Introduction

The United Kingdom’s Nationality and Borders Bill, being considered in Parliament at the time of writing, is brim-full of measures to stop people claiming asylum in the UK. There are new maritime enforcement powers that extend Home Office activity beyond UK territory, beyond UK territorial waters, and into foreign waters, and international waters. These powers enable UK Government vessels to stop, board, divert, and detain foreign ships and ships without nationality (i.e. small boats) crossing the English Channel carrying people seeking asylum.

Moreover, as set out in the Bill, arrival in the UK is criminalised, claiming asylum in UK territorial waters is proscribed, the duty of rescue as found in the in the UN Convention on the Law of the Sea (UNLCOS) is removed from the purview of UK Courts when scrutinising the planning of these interdiction operations, and Home Office officials are immunised from liability for criminal prosecution in conducting such operations. So far, so bad. But what of the constraints imposed by human rights obligations?

The European Convention on Human Rights (ECHR) as applied by its supervisory Court in Strasbourg (ECtHR) has a developing jurisprudence on extra-territorial jurisdiction that can lead to a state being held to have violated an ECHR right in respect of the acts and omissions of its actors outside the national territory and outside of national territorial waters. The UK has ratified the ECHR, permits applications to the Court as regards Convention violations, and has given effect to several ECHR rights in the UK via the Human Rights Act 1998.

In addition, the UK has also ratified another general human rights treaty: the UN’s International Covenant on Civil and Political Rights (ICCPR). The UK does not make provision to give the ICCPR effect in domestic law and thus the ICCPR has much lower visibility in domestic political and legal discussions than the ECHR. However, the UK is bound by the ICCPR in international law.

The ICCPR is supervised by the UN’s Human Rights Committee (HRC). As with the ECHR there is a way to bring an application (called an individual communication) as regards violations of protected rights. The UK does not sign up to this individual communication procedure.  But Italy does. And it is in respect of Italy and its operations in the Mediterranean Sea that the HRC has given judgment on extra-territorial jurisdiction in A.S., D.I., O.I. and G.D. v Italy (27 January 2021).

The case has lessons for the UK as it seeks to extend its activities beyond UK territorial waters in the English Channel. Further, just as questions of extra-territorial jurisdiction arise under the ICCPR, so too do they arise under the ECHR. If the approach taken by the HRC to extra-territorial human rights jurisdiction were also to be taken by UK Courts applying the ECHR via the Human Rights Act 1998 or by the ECtHR (on consideration of a petition brought against the UK), in the result, in a given case, the UK may be found to have violated its ECHR commitments even when a conducting maritime enforcement operation in foreign waters or in international waters.

For example, were it to be alleged that the UK had violated human rights protections, such as the right to life, where conducting  a maritime operation outside of UK territorial waters and even and outside of the UK’s search and rescue are in the Channel,  if the same approach to extra-territorial jurisdiction to be taken, the matter could be the subject of legal challenge in UK courts in reliance on the ECHR.

A.S., D.I., O.I. and G.D. v Italy raises important questions about the scope and nature of extra-territorial jurisdiction. Among them is the question as to how a state’s commitments under particular treaties regarding the law of the sea and regarding search and rescue relate to its commitments in respect of international human rights treaties. The dissenting opinions in A.S., D.I., O.I. and G.D. v Italy show the question lacks an answer around which there is a clear consensus. The question and other related questions are likely to be revisited in the ECtHR and the HRC in further cases.

The People Concerned

The authors of the communication A.S., D.I., O.I. and G.D. v Italy were a Palestinian national and Syrian nationals. They acted on their own behalf and of behalf of thirteen of their relatives who, on 11 October 2013, were on board a vessel that was shipwrecked in the Mediterranean Sea, south of Lampedusa, Italy and 218 km from Malta. More than 200 people died.

The Allegation

It was alleged by the authors that Italy’s authorities failed to take appropriate measures to render assistance to people, who were in distress at sea, in violation of their rights under Article 6(1) ICCPR (right to life).

In addition, it was alleged that Italy’s authorities failed to carry out an independent and effective investigation into the events of the shipwreck in order to ascertain the facts and identify and punish those responsible for it, in violation of their relatives’ rights under Article 6(1) ICCPR, read in conjunction with Article 2 (3) ICCPR (right to an effective remedy).

