Amicus Curiae Brief re MH17; Human Rights Committee on Search and Rescue at Sea

Recent weeks have been something of an extraterritoriality extravaganza. So let’s continue with that theme, hopefully not ad nauseam. First, readers might be interested in the amicus curiae brief that my colleague Sangeeta Shah and I co-authored and which we submitted this week to the European Court of Human Rights in the case of Ukraine and the Netherlands v. Russia (nos 8019/16, 43800/14 and 28525/20). Our brief deals exclusively with the 2014 downing of the MH17 airliner over Ukraine. By way of procedural background, in July 2020 the Netherlands filed a case against Russia re MH17 (press release; post by Risini and Ulfstein), which in December the Court joined with two other applications by Ukraine (press release). There is also a communicated individual case pending before the Court on MH17 (Ayley and others v. Russia).

The first part of our brief addresses issues of attribution and state jurisdiction in the sense of Article 1 ECHR, providing guidance on the applicable tests for considering whether the respondent state can be held responsible for the downing of MH17. The second part of the brief examines how mistake of fact in the use of lethal force should be considered in light of the obligations under Article 2 ECHR. The third part of the brief examines possible prevention and complicity doctrines relating to the right to life under the Convention in the context of weapons transfers to third parties. Readers can find the brief on SSRN here.

In other news, two days ago the UN Human Rights Committee decided a pair of cases against Malta and Italy (CCPR/C/128/D/3043/2017 ; CCPR/C/130/DR/3042/2017) that deal with the failure of these two states to rescue a group of more than 200 migrants whose vessel sank in the Mediterranean in 2013. Extraterritoriality was clearly a major feature of the two cases. Briefly, the Committee applied a functional conception of jurisdiction to find that the migrants were concurrently within the jurisdiction of both Malta and Italy. The case against Malta was however declared inadmissible for failure to pursue any domestic remedies, while Italy was found responsible for failing to discharge its positive obligation to protect the lives of persons in distress at sea.

This was the Committee’s first big opportunity to apply the functional approach it had articulated in General Comment 36, and to do so in the most difficult of contexts – the applicability of positive obligations of protection. And while the Committee found that both states had jurisdiction concurrently, it was quite divided in doing so. Both the Committee’s views and the separate opinions are very much worth the read. Perhaps the most striking point here is that Yuval Shany, who has long advocated for a functional approach and was (together with Nigel Rodley) the main author of GC 36 did not think that the jurisdictional threshold was crossed for Italy, but was for Malta.

I may have more to say on the decisions next week. Just one quick thought/hypothetical now. A major point in the reasoning of the majority and the separate opinions is that the sinking of the migrants’ vessel occurred in the designated search and rescue region (SAR) of Malta. But imagine the following scenario. In the middle of the Atlantic, a luxury yacht carrying some really, really nice people (e.g. Mark Zuckerberg, Elon Musk and Jeff Bezos) capsizes. Immediately next to it – like 50 meters away – is an Italian military cruiser. Italian sailors can see before their very eyes how the persons aboard the yacht are in immediate distress. Zuckerberg is holding to a makeshift raft, but his grip is slipping; the waters are very cold.

The capsizing is obviously not taking place within the Italian SAR. Looking at the views of the Committee and the opinions of its members, do you think that the drowning Zuckerberg et al would be subject to Italy’s jurisdiction in this scenario? Would your answer change if the Italian cruiser was a kilometer away? Would your answer change if it was an hour’s sailing away (which was the situation in the HRC Malta/Italy case)? Would your answer change if there were other vessels in the area, some of which were closer? Would your answer depend on whether the Italian cruiser responded, or not, to any distress call?