Drowning Migrants in the Mediterranean and the ICCPR, Again

Last week 130 migrants perished off the coast of Libya, as their rubber boat capsized in the stormy Mediterranean. Some 750 migrants have died this year in trying to make the crossing. (See here for the IOM report, and here and here for the recent posts we had on this topic by Guy Goodwin-Gill, and Niamh Keady-Tabbal and Itamar Mann). There is little I can usefully add here in discussing a human tragedy such as this one – again, again and again. But I was particularly struck by the following passage from the Guardian’s report on the incident, in light of the Human Rights Committee’s recent decisions regarding Italy and Malta and the extraterritorial application of the duty to protect life under the International Covenant on Civil and Political Rights:

[The NGO] Alarm Phone said: “The people could have been rescued but all authorities knowingly left them to die at sea.”

The hotline service claims it was in contact with the boat in distress over 10 hours on 21 April, and repeatedly relayed its GPS position and the dire situation to European and Libyan authorities and the wider public.

However, it said all the European authorities rejected responsibility to coordinate the search operation and instead pointed at the Libyan authorities as the “competent” authorities.

“The Libyan coastguard, however, refused to launch or coordinate a rescue operation, leaving the 130 people out in a rough sea for a whole night,” it said.

“The lack of an efficient patrolling system is undeniable and unacceptable,” Flavio Di Giacomo, Italy’s spokesman for the UN migration agency, said on Twitter. “Things need to change.”

This incident happened off the coast of Libya, in its SAR area but not in its territorial seas. Readers will recall that in its Malta decision the Committee found that the ICCPR applied to Malta because the migrant vessel was shipwrecked in Malta’s SAR area and Malta had ‘formally accepted to assume the coordination of the rescue efforts.’ Malta thus had ‘effective control over the rescue operation.’ (para. 6.7). Here, by contrast, the vessel capsized in Libya’s SAR area, but Libya did NOT formally accept to coordinate the rescue efforts, and it had no control over the rescue operation because there was no rescue operation. This then is my question – if you were a judge or a member of a human rights body attempting to apply the Committee’s jurisprudence faithfully, are these two cases legally distinguishable? Does, in other words, Libya’s greater passivity when compared to Malta’s dispense it with the duty to protect life under the ICCPR, or is the vessel’s mere presence in Libya’s SAR region enough?

And what about the European states whom Alarm Phone was calling in vain? Did they have an ICCPR duty to do something, even if the vessel did not capsize in their SAR area? In the Committee’s Italy decision, it focused on a ‘special relationship of dependency’ that existed between Italy and the migrants, because Italy had a navy ship in reasonably close proximity, the migrants were in touch directly with Italian authorities, and these authorities remained involved in the rescue effort (para. 7.8). Here, by contrast, we don’t know whether any European state had a ship close enough to help the migrants – they may well have, since the whole situation of distress lasted for many hours. The key point here, however, is the lack of any efficient patrolling system, which minimizes the chances that a ship will be close enough. The relevant European authorities also refused to engage at all with Alarm Phone, simply pointing them back to Libya. So again, if you were to faithfully apply the Committee’s jurisprudence, should these states be rewarded for their greater passivity, or should the Covenant nonetheless apply? And if your answer is the latter, is this because of any ‘special relationship of dependency,’ or because you think the Committee’s jurisprudence needs revisiting?