Flag State responsibility in international human rights law for individuals on board private vessels

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Introduction

On 10 April 2024, the EU Parliament adopted new rules strengthening responsibility-sharing among member States in respect of management of migratory flows. The new Migration and Asylum Pact is the outcome of years of political negotiations, including in the light of the complex situation in the Mediterranean Sea. However, as we explain below, the principle of responsibility-sharing has a basis in international human rights law, too.

In this post, we focus on the responsibility of flag States pursuant to international human rights law in respect of individuals rescued on the high seas by private vessels flying their flag.

In November 2022, the vessel Ocean Viking, chartered to the NGO SOS Mediterranée, requested a few countries, including Italy, to provide a place of safety to disembark 234 migrants it had rescued in the Maltese and Libyan Search and Rescue Areas (SAR). Italy urged Norway, as the flag State of Ocean Viking, to undertake responsibility pursuant to flag State jurisdiction in respect of the rescued migrants. The Norwegian Ambassador to Rome responded to Italy’s request with the following statement: “Norway has no responsibility under human rights conventions or the law of the sea for persons taken on board private Norwegian-flagged vessels in the Mediterranean”.

Extraterritorial jurisdiction of the flag State as effective control

Norway’s position is consistent with the stricter approach to the matter: a State is only responsible extraterritorially under human rights law when it exercises effective control over a space or persons. This is ordinarily lacking in respect of individuals on board private vessels. In this regard, Papastavridis notes that generally “where rescue operations are conducted by private vessels (…) there is no jurisdictional link between the rescued persons and the flag State” (at 432).

The author identifies as a possibility of effective control the case in which “the master was given specific instructions from the competent authorities of the flag State as to how it should proceed with the persons concerned and acted accordingly”. There are other possibilities, too. The Italian Supreme Court on 1 February 2024 decided that, since pursuant to Italian law masters of private vessels are “incaricati di pubblico servizio” (a notion akin to that of persons exercising elements of governmental authority under Article 5 ARWISA), their conduct engages Italy’s jurisdiction for purposes of the European Convention on Human Rights.  

Extraterritorial jurisdiction of the flag State “ipso facto

Human right bodies have made statements more in line with Italy’s position than Norway’s. These appear to suggest that, irrespective of any exercise of concrete control, States are ipso facto implicated with protecting the rights of individuals taken on board private vessels flying their flag.

In a note of 22 December 2022, the UNHCR explicitly asserted the flag State’s duty to “cooperate with other States to ensure disembarkation arrangements and access to asylum consistent with international law” (at 4.5) and its residual responsibility when cooperation with other States fails. For the UNHCR, this is to ensure flag State compliance with its international human rights obligations.

Although the legal basis for the co-responsibility of the flag State is unstated, the UNHCR’s position is grounded in the practice of the European Court of Human Rights and the UN Human Rights Committee.

European Court of Human Rights

In Banković and others v Belgium, the ECtHR indicated that “other recognised instances of the extra-territorial exercise of jurisdiction by a State include cases involving the activities (…) on board craft and vessels registered in, or flying the flag of, that State” (at 73). The Court went on to note that in special instances such as activities on board ships, “customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant State”. These statements encapsulate two key aspects of the Court’s reasoning.

First, the assimilation of the notion of “jurisdiction” within the meaning of Article 1 ECHR and in public international law (Banković, at 59; H.F. and others v. France, at 185; and Wieder and Guarnieri v. UK, at 87).

Second, the recognition of “customary international law and treaty provisions” as a form of de jure extra-territorial application of human rights, distinct from the extra-territorial jurisdiction arising from a de facto effective control over a territory or persons.

The facts of Banković did not concern vessels. The Court, however, relied on Banković’s position in cases that did: Medvedyev v. France, Hirsi v. Italy, and Banakova v. Lithuania. These cases support the proposition that the jurisdictional connection created under general international law by the flag is – in and of itself – sufficient to establish human rights law jurisdiction of the flag State.

Medvedyev concerned the boarding by French authorities of a merchant ship registered in Cambodia. While the Court (at 65) quoted Banković, this was not determinative of the reasoning on jurisdiction. Since the vessel had been placed under the control of the French Navy, the ECtHR noted:

“France having exercised full and exclusive control over the [vessel] and its crew, at least de facto (…) the applicants were effectively within France’s jurisdiction for the purposes of Article 1 the Convention” (at 67).

