Drowning Migrants in the Mediterranean and the ICCPR, Again

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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?

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Fenella Billing says

April 26, 2021

Thank you, Marko, for presenting such pertinent questions. I believe there are some important law of the sea provisions worth bearing in mind.
The first is that, under art 98(2) UNCLOS, coastal states have an international obligation to operate search and rescue (SAR) services and to cooperate with neighbouring states – in the case of the Central Mediterranean, I would put Italy and Malta together with Libya as relevant coastal states. Secondly, while the ‘primary’ duty is on the state operating the maritime SAR region, under the SOLAS and SAR Conventions there is also a duty on all coastal states to engage and cooperate in SAR operations. Thirdly, para 6.7 of the IMO Guidelines on the Treatment of Persons Rescued at Sea 2004, that were adopted in conjunction with the treaty amendments to the SAR and SOLAS conventions introducing the ‘place of safety’ concept, clearly state:
'When appropriate, the first RCC contacted should immediately begin efforts to transfer the case to the RCC responsible for the region in which the assistance is being rendered. When the RCC responsible for the SAR region in which assistance is needed is informed about the situation, that RCC should immediately accept responsibility for co-ordinating the rescue efforts, since related responsibilities, including arrangements for a place of safety for survivors, fall primarily on the Government responsible for that region. The first RCC, however, is responsible for co-ordinating the case until the responsible RCC or other competent authority assumes responsibility.'
These IMO Guidelines from 2004 are non-binding in nature, however, the 2004 amendments to the SAR and SOLAS conventions require states to take them into account in connection with their SAR duties.
Returning to your questions about the ICCPR, I consider the above provisions could well support a parallel duty under the ICCPR based on positive obligations to protect life.

Arnie Friede says

April 26, 2021

The legal questions arguably are beside the point. If someone is drowning, and you can help without risk to your own life, you have an obligation to do, whether characterized as legal or moral. Seems to me the legality analysis often misses the real question.