and G.D. v Italy. The hosts of the event, Professor Sir Malcolm Evans and Dr Sofia Galani, welcomed academic experts on international human rights law and the law of the sea from UK, European and Australian institutions who reflected on the findings of the Human Rights Committee (the Committee) and discussed the potential impact of its findings on the future of human rights protection at sea. The facts of the complaint, the views of the Committee as well as the dissenting opinions are of great interest and are well worth being read in full. Here, we will only summarise some key points with a view to highlighting the significance of the decision and providing some background into the discussions.
The decision concerned a complaint brought by A.S, a national of Palestine, and D.I., O.I. and G.D., nationals of Syria, on their behalf and on behalf of 13 of their relatives who, on 11 October 2013, were on board a vessel that sank in the Mediterranean Sea (and having been shot at), 113 km south of Lampedusa, Italy and 218 km from Malta, claiming the lives of more than 200 people. The boat was in distress soon after it left Libyan waters and while it was within Malta’s search and rescue (SAR) zone. Those on board the vessel made several distress calls to the Italian authorities and informed them of the location of the vessel, giving precise coordinates. After a number of such calls, the Italian authorities referred these messages to the Maltese authorities but did not take any positive direct action themselves until requested to do so by the Maltese authorities later that day. An Italian navy ship, which was near the boat in distress, did not arrive to the site until it was too late. When, earlier in the day, the Italian authorities first received the distress call, the ITS Libra had been within an hour’s sailing time of the vessel – but rather than be sent immediately to assist, it was allegedly ordered to leave the area. The authors complained that Italy failed to provide assistance to the vessel in distress and to promptly inform Malta of the incident violating as a result articles 6 (1) and 7 read in conjunction with article 2 (3) of the ICCPR.
The Views of the Committee
Given that the incident occurred on the high seas, the Committee had to establish whether the victims were within Italy’s jurisdiction for the purposes of the ICCPR. In doing so, it reiterated that according to para. 63 of its General Comment 36 (2019), ‘a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control’, including ‘of those individuals who find themselves in a situation of distress at sea, in accordance with their international obligations on rescue at sea’. The Committee also took note of article 98 of the 1982 United Nations Convention on the Law of the Sea (LOSC) which requires States to provide assistance to persons in distress and the 1979 International Convention on Maritime Search and Rescue and in the Regulations adopted pursuant to the 1974 International Convention for the Safety of Life at Sea (SOLAS) which requires States to conduct or coordinate rescue operations, giving substance to the article 98 LOSC duties of States. By applying these rules to the facts, the Committee considered 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’ (para 7.8). This relationship comprised of ‘factual elements’, which included the initial contact made by the vessel in distress with the Italian authorities, their ongoing involvement in the rescue operation and the close proximity of the ITS Libra to the vessel in distress as well as because of the general duty of Italy under the law of the sea to provide assistance to those in. Having concluded that, for the reasons given, Italy could be considered as exercising effective control over the victims, the Committee considered whether Italy had acted with due diligence in taking reasonable positive measures in response to foreseeable threats to life (para 8.3). It concluded that Italy had failed to explain the delays in responding to the distress calls, either by promptly informing Malta as the state responsible for coordinating search and rescue operations in the area or by dispatching the ITS Libra (para 8.5). Italy had, therefore, violated article 6 of the ICCPR, read alone and in conjunction with article 2 (3).
The views of the Committee were discussed during our online meeting with an emphasis on four key issues. The first concerned the way in which the Committee applied the ‘functional test’ of jurisdiction as set out in its General Comment to the facts of the case. Arguably, the Committee took a rather expansive approach in finding that Italy exercised jurisdiction over the persons in distress – this being largely because the Italian authorities had been contacted by the vessel, informed of the incident and – crucially – because there was an Italian warship relatively close by at the time. While acknowledging the difficulties faced by the Committee in assessing the dubious acts of Italy, it was generally thought that it went a step too far in finding a jurisdictional link under the ICCPR on the facts of the case.
