1 00:00:00,030 --> 00:00:09,570 Always a pleasure and an honour to be part of this group and to have the opportunity to exchange with so many people. 2 00:00:09,570 --> 00:00:13,160 And and I see many familiar names and faces. 3 00:00:13,160 --> 00:00:17,680 It's very nice. And I look forward to your questions. 4 00:00:17,680 --> 00:00:21,510 But without further ado, I will share my screen with you. 5 00:00:21,510 --> 00:00:28,980 And my presentation of today say. 6 00:00:28,980 --> 00:00:33,480 Is yes, it's shared. Right? Yes. OK, perfect. 7 00:00:33,480 --> 00:00:42,780 So in the next half an hour, 40 minutes, I would like to discuss the recognition of the right to be rescue at sea. 8 00:00:42,780 --> 00:00:53,010 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. 9 00:00:53,010 --> 00:00:56,910 But then just a month ago or less than men, 10 00:00:56,910 --> 00:01:09,280 that the Human Rights Committee adopted this decision on a case involving Italy and Malta concerning their army's mass mismanagement, 11 00:01:09,280 --> 00:01:13,980 base management, sorry, office search and rescue operation. 12 00:01:13,980 --> 00:01:19,860 And then has well, you have heard from Natasha, introduction, 13 00:01:19,860 --> 00:01:27,450 immigration and Search and Rescue Services is one of my lines of research is a theme that is very close to my heart, 14 00:01:27,450 --> 00:01:33,420 which goes back to my feet, actually paces. And then reading the the the decision. 15 00:01:33,420 --> 00:01:41,760 I thought, oh, there are so many aspects concerning in particular jurisdiction and how we frame jurisdiction in the law of the sea and 16 00:01:41,760 --> 00:01:50,310 in human rights and more generally in international law that we can actually discuss on the basis of this decision. 17 00:01:50,310 --> 00:01:58,020 And also, it is the first decision in which there is a clear affirmation and recognition 18 00:01:58,020 --> 00:02:05,400 of what can be considered a right to be rescue at sea by an international body. 19 00:02:05,400 --> 00:02:16,140 So for those of you who haven't had the chance to read the decision, I copy and paste it here. 20 00:02:16,140 --> 00:02:23,100 Two of the main passages, paragraphs of the decision, one, 21 00:02:23,100 --> 00:02:33,840 which is the one where the committee actually recognises that the Italian authority where exercising jurisdiction so that the 22 00:02:33,840 --> 00:02:43,740 individuals on the vessels which were in distress were directly affected by the decisions taken by the authority and authorities. 23 00:02:43,740 --> 00:02:54,030 And on the basis of that, the committee construed the jurisdictional link between the Italian authorities and the people on board of those vessels. 24 00:02:54,030 --> 00:03:03,810 And the second part way the committee actually recognises that there is a violation 25 00:03:03,810 --> 00:03:11,490 of the right to life because of a failure in responding to the distress call. 26 00:03:11,490 --> 00:03:17,440 So here the construction of the breach of the right to life on the basis of a conduct. 27 00:03:17,440 --> 00:03:25,600 So how what is the threshold for the breach of due diligence obligation? 28 00:03:25,600 --> 00:03:34,950 Has is the one of render assistance. And this is a clarification also brought by this decision. 29 00:03:34,950 --> 00:03:42,840 The committee adopts a very clear functional approach to jurisdiction in this decision. 30 00:03:42,840 --> 00:03:56,340 So construing the effective control over the individuals on the basis of the exercise of functional powers by Italy, specifically in this decision. 31 00:03:56,340 --> 00:04:03,210 And the function and functional dimension of jurisdiction is argued on the basis of the law of the sea, 32 00:04:03,210 --> 00:04:10,080 specifically of those soldiers, as the safety of life at sea and the search and rescue convention. 33 00:04:10,080 --> 00:04:18,560 This approach, however, was not shared by all the members of the committee and in particular of three members of the committee. 34 00:04:18,560 --> 00:04:25,260 Highly agreed with the functional approach adopted by the majority, 35 00:04:25,260 --> 00:04:39,120 in particular invoking a disruption of the system created by the two conventions, the solar and the soulless and the SAA convention. 