The Applicability of Human Rights Treaties to Search and Rescue Operations in the High Seas: A Landmark Decision of the UN Human Rights Committee

Human Rights Committee, A.S. and others v. Italy and Malta, communication n. 3043/2017, Decision (Malta, CCPR/C/130/D/3042/2017) and Views (Italy, CCPR/C/128/D/3043/2017) of 27 January 2021

In two interconnected decisions of 27 January 2021, the Human Rights Committee has considered a communication complaining that Italian and Maltese authorities have failed to discharge their obligations to protect life at sea and to investigate promptly an incident of 2013 in the Central Mediterranean Sea, resulting in the drowning of more than 200 migrants. The bulk of the complaint is that both Malta, as the State responsible for the SAR region in which the event took place, and Italy, as the first-alerted state and the one in the best position to provide assistance to the boat in distress, failed to abide by their search and rescue duties under applicable international law, thus violating the right to life of the migrants concerned. While the part of the communication against Malta was declared inadmissible for non-exhaustion of domestic remedies, the Committee found that Italy has violated the communicants’ right to life under Article 6(1) ICCPR, for not acting with the required due diligence in protecting life at sea (para. 8.5), and – in conjunction with article 2(3)(a) –  for depriving the victims of access to an effective remedy, due to the unjustified delays in carrying out a criminal investigation over the incident (para. 8.7).

To reach the above mentioned conclusions, the Committee had to consider if the ICCPR was indeed applicable in the case. Did the shipwrecked migrants fell within the jurisdiction of the two States, under article 2(1) of the ICCPR? This was the most important legal issue raised by the complaint. To this effect, as per the functional approach expounded by the Committee in General Comment n. 36 (2019), the Committee had to ascertain whether each of the two States was exercising “power or effective control” over the victims’ enjoyment of the right to life (para. 63 of the General Comment). The Committee has taken an expansive stance on the application of this criterion and found that the responsibility of both States could be engaged under the ICCPR. To reach this conclusion, it took into consideration both the factual circumstances of the case and the States’ respective legal obligations under the applicable rules of the law of the sea, including the 1982 UN Convention on the law of the Sea, the 1974 SOLAS Convention and the 1979 SAR Convention (see paras 7.6-7.8 of the Views in the case against Italy and paras. 6.6-6.7 of the Decision in the case against Malta). Yet, this conclusion is far from being uncontroversial, as several members of the Committee dissented with the majority on this point (see Annexes 1, 2, and 3 to the Views in the case against Italy and Annex 1 to the Decision in the case against Malta).

In the wake of the unfinished tragedy of migration by sea in the Central Mediterranean, and pending the decision of the European Court of Human Rights in a case raising similar legal issues (S.S. and others v. Italy), the Committee has set a landmark in the legal attempts to hold the European States accountable for the violations of human rights occurring as a result of the mismanagement of migratory flows and their retreat from responsibility for saving lives at sea, as required by international law.

To read the decision concerning Italy, click here.

To read the decision concerning Malta, click here.