Always a pleasure and an honour to be part of this group and to have the opportunity to exchange with so many people.
And and I see many familiar names and faces.
It's very nice. And I look forward to your questions.
But without further ado, I will share my screen with you.
And my presentation of today say.
Is yes, it's shared. Right? Yes. OK, perfect.
So in the next half an hour, 40 minutes, I would like to discuss the recognition of the right to be rescue at sea.
And to be honest, when I was contacted a couple of months ago and invited for this talk, I had thought about a completely different topic.
But then just a month ago or less than men,
that the Human Rights Committee adopted this decision on a case involving Italy and Malta concerning their army's mass mismanagement,
base management, sorry, office search and rescue operation.
And then has well, you have heard from Natasha, introduction,
immigration and Search and Rescue Services is one of my lines of research is a theme that is very close to my heart,
which goes back to my feet, actually paces. And then reading the the the decision.
I thought, oh, there are so many aspects concerning in particular jurisdiction and how we frame jurisdiction in the law of the sea and
in human rights and more generally in international law that we can actually discuss on the basis of this decision.
And also, it is the first decision in which there is a clear affirmation and recognition
of what can be considered a right to be rescue at sea by an international body.
So for those of you who haven't had the chance to read the decision, I copy and paste it here.
Two of the main passages, paragraphs of the decision, one,
which is the one where the committee actually recognises that the Italian authority where exercising jurisdiction so that the
individuals on the vessels which were in distress were directly affected by the decisions taken by the authority and authorities.
And on the basis of that, the committee construed the jurisdictional link between the Italian authorities and the people on board of those vessels.
And the second part way the committee actually recognises that there is a violation
of the right to life because of a failure in responding to the distress call.
So here the construction of the breach of the right to life on the basis of a conduct.
So how what is the threshold for the breach of due diligence obligation?
Has is the one of render assistance. And this is a clarification also brought by this decision.
The committee adopts a very clear functional approach to jurisdiction in this decision.
So construing the effective control over the individuals on the basis of the exercise of functional powers by Italy, specifically in this decision.
And the function and functional dimension of jurisdiction is argued on the basis of the law of the sea,
specifically of those soldiers, as the safety of life at sea and the search and rescue convention.
This approach, however, was not shared by all the members of the committee and in particular of three members of the committee.
Highly agreed with the functional approach adopted by the majority,
in particular invoking a disruption of the system created by the two conventions, the solar and the soulless and the SAA convention.
And also that invoking or sort of confusion may be created also by this approach when international law or read the basic needs,
which is the state responsible. And so which is the state which has jurisdiction.
When I read this dissenting opinion by this eminent eminent members of the of the committee,
I thought this thinking as well about whether there was some ground there,
whether indeed this functional approach,
if on the one hand we see the clear added value of the recognition of the right to be rescued for the individuals involved in any distress instance.
Is there indeed a disadvantage for the system which was created by the Solus and the SA conventions?
Is there really disrupting? What were the main objectives of the conventions?
And that's what I want to discuss with you in the coming half an hour.
And my point of view, and I tried to convince you in the next minute, is that actually there is no disruption of the legal system,
the legal order created by these two conventions, and that actually the recognition of her right to be rescued is,
in my view, welcome, because it clarifies actually some of the obligations which are in the conventions
and it in particular clarifies the sharing of the burden of those obligations.
In practical situations and in order to convince you of that, will then follow four steps.
One. First of all, I will introduce a very briefly,
what is the duty to render assistance and what are the main features characteristics of the legal order created by the SAA and the Soulas conventions?
Then I will focus on the exercise of jurisdiction in SAR operations and in that in light also of the decision adopted in January.
And then what is the how can the right to life be applied in the SAA context and in which way?
Also, it influences actually the behaviour of states involved in Surrell operations and then to
conclude that it is a welcome outcome of this decision of the Human Rights Committee.
So first of all, the duty to render assistance. I know that some of you are quite familiar with it,
and I apologise if I repeat things that are maybe a bit boring for you, but I guess not everybody's familiar.
So I will just introduce very briefly the main instruments and the main obligations.
Article 98 of the Law of the Sea Convention affirms the right to read the duty to render assistance.
And you see here the draughting of Article 98,
where every state shall require the master of a ship flying its flag to render assistance to any person found
at sea in danger of being lost or to proceed with all possible speed to the rescue of persons in distress.
If informed of their need of assistance. So here the distinction is between two factual situations when there has been indeed distress call.
And so the authorities and events or the merchant vessel which receives the call is informed of a situation of distress.
And then the first setu duration, which is paragraph A, when actually there was no distress call.