However, the expression “at least de facto” is significant. Read together with the reference to Banković, it suggests that for the Court the flag ordinarily implies de jure control over private vessels.

Hirsi confirmed this. An Italian military vessel intercepted migrants from Libya on the high seas, took them on board and returned them to Libya. It would have been sufficient, to establish jurisdiction, to rely on the fact the migrants were placed under the Italian Navy’s control. Yet, this was only an ad abundantiam consideration for the Court. The main reasoning was as follows:

“by virtue of the relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying. This principle of international law has led the Court to recognise, in cases concerning acts carried out on board vessels flying a State’s flag, (…), cases of extraterritorial exercise of the jurisdiction of that State (…). Where there is control over another, this is de jure control exercised by the State in question over the individuals concerned (…) the instant case does indeed constitute a case of extraterritorial exercise of jurisdiction by Italy capable of engaging that State’s responsibility under the Convention” (at 77-78).

Bakanova concerned Lithuania’s duty to investigate a death that had occurred on a Lithuanian-flagged vessel while on the high seas. The Court quoted the general proposition on extraterritorial jurisdiction on vessels in Banković, and further relied on the following “special features” for purposes of Article 1:

“the [vessel] belonged to a Lithuanian company (…), the ship was registered in the Register of Ships of (…) Lithuania and sailed under a Lithuanian flag (…). Under Lithuanian legislation, the [vessel’s] captain exercised exclusive control over the ship while it was on a voyage (…). The relations between the ship’s crew and the captain (…) were determined by Lithuanian laws” (at 63).

In fact, these features are not at all “special”, but follow ordinarily from a flag State’s jurisdiction over its vessels under “customary international law and treaty provisions”. For example, the application of the flag State’ laws on board ensues from Articles 92 and 94 UNCLOS. Equally, it is standard that the master of a vessel has exclusive authority on the ship, so much so that in common law the powers of masters have been described as “despotic” (at 9). As regards decisions concerning safety of life at sea, Regulation 34-1 SOLAS gives the master full authority.

Overall, the Court’s approach contradicts the scholarly view that “it is perfectly irrelevant for the question of the extraterritorial application of human rights treaties that customary law recognizes that the State may regulate conduct aboard registered ships” (Milanovic, at 193).

Human Rights Committee

Similarly to the ECtHR, the HRC indicated in its General Comment 36 that “States parties are also required to respect and protect the lives of all individuals located on marine vessels and aircraft registered by them or flying their flag” (at 63).

Further, S.A. and others v. Malta, concerning Malta’s failure to rescue migrants in its SAR, also reflects the ECtHR’s approach in Banković to the human rights implications of flag State jurisdiction. Specifically, in assessing Malta’s jurisdiction, the HRC considered that:

“(…) none of the alleged violations occurred when the authors’ relatives were on board a vessel hoisting a Maltese flag. The question before the Committee is therefore whether the alleged victims could be considered to have been within the power or effective control of the State party” (at 6.7, emphasis added).

Thus, for the HCR, differently from acts occurring in SAR zones, which require some form of effective control to engage the State’s jurisdiction, conduct taking place on a vessel falls ipso facto within the de jure extra-territorial jurisdiction of the flag State.  

Moreover, insofar as the HRC may have suggested (Milanovic) that a SAR State’s responsibility under the ICCPR arises automatically with regard to individuals finding themselves in that area (S.A. and others v. Italy, holding that certain individuals “were within the Maltese search and rescue region and thus (…) subject (…) to the jurisdiction of Malta”, (at 7.8, emphasis added)), flag State’s responsibilities under human rights law would, a fortiori, be engaged. SAR State jurisdiction in the SAR is limited; on the other hand, Article 92 UNCLOS recognizes a broad jurisdiction of the flag State on vessels flying its flag.

Flag State responsibility would be engaged also under a more functionalistic reading of the HRC’s approach in S.A and others v. Malta. The HRC emphasized Malta’s duties to search and rescue under Article 98 UNCLOS, as well as pursuant to the SAR and SOLAS Conventions. This was consistent with General Comment 36, referring to the duty to protect the lives of those who are in distress at sea, in light of international obligations (at 63). If international obligations of the SAR State imply its jurisdiction for purposes of the ICCPR, then flag State international obligations likely have the same effect. Article 94 UNCLOS sets out pervasive duties for flag States, including in respect of those on board: “[e]very State shall effectively exercise its jurisdiction and control in (…) social matters over ships flying its flag”. Article 98 sets out search and rescue obligations also for the flag State.