The Committee considered both factual and legal elements in order to conclude that Italy exercised jurisdiction, but its evaluation does not really ‘fit’ with the existing approaches to extraterritorial jurisdiction (see more here). Several members of the Committee took issue with this approach. Some criticized the majority for failing ‘to distinguish between situations in which States have the potential to place under their effective control individuals who are found outside their territory or areas already subject to their effective control, and situations involving the actual placement of individuals under effective state control’ (See the dissenting opinion of Shany, Heyns & Pazartzis). Others thought that the findings of the Committee on jurisdiction added ‘a layer of uncertainty, and even apprehension, regarding responsibility on the high seas that may hinder, rather than sharpen, the response to future emergencies’ (See Moore’s dissenting opinion). The challenges faced by the Committee in coming up with a test that could do justice in this or similar situations is also highlighted by its approach in an almost identical complaint brought against Malta by the same authors. There, the Committee found that Malta exercised effective control over the victims because it formally assumed responsibility for coordinating the rescue efforts (para. 6.7) – a very different approach – and then went on to reject the complaint against Malta on procedural grounds. The ‘bottom line’ seems to have been that Italy was considered to be exercising jurisdiction over the vessel because it could (and arguably should) have done something to help – but it did not. Indeed, it is almost as if Italy was considered to be exercising effective control because it was not. This is indeed a strange and problematic approach.
Another point that attracted attention during the meeting concerns the interpretation by the Committee of Italy’s obligations under the law of the sea. The discussions highlighted that while it is unquestionable that Italy had a duty to render assistance to the persons in distress under the international law of the sea, the Committee arguably relied too heavily on the law of the sea obligations to justify the application of the ICCPR. Addressing human rights violations at sea often requires the law of the sea and human rights law to ‘meet somewhere in the middle’ and complement each other, but the way these legal frameworks were designed does not always allow this to happen. This issue was also picked up by the dissenters who noted that by failing to distinguish between the rights and duties of States under these very different legal frameworks, there is a risk of conflating distinct legal concepts and duties under international law (see the dissenting opinions of Shany, Heyns and Pazartzis and Zimmermann). This could produce unfortunate or unworkable results: in a nutshell, the entire point of the high seas is that it is an area over which States do not exercise jurisdiction! And everything else in the law of the sea is built around this fundamental premise.
This led to an evaluation of the interplay between the law of the sea and human rights law. Because of the nature of the complaint, the Committee was confronted with the question of how the law of the sea and human rights law interact, but the Committee members chose to either avoid this issue altogether or brought the two legal frameworks together uncritically in a way which doubtless ‘did justice’ on the facts of the case (who would not think Italy’s behaviour was outrageous and reprehensible?) but which is difficult to justify in terms of either the law of the sea or the law of human rights. Our experts recognized and emphasized that the relationship between the law of the sea and human rights law is significant not only in the context of migration, but also in relation to other crucially important issues, such as slavery and trafficking, fisheries conservation and management, the right to a healthy environment, and much else besides. Whilst there is a pressing need for a better understanding of the application of human rights at sea, this should not result in a jurisdictional morass in which no-one knows the extent of their rights and duties.
Going forward, we found it difficult to reach a conclusion on what the impact of the views of the Committee will be on human rights at sea. It was noted that the Committee took an expansive approach to human rights jurisdiction at sea, but their findings concerned the obligations of States to respond to those in distress at sea and this may narrow its relevance in other scenarios. Furthermore, the decision of the Committee is not legally binding, and one might question its potential to shape future decisions or state practice in relation to human rights at sea. The decision, however, certainly highlights the reprehensible practices of some states and their repercussions for persons at sea.
In light of more recent shipwrecks, the decision can stimulate important discussions on the protection of human rights at sea which, in time might enable us to find answers to these questions which remain under researched and find constructive ways to protect all persons whose human rights are violated at sea. In conclusion, this decision shows that, when navigating at sea, you not only need your GPS system, you also still need to have your moral compass.