Rescue operations at sea and human rights.
Rescue operations at sea – Human rights jurisdiction – Exhaustion of domestic remedies – Right to life – Inhuman and degrading treatment – Right to an effective remedy – Obligations to cooperate
The UN Human Rights Committee has rendered a decision regarding the application of human rights to rescue operations at sea in response to communications brought against Malta and Italy. The Committee’s move to apply human rights extraterritorially to persons in distress at sea has generally been welcomed, but the precise reasons for doing so raise several questions. While commentaries have primarily focussed on the ‘factual’ or ‘causal’ grounds to prop the so-called extraterritorial ‘human rights jurisdiction’ of Malta and Italy, this contribution focuses on the role of legal obligations arising under the law of the sea in justifying ‘human rights jurisdiction’.
Kristof Gombeer, Fellow of the Research Foundation, Flanders and PhD candidate at the Vrije Universiteit Brussel (Belgium) and Leiden University (The Netherlands), working on maritime security, migration and human rights.
For the first time, a human rights body has evaluated rescue operations at sea in the context of unauthorised migration. On 27 January 2021, the Human Rights Committee adopted two decisions – one concerning Malta, another concerning Italy. The decisions addressed communications brought by the relatives of Palestinian and Syrian nationals who lost their lives during a shipwreck in the Mediterranean Sea.
With regard to Malta, the Committee declared the communication inadmissible. Although the Committee considered the victims to have been within the ‘jurisdiction’ of Malta for the purposes of Article 2 (1) of the International Covenant on Civil and Political Rights (‘ICCPR’ or ‘Covenant’), it determined that they had not exhausted remedies available in Malta. The Committee thus refrained from scrutinising Malta’s obligations under the Covenant. With regard to Italy, however, the Committee found that the individuals came within the scope of application of the Covenant. Under the substantive limb of the right to life (Article 6 ICCPR) the Committee found that Italy failed to meet its due diligence obligations to protect the individuals at sea. Under the procedural limb of the right to life, it ruled that Italy failed to conduct a prompt investigation of the allegations relating to a violation of the right to life.
The two decisions have been accompanied by dissenting and concurring opinions by several independent experts serving in the Committee. They have moreover attracted attention in the wider legal community, with commentaries from Busco, Citroni, Milanovic, and Vella de Fremeaux and Attard (Part I and Part II).
This contribution reports on the facts of the case and the decisions of the Committee, which must be read closely together (A). Secondly, it discusses the Committee’s reasoning with regard to the interaction between human rights law and the law of the sea (B).
A. Facts and Ruling
For obvious reasons, every minute counts for search and rescue operations at sea. Yet time also plays a crucial role in determining which party bears which legal responsibilities at a given moment. The facts in S.A. and Others read as a complex timeline whereby the conduct of the victims and the respondent governments is disputed to the minute.
Clear is that a fishing vessel provided by smugglers departed outside the Libyan port of Zawarah on the 11th of October 2013 at 01:00 in the morning. Onboard: around four hundred individuals, including the relatives of the authors (one Palestinian and several Syrian nationals). 113 km south of Lampedusa and 218 km from Malta, the vessel was allegedly ‘shot at by a boat flying a Berber flag’ and started taking in water.
According to the authors of the communication, the individuals on board the vessel contacted the Italian emergency number at 11:00 in the morning. According to the Italian government, however, it only received the first call around 12:26 at noon. The parties more or less agreed that around 13:00, the Maritime Rescue Coordination Centre of Rome (MRCC) contacted the Rescue Coordination Centre of Malta (RCC), given that the vessel found itself within the Search and Rescue Region (SAR Region) of Malta based on the coordinates provided through the distress call. According to Italy, the MRCC informed the Maltese RCC about a vessel seeking assistance while also providing information on three vessels closest to the distress scene: two commercial vessels and one vessel of the Italian Navy, the Libra. Around 13:17, the individuals aboard the vessel called MRCC Rome again. They were told to contact RCC Malta. At 13:34, MRCC Rome issued a navigational warning to all the vessels in the relevant area. According to the authors, they called the Maltese RCC at 13:34, while according to the Maltese government, the first contact with the vessel occurred at 14:22 when the RCC itself called the vessel to receive an update about their situation. This occurred after MRCC Rome, acting as ‘first RCC’ (see further below, 2.), formally requested RCC Malta by fax to take over the coordination of the distress incident at 14:05.