36 00:04:39,120 --> 00:04:51,660 And also that invoking or sort of confusion may be created also by this approach when international law or read the basic needs, 37 00:04:51,660 --> 00:04:59,610 which is the state responsible. And so which is the state which has jurisdiction. 38 00:04:59,610 --> 00:05:07,950 When I read this dissenting opinion by this eminent eminent members of the of the committee, 39 00:05:07,950 --> 00:05:12,960 I thought this thinking as well about whether there was some ground there, 40 00:05:12,960 --> 00:05:15,450 whether indeed this functional approach, 41 00:05:15,450 --> 00:05:29,370 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. 42 00:05:29,370 --> 00:05:38,280 Is there indeed a disadvantage for the system which was created by the Solus and the SA conventions? 43 00:05:38,280 --> 00:05:45,420 Is there really disrupting? What were the main objectives of the conventions? 44 00:05:45,420 --> 00:05:52,230 And that's what I want to discuss with you in the coming half an hour. 45 00:05:52,230 --> 00:06:03,420 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, 46 00:06:03,420 --> 00:06:11,640 the legal order created by these two conventions, and that actually the recognition of her right to be rescued is, 47 00:06:11,640 --> 00:06:21,630 in my view, welcome, because it clarifies actually some of the obligations which are in the conventions 48 00:06:21,630 --> 00:06:30,030 and it in particular clarifies the sharing of the burden of those obligations. 49 00:06:30,030 --> 00:06:38,700 In practical situations and in order to convince you of that, will then follow four steps. 50 00:06:38,700 --> 00:06:41,940 One. First of all, I will introduce a very briefly, 51 00:06:41,940 --> 00:06:51,840 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? 52 00:06:51,840 --> 00:07:04,920 Then I will focus on the exercise of jurisdiction in SAR operations and in that in light also of the decision adopted in January. 53 00:07:04,920 --> 00:07:16,440 And then what is the how can the right to life be applied in the SAA context and in which way? 54 00:07:16,440 --> 00:07:24,570 Also, it influences actually the behaviour of states involved in Surrell operations and then to 55 00:07:24,570 --> 00:07:33,720 conclude that it is a welcome outcome of this decision of the Human Rights Committee. 56 00:07:33,720 --> 00:07:39,720 So first of all, the duty to render assistance. I know that some of you are quite familiar with it, 57 00:07:39,720 --> 00:07:49,020 and I apologise if I repeat things that are maybe a bit boring for you, but I guess not everybody's familiar. 58 00:07:49,020 --> 00:07:56,610 So I will just introduce very briefly the main instruments and the main obligations. 59 00:07:56,610 --> 00:08:05,970 Article 98 of the Law of the Sea Convention affirms the right to read the duty to render assistance. 60 00:08:05,970 --> 00:08:10,080 And you see here the draughting of Article 98, 61 00:08:10,080 --> 00:08:19,950 where every state shall require the master of a ship flying its flag to render assistance to any person found 62 00:08:19,950 --> 00:08:27,960 at sea in danger of being lost or to proceed with all possible speed to the rescue of persons in distress. 63 00:08:27,960 --> 00:08:41,420 If informed of their need of assistance. So here the distinction is between two factual situations when there has been indeed distress call. 64 00:08:41,420 --> 00:08:53,450 And so the authorities and events or the merchant vessel which receives the call is informed of a situation of distress. 65 00:08:53,450 --> 00:09:00,410 And then the first setu duration, which is paragraph A, when actually there was no distress call. 66 00:09:00,410 --> 00:09:10,280 But some persons in danger of found at sea. So the obligation to render assistance applies in both situations. 67 00:09:10,280 --> 00:09:14,990 There is not a duty only when we receive a request. 68 00:09:14,990 --> 00:09:24,300 But there is a general duty to render assistance even when there is no specific request by the people in danger. 69 00:09:24,300 --> 00:09:33,720 This obligation, you will find it in the part of the Law of the Sea Convention, which regulates the high seas regime. 