Finally, it was alleged that the authors suffered a violation of their rights under Article 7 ICCPR (prohibition on torture and cruel, inhuman, or degrading treatment or punishment), read in conjunction with Article 2 (3) ICCPR, as the failure to investigate the death or disappearance of their relatives has caused and continues to cause them anguish, amounting to inhuman and degrading treatment.

Some Key Facts

On 11 October 2013, a fishing vessel left Libya. Over 400 people were on board. Water began to enter the vessel. A person on board called the Italian number for emergencies at sea around 11.00 am, explaining that the vessel was going to sink and also informing the emergency operator that there were children on board.

The Maritime Rescue Coordination Centre in Rome (MRCC Rome) stated that it received calls at 12.26 pm, 12.39 pm, and 12.56 pm. In one call, the people on board the vessel were reassured by the Italian authorities that they would be rescued.

When nothing happened, they called the Italian number for emergencies at sea again at 1.17 pm. This time, the operator explained that their vessel was in Malta’s  search and rescue zone and gave them the phone number of the Rescue Coordination Centre of Malta (RCC Malta). Calls were then made from the vessel to the Armed Forces of Malta (AFM).

It was alleged that the AFM did not contact MRCC Rome for assistance until after the vessel had capsized. It was further alleged that an Italian naval ship Libra (which had reached the location around 6 pm) did not receive any instructions to assist the people on board the vessel until after it had capsized and that it was initially ordered to move away from the vessel, as otherwise it was believed that the Malta’s authorities would not have taken responsibility for the rescue.

It was alleged that by failing to promptly inform the Maltese authorities, the Italian authorities delayed the rescue operation by two hours.

Where did the Incident take place?  

It was alleged that both Italy and Malta’s rescue centres tried to pass responsibility for the rescue operation to one another; Italy noting that the vessel was in Malta’s search and rescue area.

The shipwreck occurred outside the territorial waters of both Italy and Malta; it took place in international waters.  However, it took place within Malta’s Search and Rescue area (SAR) as provided for by the International Convention on Maritime Search and Rescue (SAR Convention).

It was alleged that the vessel fell under Malta’s jurisdiction as Maltese authorities were responsible for the SAR maritime area in which the vessel was located.

However, it was also alleged that the vessel fell under Italian jurisdiction as the Italian authorities were exercising de facto control over the Maltese SAR area, on the basis that Italy has often been the only state willing and able to carry out rescue operations in the area, and that both states were in continuous contact with the vessel in distress and activated rescue procedures.

The Law of the Sea – The Duty of Rescue

The duty to render assistance to those in distress at sea is an established international rule, examples of which are found in UNCLOS and in the International Convention for the Safety of Life at Sea (SOLAS). It was alleged that Italy had violated rights under article 6 (1) of the ICCPR (right to life) due to negligent acts and omissions in its rescue activities at sea and that this had endangered lives and resulted in deaths or disappearances. It was alleged that the Italian authorities breached their duty to take all appropriate steps in order to safeguard lives.

Article 98(1) of UNCLOS provides:

1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:

(a) to render assistance to any person found at sea in danger of being lost;

(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him;

(c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call

Jurisdiction – the Majority View of the HRC

In giving judgment, the HRC recalled its General Comment No 36 (2019) on the right to life, which states:

‘In light of article 2, paragraph 1, of the Covenant, 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….’

It also recalled its jurisprudence that a State party may be responsible for extra-territorial violations of the ICCPR in cases involving extradition or deportation, if it is a link in the causal chain that would make possible violations in another jurisdiction, where the risk of an extra-territorial violation is a necessary and foreseeable consequence judged on the knowledge the State party had at the time, see Munaf v. Romania (CCPR/C/96/D/1539/2006) at paragraph 14.2.

The HRC asked itself the following question: Whether the alleged victims could be considered to have been within the power or effective control of Italy, even though the incident took place outside its territory?