At 14:35, Malta formally took over the coordination as the RCC responsible for the area in which the distress incident occurred. Yet already before taking over, RCC Malta instructed a Maltese coast guard vessel, the P61, to proceed to the distress scene (14:10), ordered one of its aircraft to conduct a flight over the relevant area (14:25) and issued another navigational warning to all vessels in the area (14:30). According to the Maltese government, it subsequently requested MRCC Rome to confirm the availability of any Italian vessels in the vicinity (14:35). MRCC replied that it had no Italian coast guard vessels available but that an Italian Navy vessel – the Libra – was in the vicinity of the distress scene (15:09). It appears from the facts that a disagreement ensued between MRCC Rome and the Italian Navy command. According to the authors, the Navy command ordered the Libra to move away from the distress scene (15:37). Maltese requests addressed to Italy asking to instruct the Libra to proceed to the distress scene as it was the vessel closest to the scene (16:22) and to put the Libra in direct contact with RCC Malta (16:38) were denied by Italy. The Libra was said to be engaged in surveillance activities from which it could not abscond. Finally, MRCC confirmed to RCC Malta at 16:42 that the Libra was going to proceed to the distress scene. Yet by 16:55, the Libra had still not changed it course in the direction of the scene. Malta’s attempts to contact the Libra directly remained unanswered.
The vessel with 400 people on board capsized around 17:07. The Maltese P61, which had been on its way since 14:10 and a small boat launched from it, reached the scene between 17:45 and 17:50. Both started retrieving individuals from the capsized vessel and the sea and rescued 147 individuals. Ten minutes later, at 18:00, the Libra arrived. It rescued 56 individuals. Two hundred individuals, including 60 children, died.
The relatives of the victims contacted the Maltese Red Cross but did not pursue legal remedies in Malta. Malta itself did not initiate an investigation into the rescue incident. Neither Italy took the initiative to investigate the shipwreck. One of the authors, however, submitted a complaint to the Public Prosecutor of Agrigento, Sicily, while another submitted a complaint to the Prosecutor of Syracuse. The latter opened a criminal procedure against unknown persons, yet the author did not receive any information on its outcome. Following an additional complaint, a third criminal proceeding was initiated in Rome. By the end of 2018, this proceeding was still ongoing.
The authors complained that both Malta and Italy had violated both the substantive and procedural limb of the right to life by failing to take all appropriate steps to safeguard the lives of their relatives and by failing to investigate the incident.
With regard to Malta, they submitted that RCC Malta did not promptly respond to the distress calls and had delayed the request for an intervention by the Italian Navy, knowing that Maltese vessels were unable to provide prompt assistance. Had the Libra received a prompt request, it could have rescued their relatives (Malta decision, § 3.1). They also claimed that Malta had failed to undertake any investigation into the shipwreck, which not only violated the procedural limb of the right to life (§ 3.2) but also caused the authors anguish, amounting to inhuman and degrading treatment (§ 3.3).
With regard to Italy, the authors complained that Italy had violated the substantive obligations pertaining to the right to life by failing to promptly pass the distress calls that the MRCC Rome received to the competent SAR authorities, namely RCC Malta. They also allegedly failed to promptly inform the people on board to contact RCC Malta and had thereby delayed the rescue operation. They also submitted that had the Italian authorities instructed the Libra to proceed to the distress scene, the vessel could have reached the one in distress in one hour and thus well before it capsized (Italy decision, § 3.1). Similar to their complaint directed to Malta, the authors argued that Italy had breached the procedural limb of the right to life and the prohibition of inhuman and degrading treatment by failing to undertake an investigation to identify and punish those responsible for the loss of life (§§ 3.2-3).
While the Committee found that the victims had come within the ‘human rights jurisdiction’ of Malta for the purposes of triggering the applicability of the Covenant, it declared the communication inadmissible because the authors had failed to pursue any legal remedies in Malta. With regard to Italy, the Committee was satisfied that the authors had sufficiently pursued a remedy in the Italian legal system while also affirming that the victims had moreover come within the ‘jurisdiction’ of Italy.
Of particular importance is the Committee’s reasoning with regard to establishing the applicability of the Covenant both with regard to Malta and Italy (‘human rights jurisdiction’).
Malta argued that the shipwreck had occurred on the high seas and not within the Maltese territorial sea. It moreover submitted that rescue operations do not amount to an exercise of jurisdiction. It therefore concluded that there was no jurisdictional link between the victims and Malta that would justify human rights scrutiny under the Covenant (Malta decision, § 4.3). The Committee stated that
it is undisputed that the vessel in distress was located in the SAR area for which the State party authorities undertook responsibility to provide for overall coordination of search and rescue operations, in accordance with section 2.1.9 of the SAR Convention and Regulation 33 of the SOLAS Convention (sic). It further notes that it is undisputed that the State party authorities formally accepted to assume the coordination of the rescue efforts at 2.35 p.m. on the day of the shipwreck. The Committee therefore considers that the State party exercised effective control over the rescue operation, potentially resulting in a direct and reasonably foreseeable causal relationship between the State parties’ acts and omissions and the outcome of the operation (§ 6.7).