But some persons in danger of found at sea. So the obligation to render assistance applies in both situations.
There is not a duty only when we receive a request.
But there is a general duty to render assistance even when there is no specific request by the people in danger.
This obligation, you will find it in the part of the Law of the Sea Convention, which regulates the high seas regime.
However, it is also a rule of customary international law when it is recognised and accepted as rule of customer international.
And it is considered to be applicable in all maritime zones.
And this is indirectly confirmed also by the Law of the Sea Convention itself in Article 18, paragraph two,
which concerns the regime of the territorial sea and specifically the conditions
for the exercise of the right of innocent passage where innocent passage,
which is usually continues, can actually be interrupted.
So there can be stopping or anchoring when it is to render assistance to persons in need.
So the duty to render assistance as a circumstance,
precluding the responsibility of a foreign vessel for breaching the conditions of exercise of the right of innocent passage.
And this confirms the application of the duty to render assistance in all the maritime zones, including the territorial sea.
This is what we find in the Law of the Sea Convention. This enunciation of this core principle of law of the sea and maritime affairs.
It is a principle which is way older than the Law of the Sea Convention.
Actually, some of you are interested. There are some historical work which has been done,
and they said that there are some writings already from ancient Greece and ancient Rome in which that principle
was invoked already as applicable to all or in all all seas and for all vessels involved in navigation.
That principle, whether it's, as I said, a general principle which applies to all vessels,
and it appears quite soon that in order to have an efficient system of rescue, then we need also cooperation.
And that emerged well with the increase of navigation, with the increase of the human presence at sea.
Well, of course, you have more instances of distress for danger and then also with actually the
first migrant migratory flows by sea and indeed the search and rescue cooperation.
So the search and rescue convention was adopted in nineteen seventy nine,
which is after years already of problems concerning actually instances of non
assistance in the Southeast Asia area along the coast of Vietnam and Cambodia,
which were where many people were trying to flee from those countries through to on the one hand,
the Vietnam War and on the other hand, the Khmer Rouge in Cambodia.
And in those with those first. Mass mass migration, migratory flows by sea.
It became quite evident that there was a problem of coordination and cooperation,
because if everybody all the states involved and also the vessels, the merchant vessels all agreed that there was this duty to render assistance.
Then it was less clear what to do with the persons once they were rescued.
And which of the states of the area was the one in charge for coordinating
eventually the operations and deciding what would happen to those people rescued.
So the SAA convention, the search and rescue convention adopted in 1979, was really a corporation convention.
So to organise a system of coordination and cooperation amongst states in order
to guarantee a minimum level of effectivity to search and rescue services.
And here I put to Rebbie the of course, the most recent version of this convention, which shows how the system wants to organise also the cooperation.
And here I focus on Article three, paragraph one nine,
because the main issue that was already in the 70s and that we unfortunately still have nowadays,
and I'm sure if you have read the newspapers in the last years, you are all very familiar with it is the issue of disembarkation.
So, again, what to do with the though the people once they are rescued?
And here I don't choose on purpose the three the term migrant because this system applies to everybody.
So it is not the search and rescue convention and the Solus convention were not conventions adopted to hand for handling migratory flows.
But there were conventions created in order to Hannan's the safety of life at sea to make
sure that anyone who is in danger or in distress will receive some sort of assistance.
Of course, no one pretends that states save 100 percent of the life at sea.
This is impossible. Let's be clear.
But it was really to the aim was to create a certain level of efficiency, to threaten the duty to render assistance to coordination and cooperation.
And the main issue of contention was what to do with the people rescued.
Once they're rescued, in particular, if there are migrants, irregular migrants or potential asylum seekers,
that issue emerged right away after the adoption of the convention in 79.
It was already one of the issues around the coasts of Vietnam and Cambodia.
It continued to be an issue later on, also in the 90s and in the beginning 2000.
Many of you are aware, with many instances of ports closing,
refusing the disembarkation of vessels which had just rescued irregular migrants in the Mediterranean or in the ocean in the Atlantic Ocean,
along the coast of the Canary Islands. So in 2004,
the some amendments to the SAA and SOLARS convention conventions were adopted in
order to hopefully clarify this division of labour between the states involved.
And one obligation, which was to clarify is this obligation to coordinate and cooperate,
to ensure that the masters of ships providing assistance are released from their
obligations with minimum further deviation from the ship's intended flight.
So the idea that states, even if the rescue actually was performed by a private vessel, which happens quite regularly,
then even in those instances the states had the primary responsibility and should take over the service which was performed by the private vessel.
Moreover, the state party in whose search and rescue region the the operation took place
would have the primary responsibility to ensure that coordination and cooperation.