It answered the question in the following way:

• 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, including the initial contact made by the vessel in distress with the Italian authorities, the close proximity of the Italian ship to the vessel in distress and the ongoing involvement of the Italian authorities in the rescue operation
• It also included the 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 (Regulation 33) and a duty to appropriately cooperate with other states undertaking rescue operations pursuant to the SAR Convention (Article 4.6)
• As a result, 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 Italy’s relevant legal obligations
• Thus, they were thus subject to Italy’s jurisdiction for the purposes of the ICCPR, notwithstanding the fact that they were within the Maltese SAR area and thus also subject concurrently to the jurisdiction of Malta.
• The conduct of criminal investigations in Italy regarding the conduct of naval officers involved in the incident further underscored the potential legal responsibility (in domestic law)of Italian officials

The way in which the HRC assimilated obligations under law of the sea treaty commitments to the facts of the case as part of its approach to finding extra-territorial human rights jurisdiction generated considerable controversy on the Committee itself (as will be seen below in the summary of the concurring and dissenting opinions). However, what it of note is that these law of the sea treaty commitments were so assimilated (and were done so by reference to the SOLAS Regulations and the SAR Convention), notwithstanding that the shipwreck took place in international waters, outside Italy’s SAR, and without the Italian naval ship Libra taking any steps to control the vessel.

To return for a moment to the UK’s Nationality and Borders Bill proposals to provide the Home Office with powers to conduct maritime enforcement operations in foreign waters and international waters: in any such operation in the exercise of such powers the UK too would be subject to its law of the sea treaty commitments (and the duty of rescue therein). Following the approach taken in A.S., D.I., O.I. and G.D. v Italy, in any Home Office push-back operation, if it was ascertained that the people in the vessel were in danger of being lost or had signalled that they were in distress, the Home Office boat would be subject to the duty of rescue in respect of the people it sought to push back and, it would appear, extra-territorial human rights jurisdiction would follow. The consequence would be that the question of whether there were violations of rights protected under the ECHR in the conduct of such an operation could be tested in UK courts via the Human Rights Act 1998, and thereafter by petitioning the ECtHR.

HRC: Concurring Opinions on Jurisdiction

There were four concurring opinions that illustrate the difficult issues that required elaboration arising even for those supporting the judgment in A.S., D.I., O.I. and G.D. v Italy.

First Concurring Opinion: Gentian Zyberi

There is a shared responsibility among states for SAR operations.  While a state has primary responsibility for its SAR area, there is a residual responsibility on all states to provide assistance, especially to those states with limited capacities.

The jurisdictional link in SAR operations is generally based on the international legal obligations of states to render assistance to persons in distress at sea, read in light of article 6 ICCPR.

The concepts of ‘power and control’ which are commonly used regarding extraterritorial jurisdiction have to be construed and interpreted in light of the specific circumstances at sea.

When assessing issues of state responsibility concerning SAR operations aimed at saving persons in distress at sea, the due diligence requirement is an obligation of conduct, requiring a state to make best efforts within the means available. 

In failed SAR operations that result in lives lost, the state has a procedural obligation under article 6 of the ICCPR to start ex officio a prompt and effective investigation to find out what happened and where necessary hold those responsible to account.

Second Concurring Opinion: José Santos-Pais

The main question is whether victims were within the power or effective control of Italy, even though the incident took place outside its territory. In addition, a further question is whether, under relevant international instruments (UNCLOS, the SAR Convention and the Regulations adopted pursuant to SOLAS), Italy failed to provide assistance to rescue of persons in distress at sea.

Third Concurring Opinion: Vasilka Sancin

The individuals on the vessel in distress were directly affected by Italy’s decisions in a manner that was reasonably foreseeable in light of the relevant legal obligations on Italy, and they were thus subject to Italy’s jurisdiction.

In the high seas, where, according to the law of the sea, neither Italy nor Malta may exercise any territorial jurisdiction, other than over the vessels flying their flags (and in circumstances exhaustively envisaged in the UNCLOS), the issue of establishing whether the individuals were subject to Italy’s jurisdiction, applying the maxim of ‘power or effective control’, is intrinsically linked to the right engaged – the right to life.

Italy had a power to act upon its international duties to render assistance to a vessel in distress under article 98 of UNCLOS and to assist Maltese authorities in its SAR area.

Fourth Concurring Opinion: Hélène Tigroudja

On the question of the extraterritorial jurisdiction exercised by Italy, Ms Tigroudja was not fully convinced by the way the majority solved the question. She considered that there was a mix up between substantive obligations and the existence of a jurisdictional link with Italy.