70 00:09:33,720 --> 00:09:43,020 However, it is also a rule of customary international law when it is recognised and accepted as rule of customer international. 71 00:09:43,020 --> 00:09:47,160 And it is considered to be applicable in all maritime zones. 72 00:09:47,160 --> 00:09:56,010 And this is indirectly confirmed also by the Law of the Sea Convention itself in Article 18, paragraph two, 73 00:09:56,010 --> 00:10:00,870 which concerns the regime of the territorial sea and specifically the conditions 74 00:10:00,870 --> 00:10:07,020 for the exercise of the right of innocent passage where innocent passage, 75 00:10:07,020 --> 00:10:13,770 which is usually continues, can actually be interrupted. 76 00:10:13,770 --> 00:10:22,380 So there can be stopping or anchoring when it is to render assistance to persons in need. 77 00:10:22,380 --> 00:10:28,080 So the duty to render assistance as a circumstance, 78 00:10:28,080 --> 00:10:37,230 precluding the responsibility of a foreign vessel for breaching the conditions of exercise of the right of innocent passage. 79 00:10:37,230 --> 00:10:47,250 And this confirms the application of the duty to render assistance in all the maritime zones, including the territorial sea. 80 00:10:47,250 --> 00:10:56,550 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. 81 00:10:56,550 --> 00:11:02,670 It is a principle which is way older than the Law of the Sea Convention. 82 00:11:02,670 --> 00:11:08,160 Actually, some of you are interested. There are some historical work which has been done, 83 00:11:08,160 --> 00:11:17,610 and they said that there are some writings already from ancient Greece and ancient Rome in which that principle 84 00:11:17,610 --> 00:11:29,670 was invoked already as applicable to all or in all all seas and for all vessels involved in navigation. 85 00:11:29,670 --> 00:11:36,630 That principle, whether it's, as I said, a general principle which applies to all vessels, 86 00:11:36,630 --> 00:11:48,240 and it appears quite soon that in order to have an efficient system of rescue, then we need also cooperation. 87 00:11:48,240 --> 00:11:56,940 And that emerged well with the increase of navigation, with the increase of the human presence at sea. 88 00:11:56,940 --> 00:12:10,050 Well, of course, you have more instances of distress for danger and then also with actually the 89 00:12:10,050 --> 00:12:20,400 first migrant migratory flows by sea and indeed the search and rescue cooperation. 90 00:12:20,400 --> 00:12:27,510 So the search and rescue convention was adopted in nineteen seventy nine, 91 00:12:27,510 --> 00:12:36,840 which is after years already of problems concerning actually instances of non 92 00:12:36,840 --> 00:12:45,690 assistance in the Southeast Asia area along the coast of Vietnam and Cambodia, 93 00:12:45,690 --> 00:12:52,770 which were where many people were trying to flee from those countries through to on the one hand, 94 00:12:52,770 --> 00:12:58,350 the Vietnam War and on the other hand, the Khmer Rouge in Cambodia. 95 00:12:58,350 --> 00:13:07,870 And in those with those first. Mass mass migration, migratory flows by sea. 96 00:13:07,870 --> 00:13:13,270 It became quite evident that there was a problem of coordination and cooperation, 97 00:13:13,270 --> 00:13:22,210 because if everybody all the states involved and also the vessels, the merchant vessels all agreed that there was this duty to render assistance. 98 00:13:22,210 --> 00:13:29,470 Then it was less clear what to do with the persons once they were rescued. 99 00:13:29,470 --> 00:13:37,030 And which of the states of the area was the one in charge for coordinating 100 00:13:37,030 --> 00:13:43,870 eventually the operations and deciding what would happen to those people rescued. 101 00:13:43,870 --> 00:13:53,530 So the SAA convention, the search and rescue convention adopted in 1979, was really a corporation convention. 102 00:13:53,530 --> 00:14:00,340 So to organise a system of coordination and cooperation amongst states in order 103 00:14:00,340 --> 00:14:07,660 to guarantee a minimum level of effectivity to search and rescue services. 104 00:14:07,660 --> 00:14:22,990 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. 