And that then on the basis of that coordination and cooperation, the people will be delivered to a place of safety.
In all cases, all the relevant parties shall arrange for such disembarkation to be effective as soon as reasonably practicable.
So not only the search and rescue state, but all the relevant parties.
Which means eventually also other states which have been involved in the operation,
but also the flag state of the vessel, the private vessel, for instance, which rescued the people.
So all the parties involved should be cooperating and coordinating the first of all,
the identification of the place of safety and then the disembarkation in a place of safety.
Those amendments actually were adopted with some debates, in particular the search at the coastal states, some causes,
they thought that that would put too much pressure and responsibility on coastal states with
this primary obligation of the search and rescue state and indeed in the Mediterranean context,
not all Mediterranean states have indeed ratified goes amendments and.
Some of the key concepts that are using and introduced by those amendments also actually steered quite a bit of debate.
And notwithstanding the fact that the AM, which was the international organisation competent for those amendments,
tried to clarify those concepts as much as possible.
The main concept, which was debated and still debated, is while the place of safety.
What is a place of safety? What are the criteria for the determination of the place of safety?
And generally, the the threshold is that the place of safety is the place in which the rescue operations is considered completed.
But what is safe and how did you do?
Do you determine the safety? Is it enough that the livelihood so the survival is guaranteed of the people?
Or are there other guarantees maybe on an individual basis that should be taken
into account when authorising the disembarkation on this specific territory?
And here of Keris, a very important field of law which comes to interact with the law of the sea in the search and rescue system is refugee law,
where there was a very tight cooperation between the UNHCR and the valuable cooperation,
which was also actually existing prior the amendments of 2004.
Already in the 70s and in the 80s, the two organisations had closely cooperated for the in achievement of actually migratory flows by sea.
And they together we have now a 2015 version of this principles.
Where do some criteria deriving from refugee law and human rights are indicated to help
the states and to help the ship masters to actually identify the place of safety?
But not withstanding that the issue of disembarkation continued.
It still is a big issue and it was discussed there again in 2009.
So only five years after the adoption of the amendment and it continues to be discussed within the HMO and in generally within this system.
This is to give you a bit of an introduction of the main instruments and the core obligations stemming from those those instruments.
And now I would like just to focus more precisely on the concept of jurisdiction,
which is really key here, because, of course, if we are talking about the recognition of a right,
we need to make sure that there is exercise of jurisdiction by a state which
will guarantee the right and which will have eventually some responsibility.
If that's right, is not is breached. So that that that's right.
Is not complied with. The difficulty in assessing the exercise of jurisdiction in search and rescue,
in the search and rescue context is that actually the search and rescue regions, search and rescue zones are not sovereignty shelters.
So it is not like they in the territorial sea where you have a presumption of exercise, of jurisdiction of the coastal states.
OK,
it is a purely functional zone which is created for the state to perform search and rescue services and to coordinate search and rescue operations,
which might happen in that area may be performed by someone else.
And the fact that is not a sovereignty zone, this is clearly also confirmed by the SA convention itself,
which says that the delimitation of search and rescue regions is not related
to and should not prejudice the delimitation of any boundary between states.
So it has nothing to do with normal territorial delimitation.
And I like to say that it is a zone of obligations and often no rights.
So it is a zone in which the state actually commits to a series of obligations
deriving from the duty to render assistance and the search and rescue convention.
It could me. To coordinate it, commits to cooperate, it commits to guarantee a minimum level of effectivity to the search and rescue services.
But it actually does not get on your right back.
It's not in a region that gives the states more rights to exercise any other type of activity, other legitimate uses off of the sea.
It is those functional, prescriptive and enforcement jurisdiction.
The state indeed has both and prescriptive and enforcement because it can regulate the way
in which the search and rescue services will take place in the search and rescue area.
And he has enforcement jurisdiction because it can intervene and organise and act.
But it is functional to the conduct of the duty to render assistance.
And that's it. And the search and rescue services.
And so I like to use the concept of deterrence or realisation of the jurisdiction in that context because it has nothing to do with the territory.
So it is indeed a functional exercise of the jurisdiction,
which is as which has no connexion whatsoever between the the exercise of the activity in a specific territory.
It is a voluntary commitment to exercise the specific activity, even though, of course,
the delimitation of the search and rescue zone has a territorial a geographical element,
which is that usually states have their Saras zone close to their coasts.
But I will show in a moment a map where you see that some states have very wide search and rescue zones, which are not.
Not anymore. That adjacent sea connexion and geographical connexion.