Because the distress incident occurred within the Maltese SAR Region, the Committee had to rely on a different argument to establish human rights jurisdiction vis-à-vis Italy. Italy itself argued that ‘the responsibility for protecting the lives onboard a vessel on the high seas belongs to the competent MRCC of the State responsible for the SAR area’ and that in the present case, that responsibility belonged to RCC Malta (Italy decision, § 4.5). It submitted that just because Italy intervened in distress situations in an ‘autonomous and non-obligatory manner’ in another SAR area did not amount to assuming responsibility for that area (§ 4.5). The Committee established the human rights jurisdiction of Italy in the following words, which are worth citing in full:
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 comprised of factual elements – in particular, the initial contact made by the vessel in distress with the MRCC, the close proximity of ITS Libra to the vessel in distress and the ongoing involvement of the MRCC in the rescue operation and – as well as relevant legal obligations incurred by Italy under the international law of the sea, including a duty to respond in a reasonable manner to calls of distress pursuant to SOLAS Regulations and a duty to appropriately cooperate with other states undertaking rescue operations pursuant to the International Convention on Maritime Search and Rescue. As a result, the Committee considers that the individuals on the vessel in distress were directly affected by the decisions taken by the Italian authorities in a manner that was reasonably foreseeable in light of the relevant legal obligations of Italy, 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. The conduct of criminal investigations in Italy regarding the conduct of various naval officers involved in the incident further underscores the potential legal responsibility (albeit under domestic law) of Italian officials vis-à-vis the victims of the incident (§ 7.8, italics added).
According to the Committee, both factual and legal elements justified the establishment of human rights jurisdiction. As the communication was therefore admissible with regard to Italy, the Committee continued to evaluate Italy’s conduct in the light of the right to life.
Under the substantive limb of the right to life, the Committee considered that Italy failed in its due diligence obligations (Italy decision, § 8.5). Even though the responsibility for coordinating SAR in the relevant area lay with Malta, the Committee found that Italy had not promptly answered the distress call, did not correctly communicate with RCC Malta with a view to handing over the coordination of the incident, and failed to explain as to why it had not dispatched the Libra to the incident but instead instructed it to move away from it.
Under the procedural limb of the right to life, the Committee considered that Italy provided ‘no clear explanation for the long duration of the ongoing domestic proceedings, other than a general reference to their complexity.’ Together with the fact that Italy had no timeline for its conclusion in view, the Committee found that it had also failed to meet its obligation to conduct a prompt investigation of alleged violations of the right to life (§ 8.7).
It is the first time that a human rights body evaluates rescue operations at sea in the context of unauthorised migration. Several human rights bodies have, of course, rendered decisions in the context of unauthorised maritime migration: from the Inter-American Commission on Human Rights in 1997 (Haitian Centre for Human Rights et al v the United States of America) and the Committee against Torture in 2008 (JHA v Spain), to the European Court of Human Rights (‘ECtHR’) in 2012 (Hirsi Jamaa et al v Italy). Yet these cases concerned persons already rescued or intercepted and not situations in which persons in distress still needed assistance. The ECtHR has ruled on a maritime rescue operation in the past in Leray et al v France (2001). The incident, however, concerned the shipwreck of a commercial vessel and occurred in a context predating the international legal rescue regime as it is in force today. The Court moreover declared the application inadmissible as far as France’s conduct in light of the substantive limb of the right to life was at issue. To that end, it relied on the findings of the French courts that had ruled that the authorities had made no serious mistakes during the rescue operation. To the extent that the ECtHR has evaluated rescue operations on the merits, it has only done so in the context of a climber accident in mountainous terrain within the territory of a state (Furdík v Slovakia, 2008).
This discussion firstly provides a brief legal analysis under the law of the sea (1). When subsequently discussing the human rights approach to rescue operations, the focus does not lie as much on the competing ‘models’ that circulate for triggering human rights obligations (covered in the academic commentaries mentioned above), but on how the Committee sets up the interaction between human rights law and the international law of the sea (2 and 3).