105 00:14:22,990 --> 00:14:27,580 And here I focus on Article three, paragraph one nine, 106 00:14:27,580 --> 00:14:35,170 because the main issue that was already in the 70s and that we unfortunately still have nowadays, 107 00:14:35,170 --> 00:14:44,020 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. 108 00:14:44,020 --> 00:14:51,760 So, again, what to do with the though the people once they are rescued? 109 00:14:51,760 --> 00:15:01,540 And here I don't choose on purpose the three the term migrant because this system applies to everybody. 110 00:15:01,540 --> 00:15:13,300 So it is not the search and rescue convention and the Solus convention were not conventions adopted to hand for handling migratory flows. 111 00:15:13,300 --> 00:15:21,190 But there were conventions created in order to Hannan's the safety of life at sea to make 112 00:15:21,190 --> 00:15:28,750 sure that anyone who is in danger or in distress will receive some sort of assistance. 113 00:15:28,750 --> 00:15:34,840 Of course, no one pretends that states save 100 percent of the life at sea. 114 00:15:34,840 --> 00:15:37,270 This is impossible. Let's be clear. 115 00:15:37,270 --> 00:15:50,530 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. 116 00:15:50,530 --> 00:15:56,950 And the main issue of contention was what to do with the people rescued. 117 00:15:56,950 --> 00:16:06,130 Once they're rescued, in particular, if there are migrants, irregular migrants or potential asylum seekers, 118 00:16:06,130 --> 00:16:13,060 that issue emerged right away after the adoption of the convention in 79. 119 00:16:13,060 --> 00:16:18,460 It was already one of the issues around the coasts of Vietnam and Cambodia. 120 00:16:18,460 --> 00:16:25,960 It continued to be an issue later on, also in the 90s and in the beginning 2000. 121 00:16:25,960 --> 00:16:31,240 Many of you are aware, with many instances of ports closing, 122 00:16:31,240 --> 00:16:41,800 refusing the disembarkation of vessels which had just rescued irregular migrants in the Mediterranean or in the ocean in the Atlantic Ocean, 123 00:16:41,800 --> 00:16:46,940 along the coast of the Canary Islands. So in 2004, 124 00:16:46,940 --> 00:16:54,280 the some amendments to the SAA and SOLARS convention conventions were adopted in 125 00:16:54,280 --> 00:17:01,960 order to hopefully clarify this division of labour between the states involved. 126 00:17:01,960 --> 00:17:09,340 And one obligation, which was to clarify is this obligation to coordinate and cooperate, 127 00:17:09,340 --> 00:17:15,010 to ensure that the masters of ships providing assistance are released from their 128 00:17:15,010 --> 00:17:19,960 obligations with minimum further deviation from the ship's intended flight. 129 00:17:19,960 --> 00:17:32,380 So the idea that states, even if the rescue actually was performed by a private vessel, which happens quite regularly, 130 00:17:32,380 --> 00:17:45,520 then even in those instances the states had the primary responsibility and should take over the service which was performed by the private vessel. 131 00:17:45,520 --> 00:17:58,090 Moreover, the state party in whose search and rescue region the the operation took place 132 00:17:58,090 --> 00:18:05,890 would have the primary responsibility to ensure that coordination and cooperation. 133 00:18:05,890 --> 00:18:19,020 And that then on the basis of that coordination and cooperation, the people will be delivered to a place of safety. 134 00:18:19,020 --> 00:18:28,410 In all cases, all the relevant parties shall arrange for such disembarkation to be effective as soon as reasonably practicable. 135 00:18:28,410 --> 00:18:33,390 So not only the search and rescue state, but all the relevant parties. 136 00:18:33,390 --> 00:18:38,940 Which means eventually also other states which have been involved in the operation, 137 00:18:38,940 --> 00:18:47,310 but also the flag state of the vessel, the private vessel, for instance, which rescued the people. 138 00:18:47,310 --> 00:18:54,340 So all the parties involved should be cooperating and coordinating the first of all, 139 00:18:54,340 --> 00:19:04,070 the identification of the place of safety and then the disembarkation in a place of safety. 