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Views Adopted by the Committee Under Article 5(4) of the Optional Protocol, Concerning A.S., D.I., O.I., and G.D. v. Italy, Communication No. 3042/2017 (U.N. Hum. Rts. Comm.)

Published online by Cambridge University Press:  21 July 2021

Patricia Vella De Fremeaux (Mallia)  and
Felicity G. Attard
Patricia Vella De Fremeaux (Mallia)
Affiliation:
Patricia Vella de Fremeaux (Mallia) is an associate professor and Head of the Department of International Law in the Faculty of Laws, University of Malta.
Felicity G. Attard
Affiliation:
Felicity G. Attard is a lecturer in the Department of International Law at the University of Malta.
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Extract

On January 27, 2021, the United Nations Human Rights Committee (HRC or Committee) published two separate decisions in response to communications brought against Malta and Italy. Both decisions concerned the same incident, which occurred on October 11, 2013, where over 200 migrants drowned in a shipwreck in the Mediterranean. The first complaint brought against Malta was dismissed by the Committee on procedural grounds. In the second case, A.S., D.I., O.I. and G.D. v. Italy, the HRC found that Italy had failed to protect the right to life of the migrants under the International Covenant on Civil and Political Rights (ICCPR). This introductory note discusses the significance of the Committee's findings in this decision and its ramifications with respect to the protection of human rights at sea.

Type
International Legal Documents
Information
International Legal Materials , Volume 61 , Issue 1 , February 2022 , pp. 41 - 60
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of The American Society of International Law

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References

ENDNOTES

1 A.S., D.I., O.I. and G.D. v. Malta, Communication No. 3043/2017, Decision adopted by the Committee under the Optional Protocol, CCPR/C/128/D/3043/2017, (Apr. 28, 2021).

2 A.S., D.I., O.I. and G.D. v. Italy, Communication No. 3042/17, Views adopted by the Committee under Article 5(4) of the Optional Protocol, CCPR/C/130/D/3042/2017 (Jan. 27, 2021) [hereinafter Decision].

3 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

4 Decision, ¶ 1.1.

5 Id. ¶ 2.1.

6 Id. ¶ 1.1.

7 Id. ¶ 2.2.

8 Id. ¶ 2.4.

9 Id. ¶ 2.3.

10 Id. ¶ 2.3–2.4.

11 Id. ¶ 8.5–8.8.

12 See also Irini Papanicolopulu, Human Rights and the Law of the Sea, in The IMLI Manual on International Maritime Law, Volume I: The Law of the Sea 509–532 (David Joseph Attard ed., 2014).

13 See, e.g., decisions of the Committee against Torture in J.H.A v. Spain, CAT/C/41/D/323/2007 (Nov. 21, 2008) and Sonko v. Spain, CAT/C/41/D/368/2008 (Nov. 25, 2011), and the European Court of Human Rights in Hirsi Jamaa v. Italy, App. No. 27765/09 (Feb. 23, 2012).

14 S.S. and others v. Italy, App. No. 21660/18, http://hudoc.echr.coe.int/eng?i=001-194748.

15 General comment No. 36 (2019) Article 6: right to life, CCPR/C/GC/36 (Sep. 3, 2019).

16 Decision, ¶ 7.5

17 Id. ¶ 7.7

18 Id. ¶ 2.7; see also Seline Trevisanut, Is there a right to be rescued at sea? A constructive view, Questions Int'l L. (2014), cited in note 4 of the Decision.

19 Id. ¶ 7.8

20 Decision, Annex 2, Individual Opinion of Andreas Zimmerman (dissenting), ¶ 4.

21 The due diligence obligations incumbent on the flag state translate into the existence of valid legislation mandating the shipmaster to rescue those in distress at sea, and vigilant enforcement of such legislation. While in the case of the coastal state, the obligation is that of maintaining adequate search and rescue services and cooperating in rescue operations; see also Felicity G. Attard, The Duty of the Shipmaster to Render Assistance at Sea Under International Law 262–280 (2020).