So the type of jurisdiction that it is recognised with those states in those area is not connected to the territory,
to the sovereignty exercised on the territory, because it is not a sovereignty.
So it is a purely functional zone. And this is a map that maybe some of you are quite familiar to.
This is how the oceans are kind of divided in Maritz in the search and rescue areas to guarantee the safety of navigation around the globe.
And what happened? Sorry.
Is it still sharing? Yes. OK. So it's only me.
Sorry, what did I do? I cannot see anymore.
Is it going on as it moved? No.
OK. Sorry, a seen shot. What did I think concurrently see the map as?
Oh yes. Here we go. I'm sorry, I have too many windows, I think open.
I find it again. I'm so sorry. So, you know.
OK. I think I know what is happening here.
Here we go here. This is a zoomin in the Mediterranean context, and you see also in confirmation to a certain extent,
the fact that this are not sovereignty zones, search and rescue zones can also overlap.
And there is no actually international rule prohibiting the overlap of those zones.
This can create, of course, problems from a practical point of view, because if you have two overlapping search and rescue zones,
then that might be a doubt on who is the state responsible at a certain moment and who
is supposed to coordinate an operation which is happening in that overlapping area.
But from a legal point of view, that is completely possible.
And this is confirmation of the fact that those are not territorial waters, but purely functional zones.
So how can in that context be executed, can how can a jurisdiction be exercised by a state?
And here I like to look at different factual scenarios, which are also, of course,
relying on real factual scenarios, unfortunately, that have happened over the years.
So a classic simple factual scenario is, well, one, the rescue operation is ended actually by taking on board the rescue people.
So on board of a state vessel, be it's the Coast Guard, for instance, or the Navy.
Then there is a clear jurisdictional link on the basis of the Law of the Sea,
exclusive jurisdiction of the flag state on the basis of Article ninety two of the Law of the Sea Convention.
And those only person on board of a vessel is submitted to the exclusive jurisdiction of that state.
And that was confirmed by the European Court of Human Rights in the here C case, again,
involving Italy, a decision of 2012 in which a unit of the Italian navy to come aboard,
indeed a group of migrants, and that was considered responsible for the breach of the principle of nobre formal.
Also because then it disembarked the people in Libya.
So this is the kind of easy factual scenario.
Because the people are onboard, we have a clear jurisdictional link and everything is more or less clear.
Then, of course, there can be different circumstances that might be debateable.
What happens in instances of non rescue or mismanagement, which is exactly what happened in the case that was examined by the Human Rights Committee.
So we do not have the people taking a boat. But at the same time,
we have a series of interactions or communications between the people in distress and the authorities which are
involved in the area and or more specifically in beginning and coordinating the search and rescue operation.
So if there is a distress call. If there is a distress call.
Well, on the basis of the search and rescue convention, also how on the basis of the amendments of 2004, this if the distress call happens,
we vale this a search and rescue region,
then the state of that search and rescue region will have primary responsibility to coordinate, cooperate and coordinate.
So, first of all, to actually perform the operation and then to find a place of safety.
That jurisdiction or those obligations are not done.
They do not imply that the state itself is supposed to perform the operation.
But again, the obligation is to cooperate and coordinate.
Where is the jurisdictional link here?
What I've argued in some of my writings previously is that from the moment in which there is a distress call from the from the people in distress,
the people in distress actually fall within the control of the state,
which receives the distress call because their survival actually is dependent on how the
state will react to the distress call and how it will coordinate the the operations.
So there is a sort of long distance, effective control where the decisions taken by the state which receives the
distress call will directly impact actually what will happen to those people.
And it's not something that's speculative, because if a state does not react to a distress call with,
well, almost 100 percent probability is that people will not be saved.
So there is a clear chain of causation here between what will happen to the people who sent a distress
call and the state which received the distress call and the way in which the state will react to that.
And this is included in the due diligence obligation, which stems from the duty to render assistance,
in particular how specified in the 2004 amendments to the Solus and the SAR conventions.
What happens if the distress call is sent from outside the search and rescue region of the state there?
It is unclear because actually the convention then does not specify what type of due diligence or obligation the states should have in those cases.
What we have is that this general obligation that we should, as you can see from the text,
which says state parties should arrange that their search and rescue services are
able to give prawns response to distress calls without any geographical limitation.
So here it doesn't say that a distress call should be launched from within the search and rescue region or not.
So this obligation applies also to distress calls lounged from outside the search and rescue region of the state.
But this should, of course, kind of diminish the content of the due diligence obligation that otherwise
we have when the same thing happens to within the search and rescue region.