140 00:19:04,070 --> 00:19:16,080 Those amendments actually were adopted with some debates, in particular the search at the coastal states, some causes, 141 00:19:16,080 --> 00:19:23,090 they thought that that would put too much pressure and responsibility on coastal states with 142 00:19:23,090 --> 00:19:30,650 this primary obligation of the search and rescue state and indeed in the Mediterranean context, 143 00:19:30,650 --> 00:19:41,760 not all Mediterranean states have indeed ratified goes amendments and. 144 00:19:41,760 --> 00:19:51,270 Some of the key concepts that are using and introduced by those amendments also actually steered quite a bit of debate. 145 00:19:51,270 --> 00:20:00,480 And notwithstanding the fact that the AM, which was the international organisation competent for those amendments, 146 00:20:00,480 --> 00:20:05,550 tried to clarify those concepts as much as possible. 147 00:20:05,550 --> 00:20:11,250 The main concept, which was debated and still debated, is while the place of safety. 148 00:20:11,250 --> 00:20:19,070 What is a place of safety? What are the criteria for the determination of the place of safety? 149 00:20:19,070 --> 00:20:31,530 And generally, the the threshold is that the place of safety is the place in which the rescue operations is considered completed. 150 00:20:31,530 --> 00:20:35,100 But what is safe and how did you do? 151 00:20:35,100 --> 00:20:43,230 Do you determine the safety? Is it enough that the livelihood so the survival is guaranteed of the people? 152 00:20:43,230 --> 00:20:50,070 Or are there other guarantees maybe on an individual basis that should be taken 153 00:20:50,070 --> 00:20:56,790 into account when authorising the disembarkation on this specific territory? 154 00:20:56,790 --> 00:21:10,650 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, 155 00:21:10,650 --> 00:21:17,070 where there was a very tight cooperation between the UNHCR and the valuable cooperation, 156 00:21:17,070 --> 00:21:23,310 which was also actually existing prior the amendments of 2004. 157 00:21:23,310 --> 00:21:36,750 Already in the 70s and in the 80s, the two organisations had closely cooperated for the in achievement of actually migratory flows by sea. 158 00:21:36,750 --> 00:21:46,860 And they together we have now a 2015 version of this principles. 159 00:21:46,860 --> 00:21:56,340 Where do some criteria deriving from refugee law and human rights are indicated to help 160 00:21:56,340 --> 00:22:04,170 the states and to help the ship masters to actually identify the place of safety? 161 00:22:04,170 --> 00:22:08,490 But not withstanding that the issue of disembarkation continued. 162 00:22:08,490 --> 00:22:15,500 It still is a big issue and it was discussed there again in 2009. 163 00:22:15,500 --> 00:22:34,650 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. 164 00:22:34,650 --> 00:22:46,660 This is to give you a bit of an introduction of the main instruments and the core obligations stemming from those those instruments. 165 00:22:46,660 --> 00:22:51,000 And now I would like just to focus more precisely on the concept of jurisdiction, 166 00:22:51,000 --> 00:22:58,020 which is really key here, because, of course, if we are talking about the recognition of a right, 167 00:22:58,020 --> 00:23:02,580 we need to make sure that there is exercise of jurisdiction by a state which 168 00:23:02,580 --> 00:23:11,320 will guarantee the right and which will have eventually some responsibility. 169 00:23:11,320 --> 00:23:15,360 If that's right, is not is breached. So that that that's right. 170 00:23:15,360 --> 00:23:22,980 Is not complied with. The difficulty in assessing the exercise of jurisdiction in search and rescue, 171 00:23:22,980 --> 00:23:33,360 in the search and rescue context is that actually the search and rescue regions, search and rescue zones are not sovereignty shelters. 172 00:23:33,360 --> 00:23:41,770 So it is not like they in the territorial sea where you have a presumption of exercise, of jurisdiction of the coastal states. 