1. Two types of obligations under the law of the sea
Paolo Busco has remarked that ‘there is little doubt that conduct by Italy and Malta was in breach of fundamental provisions on search and rescue of the United Nations Convention on the Law of the Sea (‘UNCLOS’), the International Convention on Maritime Search and Rescue (‘SAR Convention’) and the Regulations adopted pursuant to the International Convention for the Safety of Life at Sea (‘SOLAS Convention’).’ While this is certainly true with regard to Italy, this is not that clear-cut when it comes to Malta’s conduct. In this regard, one must distinguish between two types of obligations arising under the law of the sea: obligations of assistance and obligations under the search and rescue regime.
Obligations of assistance
Firstly, there is the obligation of every captain at sea – irrespective of whether they are navigating a private or a state vessel – under the domestic law of the flag state to proceed to distress scenes in order to assist those in peril. The obligation of flag states to enshrine this obligation into their domestic law is itself based in Article 98 (1) UNCLOS, Regulation 33 of the SOLAS Convention and in customary international law. Under the law of the sea, a state will violate this obligation when it does not impose an obligation to assist in its domestic law or fails to investigate and enforce violations of this obligation vis-à-vis the captains who fail to assist. Moreover, a state will violate this obligation when state vessels do not assist people in distress. While a flag state may not have the direct control over private vessels necessary to force them to assist people and may thus only be able to sanction them after the facts, authorities ordinarily have the necessary control over their own state assets to ensure interventions at sea. In this regard, Malta did not fail to meet its obligations: once it had information about the distress situation and the approximate location, it dispatched both state aerial and naval assets to the area, even though the naval asset – the P61 – was a few hours away from the incident and other vessels (two commercial ones and the Libra) were known to be closer to the distress scene. Italy, however, clearly violated its obligation because a state vessel over which it had control – the Libra – did not immediately proceed to the distress scene, even though it was – like two other commercial vessels – in the vicinity of the scene.
Obligations under the search and rescue regime
Secondly, the obligation to assist must be distinguished from obligations of coastal states arising under the search and rescue (SAR) regime, a regime that complements and supports the system of obligations of captains. The basis of SAR obligations can be found in Article 98 (2) UNCLOS and in more detail in the SAR Convention.
Under the SAR Convention, each coastal state is responsible for establishing a SAR service within their respective SAR Region. Aside from basic elements like SAR vessels and equipment as well as communication facilities to receive distress calls and coordinate SAR operations, a SAR service must have a legal framework that clarifies which authorities are responsible for search and rescue and which rules apply to their organisation and operations. The IMO has developed manuals, guidelines, and principles on search and rescue, the most important of which are the IAMSAR Manuals and the IMO Guidelines on the Treatment of Persons Rescued at Sea (‘IMO Guidelines’). While these instruments are not legally binding as such, states have to, as far as practicable, follow these minimum standards and guidelines in their implementation of the SAR Convention.
Paramount in every case of distress at sea is to determine which MRCC is responsible under the SAR regime. The starting point is that, in principle, the MRCC state in whose SAR Region an incident occurs is responsible for the coordination of assistance (Section 2.1.1 SAR Convention). As the IMO Guidelines make clear, ‘SAR services throughout the world depend on ships at sea to assist persons in distress. It is impossible to arrange SAR services that depend totally upon dedicated shore-based rescue units to provide timely assistance to all persons in distress at sea’ (Section 5.1). If necessary, however, MRCC states must launch and coordinate of search and rescue operations (Section 2.1.9 SAR Convention). Sometimes, however, the MRCC receiving a distress call is a different one than the one in whose SAR Region the distress situation unfolds. That is what happened in the present case. In those situations, it is up to the so-called ‘first MRCC’ to take initial action – whether that is calling on vessels in the vicinity to assist or to initiate search and rescue. The principally responsible MRCC must then be notified without delay (Section 4.2.1. SAR Convention). Until this MRCC takes over, the ‘first MRCC’ is required to coordinate the situation (Section 4.3 SAR Convention; Section 3.6 IAMSAR Manual, Vol. II). In the instant case, Italy did not immediately inform the Maltese RCC and thus violated the SAR Convention. On the other hand, a coastal state that is de jure responsible, like Malta, for a SAR Region in which an incident occurs cannot be legally scrutinised if it did not have any intelligence of that incident in the first place.