Likewise, a functionalist approach based on the proposition that “States ought to implement human rights obligations in those situations in which they have a special relationship with the individual in question that renders them particularly well suited to protect that said individual” matches well the position of flag States in respect of those on board their private vessels (Shany, at 69-70, Shany, at 150).

Conclusions

The S.S. Lotus idea that a vessel is floating territory of the State is long gone (Tanaka, at 190). However, this is no reason to discard the proposition that the connection created by the flag in international law engages ipso facto the responsibility of the flag State in human rights law. For the ECtHR, there appears to exist a special genus of “de jure extraterritorial control” of the flag on its vessels. This appears a “presumption of jurisdiction” similar to the one a State possesses on its territory, yet independent of territoriality. This may derive from the sui generis nature of flag State jurisdiction on its vessels: not territorial, yet enjoying many of the same features (Fischer-Lescano et al. at 274-275). The HRC’s position, either under the same reasoning as the ECtHR or under a functionalist approach, leads to the same conclusion: there is no support in human rights law for the proposition that flag States do not have any responsibility for persons taken on board their private vessels in the context of search and rescue.

While this does not exclude the responsibility of other States in respect of migration in the Mediterranean, it reflects that a degree of responsibility-sharing, including as envisaged by UNHCR, is not only a political solution, but also a legal obligation.

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Comments

Asher Rottenberg says

May 1, 2024

Certainly, here's a polished version of Bakanova, alongside the Italian court's decision, emphasizes the role of domestic law establishing regulations governing ships, in order to place the ship under the de jure jurisdiction of the respective state, HRL-wise.

Hirsi underscores the permissive jurisdiction granted by UNCLOS to states over flag ships, which is sufficient to invoke de jure jurisdiction for the purposes of HRL.

What if a state opts for lenient or minimal regulation of its flag ship? how might this policy impact its de jure jurisdiction and consequently its obligations under HRL, in your opinion? Thank you

Andrea Maria Pelliconi says

May 2, 2024

This is an excellent post and very compelling. I was wondering what in your opinion is the content of the flag state's responsibility. It seems to me that they'd have a "mere" duty of cooperation to ensure safe disembarkment to the first available port. Or do you think it extends to ensure ex post effective asylum procedures and particularly non-refoulement?

Alessandro Pizzuti and Paolo Busco says

May 5, 2024

Dear Asher and Andrea Maria,

Thank you very much for your comments and for reaching out. We’re happy that you took interest in our post.

On Asher’s point, our view is that Article 92 UNCLOS, in the manner in which it has been interpreted and applied by the ECtHR and HRC at least, would ground jurisdiction for purposes of IHRL irrespective of the leniency / intensity of the regulations adopted by the Flag State pursuant to that provision. Article 92 is a permissive / exclusionary rule, which creates a jurisdiction space on the vessel reserved to the flag State: it permits the Flag State to regulate, to the exclusion of any other State, a number of issues, including matters pertaining those on board the vessel.

Whether and how the State does this is not so relevant (and in any case, Article 94 sets out certain duties for the flag State on what it must regulate and effectively exercise jurisdiction over, for instance social matters on board).

In a way, the jurisdiction envisaged by Article 92 - again in the view of human rights bodies - creates a situation not dissimilar to that concerning a State’s territory, at least ordinarily: a presumption of jurisdiction (de jure), which exists irrespective of how and to what an extent the State actually exercises the jurisdiction it possesses.

As regards to Andrea Maria’s comment: you put the finger exactly on the critical aspect. In general terms, we think that flag State responsibility imposes an obligation to at the very least cooperate to ensure safe disembarkation. How this can be achieved is a matter for discussion, but the bottom line for us is that the position that the flag State has “nothing to do” with those on board its vessels is untenable. Depending on the specific scenario, flag State responsibility is likely to also cover aspects concerning non-refoulment, by virtue of relevant positive obligations under the Convention. We promise to write a sequel to our post soon, to address this matter more comprehensively than we would be able to do in a comment.