173 00:23:41,770 --> 00:23:42,480 OK, 174 00:23:42,480 --> 00:23:55,170 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, 175 00:23:55,170 --> 00:24:00,660 which might happen in that area may be performed by someone else. 176 00:24:00,660 --> 00:24:08,910 And the fact that is not a sovereignty zone, this is clearly also confirmed by the SA convention itself, 177 00:24:08,910 --> 00:24:13,170 which says that the delimitation of search and rescue regions is not related 178 00:24:13,170 --> 00:24:17,770 to and should not prejudice the delimitation of any boundary between states. 179 00:24:17,770 --> 00:24:25,050 So it has nothing to do with normal territorial delimitation. 180 00:24:25,050 --> 00:24:30,030 And I like to say that it is a zone of obligations and often no rights. 181 00:24:30,030 --> 00:24:36,180 So it is a zone in which the state actually commits to a series of obligations 182 00:24:36,180 --> 00:24:40,200 deriving from the duty to render assistance and the search and rescue convention. 183 00:24:40,200 --> 00:24:52,590 It could me. To coordinate it, commits to cooperate, it commits to guarantee a minimum level of effectivity to the search and rescue services. 184 00:24:52,590 --> 00:24:56,610 But it actually does not get on your right back. 185 00:24:56,610 --> 00:25:10,590 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. 186 00:25:10,590 --> 00:25:15,240 It is those functional, prescriptive and enforcement jurisdiction. 187 00:25:15,240 --> 00:25:21,270 The state indeed has both and prescriptive and enforcement because it can regulate the way 188 00:25:21,270 --> 00:25:27,780 in which the search and rescue services will take place in the search and rescue area. 189 00:25:27,780 --> 00:25:34,500 And he has enforcement jurisdiction because it can intervene and organise and act. 190 00:25:34,500 --> 00:25:40,770 But it is functional to the conduct of the duty to render assistance. 191 00:25:40,770 --> 00:25:45,070 And that's it. And the search and rescue services. 192 00:25:45,070 --> 00:25:55,830 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. 193 00:25:55,830 --> 00:26:01,780 So it is indeed a functional exercise of the jurisdiction, 194 00:26:01,780 --> 00:26:13,690 which is as which has no connexion whatsoever between the the exercise of the activity in a specific territory. 195 00:26:13,690 --> 00:26:23,690 It is a voluntary commitment to exercise the specific activity, even though, of course, 196 00:26:23,690 --> 00:26:30,940 the delimitation of the search and rescue zone has a territorial a geographical element, 197 00:26:30,940 --> 00:26:35,770 which is that usually states have their Saras zone close to their coasts. 198 00:26:35,770 --> 00:26:46,150 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. 199 00:26:46,150 --> 00:26:52,660 Not anymore. That adjacent sea connexion and geographical connexion. 200 00:26:52,660 --> 00:27:01,510 So the type of jurisdiction that it is recognised with those states in those area is not connected to the territory, 201 00:27:01,510 --> 00:27:05,980 to the sovereignty exercised on the territory, because it is not a sovereignty. 202 00:27:05,980 --> 00:27:15,340 So it is a purely functional zone. And this is a map that maybe some of you are quite familiar to. 203 00:27:15,340 --> 00:27:26,980 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. 204 00:27:26,980 --> 00:27:33,470 And what happened? Sorry. 205 00:27:33,470 --> 00:27:37,640 Is it still sharing? Yes. OK. So it's only me. 206 00:27:37,640 --> 00:27:43,160 Sorry, what did I do? I cannot see anymore. 207 00:27:43,160 --> 00:27:48,060 Is it going on as it moved? No. 208 00:27:48,060 --> 00:27:52,540 OK. Sorry, a seen shot. What did I think concurrently see the map as? 209 00:27:52,540 --> 00:27:57,780 Oh yes. Here we go. I'm sorry, I have too many windows, I think open. 210 00:27:57,780 --> 00:28:06,170 I find it again. I'm so sorry. So, you know. 211 00:28:06,170 --> 00:28:13,680 OK. I think I know what is happening here. 212 00:28:13,680 --> 00:28:26,480 Here we go here. This is a zoomin in the Mediterranean context, and you see also in confirmation to a certain extent, 213 00:28:26,480 --> 00:28:33,330 the fact that this are not sovereignty zones, search and rescue zones can also overlap. 214 00:28:33,330 --> 00:28:41,970 And there is no actually international rule prohibiting the overlap of those zones. 