The rationale behind the ‘first MRCC’ system is to ensure that there is always an actor in charge to make sure that assistance is rendered to any person in distress at sea. They can do so firstly by relaying distress information to vessels in the relevant area (the so-called ‘navigational warnings’) and secondly by undertaking and coordinating search and rescue operations where necessary. In the present case, Malta issued a navigational warning as soon as it became formally responsible as a SAR coordinator. It moreover immediately dispatched aerial and naval assets to the area. Given that it may be challenging to identify small vessels at sea depending on the weather conditions and information available, it is thus not necessarily straightforward that Malta violated any of its obligations under the SAR regime. Neither can RCC Malta be blamed for not being able to engage the Italian Libra ship into the operation, as MRCC states have no authority over foreign vessels within their SAR Region. So-called SAR-instructions by an MRCCs to vessels in its SAR Region must indeed be seen as requests for cooperation, reminding the captain of the vessel of their obligations to assist under the legislation of the flag state. Not only are SAR areas no jurisdictional areas, then, but also discrete SAR instructions do not constitute an exercise of ‘jurisdiction’, ‘authority’ or ‘control’ over vessels at sea (Gombeer and Fink).
The judgement for Italy is different: if it indeed received the first distress call at 11:00 as the authors claim, it manifestly failed to respond promptly in terms of issuing a navigational warning, in terms of contacting the Maltese RCC, and in terms of setting up a rescue operation in case no vessels in the vicinity would be able to assist. Particularly problematic is Italy’s failure to rely on a Navy vessel, the Libra, to contribute to the saving of lives of the victims: not only in terms of Italy’s obligation to ensure that captains of a ship flying an Italian flag render assistance at sea (a violation of the law of the sea identified already above), but in terms of Italy’s obligation as an MRCC state to have a proper SAR system in place, which includes a clear legal framework and operational plans when it comes to knowing which SAR units a coastal state can rely on. Pursuant to the IAMSAR Manual, a state can and should integrate different types of SAR capacities into a state’s operational SAR system:
States may wish to designate specific facilities as SRUs. These designated SRUs may be under the direct jurisdiction of the SAR service or other State authorities or may belong to non-Governmental or voluntary organisations. In the latter situation, agreements between the SAR service and these organisations should be developed. SRUs need not be dedicated solely to SAR operations but should have the training and equipment necessary for proficient operations (Section 2.5.3 IAMSAR Manual, Vol. I).
The incident in the present case painfully lays bare the limits of the Italian SAR capacities and a lack of internal coordination within the Italian state apparatus. Italy, in its submissions, mentioned it carried out 23 rescue operations that day (§ 4.2). It can be therefore assumed that all the SAR units under the authority of the Italian coast guard may have been occupied. In this sense, one should consider a state’s limits in being able to provide SAR services. On the other hand, SAR states are required to integrate where necessary units that may perform SAR services but which resort under different governmental authorities, such as in this case, the Italian Navy. As already mentioned above, it is clear that an MRCC has no authority over foreign vessels on the high seas. That an MRCC is unable to request vessels that are part of the state’s own fleet, however, points at inadequacies that a state should internally seek to resolve in to comply with its obligations under the SAR regime. In other words, Italy should have had an internal mechanism in place for an MRCC to be able to rely on Navy assets when this is reasonable and necessary to save lives. In sum, the instructions given to the Libra amounted to not only a violation of the obligation to assist but also a breach of Italy’s obligations under the SAR regime.
When every actor does their part, whether as a captain, as a flag state, or as a coastal state responsible for SAR activities, the law of the sea provides a complementary system for coping with distress incidents. Nearby captains will assist, and flag states will ensure that. Nearby coastal states will coordinate such assistance and will dispatch assets of their own where necessary and possible. That does not mean that every person in distress can be helped (on time), as the sea remains an inhospitable environment and resources are limited. In this sense, the law of the sea is about coordinating collective efforts, not about creating rights – neither for states nor for those in distress. In this sense, the law of the sea is also about relations between flag states and those using their flag and between flag states and coastal states cooperating and coordinating their moves.
While the eventual object of this entire regime certainly is the saving of lives, the state obligations under public international law involved are in principle not geared towards creating direct effects and subjective rights which private individuals may seek to enforce. When interacting with human rights law, however, the Committee’s decisions suggest that interactive effects may take place: firstly, the law of the sea becomes a legal hook to establish ‘human rights jurisdiction’ between states and individuals, where human rights law would ordinarily fail to do so absent state power over the individual in distress (2). Secondly, human rights law, in turn, becomes a legal hook in order to enforce and elaborate state obligations under a different public international law regime, in the present case: the law of the sea (3).