And so there there is indeed a question mark on whether there is such a clear
jurisdictional link between the people who launched the distress call or not,
because there might also be within the search and rescue area off another state,
which would then have primary responsibility on the basis of the search and rescue of the search and rescue conventions.
However, the Human Rights Committee in its decisions, because this is exactly actually the factories in the area,
which had to be examined by the the committee said that there is a special relationship of dependency,
which has been established between the individuals which send a distress call and the state which received it.
In this case, the distress call was launched from the search and rescue zone of Malta.
And so Italy was invoking that Malta was the primary responsible here.
What the the committee said that without entering then into the possible responsibility of Malta.
Also for the mismanagement of all that. But what the committee said is that, yes, maybe Malta had primary responsibility.
But this does not exclude the fact that there was already a connexion with you who received the distress call.
Which means that not that Italy persay had necessity to go, but which means that you need to do something.
Your due diligence obligations are triggered by the distress call and you have at least to make sure that there is someone doing something.
So you have those cooperation obligations which are triggered by by this distress call.
And you have a sort of long distance, effective control,
because there the people are dependent on your behaviour, on your reaction to the distress call.
How does that impact the application of human rights and specifically of the right to life at sea?
Why the right to life?
Well, the right to life, mainly because it is the one closest to the principle of the safety of life at sea, which is a customary principle.
Again, a very old principle of law of the sea and maritime law, and also because the right to life is the right,
which also guarantees the conduct of emergency services in case of incident,
which imposes on the state positive obligations to make sure that the people under their door are under its jurisdiction.
It's safe. Also in cases of incident, also in cases of emergency.
The European Court of Human Rights has developed over the years quite established case law on
risk management and how states can be found in breach of the right to life when they know
or have or how to have known that there was a real immediate risk to life in a part of
territory in which is under it or in a factual situation which is under their jurisdiction.
This has been also discussed in relation to emergency services in the case of 2008.
That, again, also in the way in which a state organises emergency services.
So the possibility to reach situations of incident and emergency,
that is part of the due diligence obligations of the state to guarantee the right to life.
And this reasoning we find also in the committee decision of last month,
where the committee recalls how the right to life includes a noble legation for states to adopt any
appropriate laws and other measures in order to protect life from all reasonable foreseeable threats.
And that the due diligence. Require taking reasonable positive measures that do not impose disproportionate burdens, of course, on states.
So the fact of organising also services.
And why is it relevant here? Because the Mediterranean route for migrants, instances of distress in those areas are actually quite well known.
There are also foreseeable. There are not. The states involved in the coastal states know that those are migratory routes.
So you know that in some instances of distress will happen at certain points.
So and that kind of sense, your due diligence obligation,
if you know that a part of your territory or of an area which is under your control should be well in that area.
There might be instances of emergency. You are suppose to prepare yourself.
Again, you cannot prevent all incidents. You cannot prevent the loss of lives 100 percent.
But you have to be ready in the way in which you react to it.
And this is exactly what Italy failed to do.
It took too long to respond. The distress call. It mismanaged the coordination of the units which were in the area.
It took too long to communicate with Malta and so on.
And that what was then thought as a breach of the right to life.
In this case. So to conclude, as I said,
I think this case is interesting because it finally recognised that the reason a right
to be of rescue at sea and contrary to the dissenting members of the committee,
I think it has a series of advantages, this approach, the dysfunctional approach adopted by the committee.
First of all, it clarifies the jurisdictional link between the individuals in distress or lost at sea.
And the states involved in the operation. And not only the state and would serve search and rescue area.
The. The distress call was launched, but also all the states which might be involved from the flag state off the vessel of the private vessel,
intervening to the other vessels, state vessels, which might give some support to the operation.
It also clarifies the content, the content of the duty to render assistance.
It details the due diligence obligations of the states in port.
And not only and in particular, it makes clear that, yes, of course,
the state might have a primary obligation, but it's not an exclusive responsibility,
which has already been, which is in a way already clear from the search and rescue convention,
but which has been debated quite extensively by the states. And this is this clarifies what it is like.
Well, yes, the SA state will have its own responsibility. But you still have a responsibility.
You still have an obligation of due diligence. You're not excused by the primary responsibility of the coastal state.
And it also clarifies how effective control can be construed in relation to obligations of
conduct in areas which are not directly submitted to the territorial jurisdiction of the state.
So which are the territorial lies? And lastly, I think that it doesn't disrupt the legal order created by the Solus and the SAR conventions,
but actually it clarifies and Fransen that because I think also for the states involved,
it makes it clearer what they are supposed to do and when maybe they.
Well, it makes clear that they have to do more. That's for sure. But it is still a welcome outcome, I think.