215 00:28:41,970 --> 00:28:49,470 This can create, of course, problems from a practical point of view, because if you have two overlapping search and rescue zones, 216 00:28:49,470 --> 00:28:56,230 then that might be a doubt on who is the state responsible at a certain moment and who 217 00:28:56,230 --> 00:29:03,750 is supposed to coordinate an operation which is happening in that overlapping area. 218 00:29:03,750 --> 00:29:09,600 But from a legal point of view, that is completely possible. 219 00:29:09,600 --> 00:29:17,990 And this is confirmation of the fact that those are not territorial waters, but purely functional zones. 220 00:29:17,990 --> 00:29:27,910 So how can in that context be executed, can how can a jurisdiction be exercised by a state? 221 00:29:27,910 --> 00:29:33,950 And here I like to look at different factual scenarios, which are also, of course, 222 00:29:33,950 --> 00:29:40,460 relying on real factual scenarios, unfortunately, that have happened over the years. 223 00:29:40,460 --> 00:29:55,250 So a classic simple factual scenario is, well, one, the rescue operation is ended actually by taking on board the rescue people. 224 00:29:55,250 --> 00:30:02,240 So on board of a state vessel, be it's the Coast Guard, for instance, or the Navy. 225 00:30:02,240 --> 00:30:06,320 Then there is a clear jurisdictional link on the basis of the Law of the Sea, 226 00:30:06,320 --> 00:30:13,250 exclusive jurisdiction of the flag state on the basis of Article ninety two of the Law of the Sea Convention. 227 00:30:13,250 --> 00:30:20,720 And those only person on board of a vessel is submitted to the exclusive jurisdiction of that state. 228 00:30:20,720 --> 00:30:26,990 And that was confirmed by the European Court of Human Rights in the here C case, again, 229 00:30:26,990 --> 00:30:35,870 involving Italy, a decision of 2012 in which a unit of the Italian navy to come aboard, 230 00:30:35,870 --> 00:30:44,990 indeed a group of migrants, and that was considered responsible for the breach of the principle of nobre formal. 231 00:30:44,990 --> 00:30:49,140 Also because then it disembarked the people in Libya. 232 00:30:49,140 --> 00:30:52,130 So this is the kind of easy factual scenario. 233 00:30:52,130 --> 00:31:00,200 Because the people are onboard, we have a clear jurisdictional link and everything is more or less clear. 234 00:31:00,200 --> 00:31:06,560 Then, of course, there can be different circumstances that might be debateable. 235 00:31:06,560 --> 00:31:20,600 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. 236 00:31:20,600 --> 00:31:25,370 So we do not have the people taking a boat. But at the same time, 237 00:31:25,370 --> 00:31:35,120 we have a series of interactions or communications between the people in distress and the authorities which are 238 00:31:35,120 --> 00:31:44,630 involved in the area and or more specifically in beginning and coordinating the search and rescue operation. 239 00:31:44,630 --> 00:31:50,000 So if there is a distress call. If there is a distress call. 240 00:31:50,000 --> 00:32:04,040 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, 241 00:32:04,040 --> 00:32:07,550 we vale this a search and rescue region, 242 00:32:07,550 --> 00:32:17,720 then the state of that search and rescue region will have primary responsibility to coordinate, cooperate and coordinate. 243 00:32:17,720 --> 00:32:26,620 So, first of all, to actually perform the operation and then to find a place of safety. 244 00:32:26,620 --> 00:32:34,540 That jurisdiction or those obligations are not done. 245 00:32:34,540 --> 00:32:41,140 They do not imply that the state itself is supposed to perform the operation. 246 00:32:41,140 --> 00:32:47,160 But again, the obligation is to cooperate and coordinate. 247 00:32:47,160 --> 00:32:50,520 Where is the jurisdictional link here? 248 00:32:50,520 --> 00:33:02,250 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, 249 00:33:02,250 --> 00:33:09,120 the people in distress actually fall within the control of the state, 250 00:33:09,120 --> 00:33:16,050 which receives the distress call because their survival actually is dependent on how the 251 00:33:16,050 --> 00:33:24,090 state will react to the distress call and how it will coordinate the the operations. 