2. Factual and legal elements for establishing human rights jurisdiction
Commentators have devoted careful attention to the issue of ‘human rights jurisdiction’, the concept that functions as a catalyst for triggering relations of duty between state and individual (see references provided in the introduction). The gist is that human rights obligations are justified in relation to individuals when a state exercises power over individuals or over stakes in society relevant to the human rights of individuals. Or when they have the power to do so. In a territorial context, both have been relatively uncontroversial. Yet, in the extraterritorial context, relations of duty have so far only arisen when a state exercises its power, either over individuals directly or over an area in which an individual finds herself. As an additional ground for justifying relations of duty for human rights purposes, both human rights bodies and commentators have pointed at the relevance of specific factual relations between states and individuals, i.e. the producing of effects on the enjoyment of rights or the capacity to produce effects on the enjoyment of rights.
Almost nobody believes Malta or Italy exercised authority or control over the victims of the distress incident. For many lawyers, the discussion ends there (see, for example, the dissenting Individual Opinion of Andres Zimmermann in Malta decision, Annex; dissenting Individual Opinion of Yuval Shany, Christof Heyns and Photini Pazartzis in Italy decision, Annex 1). The Human Rights Committee in the present decisions (Malta decision, § 6.7; Italy decision, § 7.8) and several commentators have thought otherwise. Most attention has gone to the above-mentioned additional justifications of relations of duty when the commentaries on S.A. et al v Malta and v Italy came out: the factual, causal relations between the respondent states and the victims. For example, Milanovic has discussed the ‘undoubtedly functional’ approach the Committee took by focusing on Italy’s ‘capacity to help the vessel in distress’. Similarly, Busco has highlighted the ‘impact model’, while Vella de Fremaux and Attard found it ‘more plausible to focus’ on ‘the causal link’ created through a delay or failure to act following a distress call. These analyses show that only pragmatism can delimit the consequences of ‘functional’, ‘impact’ of ‘effects’ models for justifying relations of duty between states and individuals; that is, for triggering the applicability of human rights instruments. Elements such as ‘proximity’, a relationship of dependency that is ‘special’ (through contact over a phone, for example), or effects of state conduct that are ‘direct’ and ‘reasonably foreseeable’ function as filters to be able to draw a line ‘somewhere’ that somehow seems reasonable. Yet, as Marko Milanovic has pointed out, where can that line be drawn? What is ‘proximate’? A vessel an hour away; two hours, perhaps three but not four? Is dependency not ‘special’ when there has been no contact over the phone?
Less attention has gone to the legal elements in the considerations of the Human Rights Committee for establishing ‘jurisdiction’, namely the two types of obligations arising under the law of the sea (above, B.1.): flag state obligations regarding legislating and enforcing assistance (Malta decision, § 6.6; Italy decision, § 7.6), and coastal state obligations regarding search and rescue (Malta decision, § 6.6 and 6.7; Italy decision, § 7.6). Thus concerning Italy, for instance, the Committee held that the ‘special relationship of dependency’ not only consisted of factual elements but also on ‘relevant legal obligations incurred by Italy under the international law of the sea’ (Italy decision, § 7.8).
SAR Regions do not constitute areas of jurisdiction. Persons present within them, therefore, cannot be considered as falling within the ‘human rights jurisdiction’ of the relevant coastal state. That much everyone seems to agree on (see the academic commentaries referred to above). As submitted above (B. 1.), specific actions related to search and rescue also do not amount to jurisdiction, neither over persons, nor over vessels requested to assist.
Arguably, jurisdiction over someone (be it a person in distress or vessels able to assist) is not what the Committee was aiming at when referring to the relevance of legal obligations arising from another regime of public international law such as the law of the sea. What matters, it seems, is that public international law imposes legal obligations on states that are directly relevant to the enjoyment of human rights of persons, not that public international law allows or imposes obligations to exercise ‘jurisdiction’ over persons (out of academic fashion for a while since the focus came to lie on actual power). What is perhaps most remarkable about the Committee’s decisions, then, is not how ‘low’ the threshold has become in terms of factual relations (a shift from power over persons to the power to do something or to affect someone causally), which is undoubtedly a critical issue of its own, but that obligations under other treaty regimes are considered as relevant elements for establishing relations of duty for human rights purposes. State obligations under international law – even when ordinarily perceived as having not directly to do with creating subjective rights or power over individuals – may thus come to function as bases for justifying relations of duty vis-à-vis individuals for human rights purposes if they have a bearing on the enjoyment of rights by individuals.
The repercussion of setting up such an interaction between human rights law and other treaty regimes of public international law would be to widen the bases for establishing ‘human rights jurisdiction’ significantly; whether it concerns state obligations under international humanitarian law, international and transnational criminal law, or environmental law to name a few. In the present case, this move towards international legal obligations as a basis of ‘jurisdiction’ may not seem noticeable, as the issue of the widening of the type of factual relations is much more ‘out there’ in the Committee’s decision and in the academic commentaries it has received. The ‘capacity’ and ‘proximity’ elements seem more decisive in the present case (perhaps rightly so). Yet, the seeds for new jurisprudential developments drawing on this novel use of international legal obligations as de jure bases for establishing ‘human rights jurisdiction’ (not to be confused with using ‘jurisdiction under public international law’, such as flag state jurisdiction, as a de jure basis for establishing ‘human rights jurisdiction’, as argued above) may have been laid nonetheless.