HRC: Dissenting Opinions on Jurisdiction

There were three dissenting opinions that rejected the HRC majority view as to jurisdiction.

First Dissenting Opinion: Yuval Shany, Christof Heyns and Photini Pazartzis

The majority views failed 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.

It has not been claimed before the HRC that Italy formally accepted legal responsibility for the search and rescue mission before the capsizing nor that it assumed de facto control over the operation.

These HRC members considered that the majority view could lead to disruption of the international legal regime established to ensure effective search and rescue operations.

They noted that the approach taken by the majority of collapsing the ability to engage in a maritime operation in search and rescue areas for which another state is internationally responsible with the notion of jurisdiction over the individuals on vessels in distress might disrupt the legal order which the SOLAS and SAR Conventions had attempted to introduce, with a view to minimising the ‘tragedy of the global commons’, generated by the lack of a clear division of labor between coastal states over search and rescue operations.

The victims on board of the capsized vessel did not fall before, or at the time of capsizing, under the jurisdiction of Italy for ICCPR purposes.

Second Dissenting Opinion: Andreas Zimmermann

By refusing to have its naval ship undertake a rescue operation to save the lives of the persons in distress at sea, Italy was violating its obligations under the law of the sea. Yet, this was neither the question that was before the  HRC,  nor what HRC had to decide, nor indeed could the HRC have decided this very issue.

It was of no legal relevance for purposes of article 2 (1) ICCPR whether Italy was exercising criminal jurisdiction on the basis of the Italian nationality of the naval officers on board its ship or any other Italian officials.

Third Dissenting Opinion: David Moore

The most powerful dissent, one underpinned by reference to the Vienna Convention on the Law of Treaties, came from David Moore. He asked, what was the the propriety of relying on international instruments beyond the ICCPR in interpreting the ICCPR?  He noted that policy reasons, such as harmonization, support interpreting the ICCPR consistently with other sources of international law.

However, the HRC’s jurisdiction only extended to interpreting a particular treaty (the ICCPR). The principles of the Vienna Convention on the Law of Treaties, whether as treaty or customary international law, should inform the HRC’s resort to non-ICCPR sources in ICCPR interpretation.

The Vienna Convention required consideration of:

‘[a]ny relevant rules of international law applicable in the relations between the parties.’ (article A 31(3)(c)).

Applying that approach, he noted that Italy and Malta are also parties to the SAR Convention, which provides for division of the high seas into search and rescue regions assigned to particular states. This arrangement, specifically focused on the division of responsibility and control, suggested that Italy’s ICCPR jurisdiction should extend, at most, to individuals within its region. The HRC’s decision to find jurisdiction outside that region added a layer of uncertainty, and even apprehension, regarding responsibility on the high seas.

The Result

Having found that there was human rights jurisdiction on an extra-territorial basis, the HRC found that:

• As regards its actions in response to the distress call, Italy had failed to show that it has met its due diligence obligations under article 6 (1) of the ICCPR (right to life)

• As regards the failure to carry out an effective investigation, there was a violation of the victims’ rights under article 6 of the ICCPR read alone and in conjunction with article 2(3).

The HRC decided not examine whether there was a violation of article 7 of the ICCPR, read in conjunction with article 2(3), as regards the anguish suffered by the authors of the communication and whether it amounted to inhuman and degrading treatment.

In the result Italy was obliged to proceed with an independent and effective investigation in a prompt manner and, if found necessary, to prosecute and try those who were responsible for the death and disappearance of the authors’ relatives.  It was also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

Conclusion

The result in the case is welcome in so far as it aids the protection of people seeking asylum and other people making dangerous journeys by sea.

Further, as noted above, the extension of human rights jurisdiction beyond national territory in this way has implications for the UK’s proposed maritime enforcement powers to conduct push-back operations in foreign waters and international waters: It ought to ensure a priority being placed on the duty of rescue as a way of ensuring the right to life.

That said, the way in which the HRC assimilated obligations under law of the sea treaty commitments to the facts of the case as part of its approach to finding extra-territorial human rights jurisdiction generated considerable controversy on the Committee itself and A.S., D.I., O.I. and G.D. v Italy may not be the last word on the matter.