Associate Tenant Andrea Saccucci obtains an historical ruling by the UN Human Rights Committee on Search and Rescue Operations at Sea

By two decisions published on 27 January 2021 in the case S.A. and others v. Italy (communication No. 3042/2017) and S.A. and others v. Malta (communication No. 3043/17), the UN Human Rights Committee established that Italy and Malta shared responsibility in relation to the shipwreck and subsequent drowning of over 200 people (60 of which were children) occurred on 11 October 2013 in the Maltese search and rescue (SAR) waters. The Committee found that the complainants were within the “jurisdiction” of both States at the time of the tragic event and that they were therefore entitled to protection under the International Covenant on Civil and Political Rights (hereinafter ICCPR).

The communication to the Human Rights Committee had been lodged on 19 May 2017 by Professor Andrea Saccucci on behalf of three Syrian nationals and a Palestinian national claiming that Italy and Malta violated the right to life of their relatives who died in the shipwreck and that both States failed to carry out an effective and prompt investigation into the events.

While the complaint against Malta was declared inadmissible due to the failure to exhaust domestic remedies, the Committee considered admissible and upheld on the merits the complaint lodged against Italy, finding that Article 6 § 1 ICCPR (enshrining the right to life) and Article 2 § 3 a) ICCPR (guaranteeing the right to an effective internal remedy) had been breached due to the authorities’ inexcusable delay in responding to the distress call and in the conduct of the subsequent investigations on the event.

It was established that the first contact between the vessel in distress and Maritime Rescue Coordination Centre (MRCC) of Rome was made between 11:00 a.m. and 12:26 p.m., while the Italian navy ship Libra arrived on the scene only at 6:00 p.m., after an unclear and, in any case, ineffective attempt of coordination with the Maltese authorities, which had in the meantime assumed responsibility for the coordination of the rescue operation without, however, being able to provide the necessary assistance. Thus, on the one hand, the Maltese authorities had failed to intervene despite being under a legal obligation to provide assistance in their SAR zone; and, on the other hand, the Italian authorities had unduly delayed the dispatch of their naval asset – which had been requested by the Maltese authorities themselves – despite having a real opportunity to save the migrants’ lives.

These decisions are of paramount importance as the Human Rights Committee stated, for the first time, that States are bound to respect their obligations to protect the right to life also in relation to events taking place outside their territory or territorial waters or vessels, as long as they are in a position to exercise power or effective control (even if merely potential) on a situation threatening human lives at sea.

In fact, although it was undisputed that the shipwreck had occurred in international waters, and that none of the alleged violations had occurred on board of a vessel hoisting an Italian or Maltese flag, the Committee established that the shipwreck victims were under the “jurisdiction” of both States for the purpose of the application of the International Covenant. While in respect of Malta such conclusion was based on the assumption of responsibility for the search and rescue operations triggering the legal obligations under the SAR and SOLAS Conventions, in respect of Italy the Committee relied upon the existence of a “special relationship of dependency (…) between the individuals on the vessel in distress and Italy”.

Specifically, “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”.

Therefore, according to the Committee, 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”.

Italy was thus sentenced by the Committee to make full reparation to the plaintiffs for the violation of their fundamental rights as guaranteed by the Covenant, “bearing in mind the potential responsibility of other States for the same incident” (i.e. Malta’s concurring responsibility), and to take all necessary measures to prevent similar violations from occurring in the future.

Professor Andrea Saccucci has acted as leading counsel in this case with the assistance of Roberta Greco as co-counsel and with the collaboration of the Human Rights & Migration Law Clinic of the University of Turin.