One may ask how wide the gap is between the Human Rights Committee’s decisions and the jurisprudence of other human rights bodies. While the Inter-American Court of Human Rights in a 2017 Advisory Opinion rejected the role of international legal obligations in triggering ‘human rights jurisdiction’ (The Environment and Human Rights, § 88), it has accepted the broadening of relevant factual relations from control to causation to the end (§§ 101 and 104). In all likelihood, the ECtHR will not embrace a broadening of factual relations to justify relations of duty (‘jurisdiction’) for human rights purposes. Thus, the Strasbourg Court has only considered a factual effects model to a minimal extent, namely when the effects produced by state conduct are ‘isolated, specific and proximate’ such as the targeted shooting of persons from a relatively close range. And it has certainly not considered the mere capacity of states to produce such effects as normatively relevant for triggering the Convention. However, the water between the Human Rights Committee’s reliance on legal elements and a growing trend in the Strasbourg case law may not be as deep as one would expect.
Two recent examples involving the procedural limb of the right to life illustrate the point. In Hanan v Germany (2021), the ECtHR considered that
Germany was obliged under customary international humanitarian law to investigate the airstrike at issue, as it concerned the individual criminal responsibility of members of the German armed forces for a potential war crime (§ 137).
That Germany in Hanan had started its own investigation did not suffice for human rights obligations to be triggered vis-à-vis an airstrike that had occurred in Afghanistan. Yet the fact that Germany had an obligation under international law (obligation to investigate) that had a direct bearing on an aspect of the right to life (its procedural limb) created a relation of duty (‘jurisdiction’) under the ECHR, even though Germany never had factual power over the victims (to the degree embraced by the Strasbourg case law) and without having to accept a functional approach to ‘human rights jurisdiction’. In Makuchyan and Minasyan (2020), the ECtHR held that Azerbaijan’s obligation to enforce a prison sentence by virtue of the right to life under the Convention was triggered by Azerbaijan’s obligations under the Council of Europe’s Transfer Convention (§ 50). This accrued, even though the underlying facts in that case (murder in a hotel in Hungary committed by an Azeri national, investigated and prosecuted under the Hungarian criminal justice system before transferring the convicted person to Azerbaijan to sit out the remainder of his prison sentence) never came under the authority or control of Azerbaijan.
In both these cases, the consequences of ‘human rights jurisdiction’ based on legal elements have, however, been limited to obligations under the procedural limb of the right to life. Unlike the Human Rights Committee’s decisions, they have not led the Court to consider substantive obligations: for example, Germany’s role in the airstrike in Afghanistan as such; or Azerbaijan’s hypothetical obligations to prevent the murder in a Hotel in Budapest. For rescue operations and human rights, the question, then, is whether the Strasbourg Court will similarly rely on legal obligations arising under the law of the sea (for instance of flag states to investigate and enforce the obligation to assist of captains under domestic flag state legislation, above B.1.) to embrace – be it a circumscribed – ‘human rights jurisdiction’ accompanied by obligations to investigate under the procedural limb under the right to life.
3. Individuals’ enforcement of state obligations under public international law
The previous section highlighted how the law of the sea could become a legal hook to establish relations of duty between states and individuals (‘jurisdiction’), where human rights law would ordinarily fail to do so absent state power over the individual in distress. This final section notes how, the other way around, human rights law, in turn, can become a legal hook to enforce state obligations under a different public international law regime (the law of the sea) and provides an opportunity to elaborate on certain types of state obligations, such as the obligation to cooperate.
Firstly, where the traditional subjects of international law (states) may sometimes seek enforcement against other states (for instance, on behalf of their nationals or vessels flying their flag) before an adjudicative body like the ICJ, ITLOS or an arbitral tribunal, states lack an incentive to seek enforcement of the two types of obligations discussed (the obligation to legislate and enforce assistance and obligations under the SAR regime) in the context of unauthorised seaborne migration. In the present case, it was indeed unlikely that Malta or Italy, or any other state for that matter, would have taken up the plight of the victims and their relatives and seek to address what went down during the rescue operation. For example, it is unlikely that Malta would have taken the initiative to seek an adjudicative forum to complain about Italy’s conduct in the present case. The ability for individuals to bring in the law of the sea regime via the human rights door, however, means that state obligations under such regimes may become increasingly subjected to the scrutiny of human rights bodies, even though they may express a sense of restraint in that regard.
Secondly, bringing in the scrutiny of the law of the sea obligations via the human rights door allows elaborating on obligations such as the obligations to cooperate (for an analysis of due diligence obligations in the present case, see Vella de Fremeaux and Attard). The Human Rights Committee, in the present case, unfortunately did not go into depth when it comes to how human rights jurisprudence may shed light on obligations of cooperation in the context of rescue operations (see also dissenting Individual Opinion Hélène Tigroudja in the Malta decision, Annex 3). Therefore, one will need to wait for other adjudicative bodies to address the collective dimension so particular to the law of the sea regime governing distress incidents.
C. Suggested Reading
IACmHR, 13 March 1997, Haitian Centre for Human Rights et al v the United States of America Case 10.675.
ECtHR, 16 January 2001, Leray and Others v France App. no. 44617/98.
ECtHR, 20 December 2001, Leray and Others v France App. no. 44617/98.
CAT, 21 November 2008, JHA v Spain Comm. no. 323/2007.
ECtHR, 2 December 2008, Milan Furdík v Slovakia App. no. 42994/05.
ECtHR, 23 February 2012, Hirsi Jamaa and Others v Italy App. No. 27765/09.
IACtHR, 15 November 2017, The Environment and Human Rights OC-23/17.
ECtHR, 26 May 2020, Makuchyan and Minasyan v Azerbaijan and Hungary App. no. 17247/13.
ECtHR, 16 February 2021, Hanan v Germany App. no. 4871/16.
Gombeer, K and Fink, M, ‘Non-Governmental Organisations and Search and Rescue at Sea’ (2018) 4 Maritime Safety and Security Law Journal 1-25.
Milanovic, M, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press 2011).
Raible, L, Human Rights Unbound: A Theory of Extraterritoriality (Oxford University Press 2020).
Shany, Y, ‘Taking universality seriously: functional approach to extraterritoriality in international human rights law’ (2013) 7 (1) Law & Ethics of Human Rights 47-71.
Trevisanut, S, ‘Is there a right to be rescued at sea? A constructive view’ (2014) 4 Questions of International Law 3-15.
Trevisanut, S, ‘Search and Rescue Operations at Sea’ in A Nollkaemper and I Plakokefalos (eds), The Practice of Shared Responsibility in International Law (Cambridge University Press 2017) 426-50.
Tzevelekos, VP and Katselli Proukaki, E, ‘Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)?’ (2017) 86 Nordic Journal of International Law 427-69.
To cite this contribution: K. Gombeer, “Rescue operations at sea and human rights”, Cahiers de l’EDEM, April 2021.
 Compare: Joint Partly Dissenting Opinion of Judges Grozev, Ranzone and Eicke, §21 in ECHR, 16 February 2021, Hanan v Germany App. no. 4871/16 (writing that ‘if a State’s acceptance of an obligation within the UN framework to conduct criminal investigations creates a jurisdictional link for the Court to apply the Convention, then any obligation under international humanitarian law might have the same effect. If not, what is the legal rationale and what are the criteria to distinguish one obligation from the other? As the list of the international obligations potentially engaged is so broad, we are concerned that preserving “jurisdiction” as a tenable concept will become impossible or, at least, will entail a haphazard application of the concept, dependent on unclear legal considerations.’)(own italics).
 Stating in § 88 of the Advisory Opinion that ‘[the] request presented by Colombia suggests the possibility of equating the environmental obligations imposed under these regimes [to prevent, reduce and control pollution] to human rights obligations so that the State’s conduct in the area of application of these regimes is considered an exercise of the State’s jurisdiction under the American Convention. However, … [even] though compliance with environmental obligations may contribute to the protection of human rights, this does not equate to the establishment of a special jurisdiction common to the States parties to those treaties in which it is understood that any action of a State in compliance with the treaty obligations constitutes an exercise of the jurisdiction of that State under the American Convention.’
 Compare: ECHR, 26 May 2020, Makuchyan and Minasyan v Azerbaijan and Hungary App. no. 17247/13§161 (stating that ‘the Court stresses in this context that it does not have authority to review the Contracting Parties’ compliance with instruments other than the European Convention on Human Rights and its Protocols; even if other international treaties may provide it with a source of inspiration it has no jurisdiction to interpret the provisions of such instruments (…). It has no authority, therefore, to determine whether Azerbaijan has complied with its obligations under the Transfer Convention.’).