252 00:33:24,090 --> 00:33:34,260 So there is a sort of long distance, effective control where the decisions taken by the state which receives the 253 00:33:34,260 --> 00:33:40,710 distress call will directly impact actually what will happen to those people. 254 00:33:40,710 --> 00:33:49,410 And it's not something that's speculative, because if a state does not react to a distress call with, 255 00:33:49,410 --> 00:33:55,100 well, almost 100 percent probability is that people will not be saved. 256 00:33:55,100 --> 00:34:06,020 So there is a clear chain of causation here between what will happen to the people who sent a distress 257 00:34:06,020 --> 00:34:12,980 call and the state which received the distress call and the way in which the state will react to that. 258 00:34:12,980 --> 00:34:21,050 And this is included in the due diligence obligation, which stems from the duty to render assistance, 259 00:34:21,050 --> 00:34:28,220 in particular how specified in the 2004 amendments to the Solus and the SAR conventions. 260 00:34:28,220 --> 00:34:36,560 What happens if the distress call is sent from outside the search and rescue region of the state there? 261 00:34:36,560 --> 00:34:50,150 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. 262 00:34:50,150 --> 00:34:57,320 What we have is that this general obligation that we should, as you can see from the text, 263 00:34:57,320 --> 00:35:03,320 which says state parties should arrange that their search and rescue services are 264 00:35:03,320 --> 00:35:10,820 able to give prawns response to distress calls without any geographical limitation. 265 00:35:10,820 --> 00:35:17,900 So here it doesn't say that a distress call should be launched from within the search and rescue region or not. 266 00:35:17,900 --> 00:35:28,130 So this obligation applies also to distress calls lounged from outside the search and rescue region of the state. 267 00:35:28,130 --> 00:35:36,920 But this should, of course, kind of diminish the content of the due diligence obligation that otherwise 268 00:35:36,920 --> 00:35:43,740 we have when the same thing happens to within the search and rescue region. 269 00:35:43,740 --> 00:35:52,850 And so there there is indeed a question mark on whether there is such a clear 270 00:35:52,850 --> 00:35:57,860 jurisdictional link between the people who launched the distress call or not, 271 00:35:57,860 --> 00:36:04,010 because there might also be within the search and rescue area off another state, 272 00:36:04,010 --> 00:36:15,260 which would then have primary responsibility on the basis of the search and rescue of the search and rescue conventions. 273 00:36:15,260 --> 00:36:22,880 However, the Human Rights Committee in its decisions, because this is exactly actually the factories in the area, 274 00:36:22,880 --> 00:36:31,880 which had to be examined by the the committee said that there is a special relationship of dependency, 275 00:36:31,880 --> 00:36:38,690 which has been established between the individuals which send a distress call and the state which received it. 276 00:36:38,690 --> 00:36:47,180 In this case, the distress call was launched from the search and rescue zone of Malta. 277 00:36:47,180 --> 00:36:54,710 And so Italy was invoking that Malta was the primary responsible here. 278 00:36:54,710 --> 00:37:04,190 What the the committee said that without entering then into the possible responsibility of Malta. 279 00:37:04,190 --> 00:37:13,190 Also for the mismanagement of all that. But what the committee said is that, yes, maybe Malta had primary responsibility. 280 00:37:13,190 --> 00:37:22,610 But this does not exclude the fact that there was already a connexion with you who received the distress call. 281 00:37:22,610 --> 00:37:34,310 Which means that not that Italy persay had necessity to go, but which means that you need to do something. 282 00:37:34,310 --> 00:37:44,450 Your due diligence obligations are triggered by the distress call and you have at least to make sure that there is someone doing something. 283 00:37:44,450 --> 00:37:51,590 So you have those cooperation obligations which are triggered by by this distress call. 284 00:37:51,590 --> 00:37:56,810 And you have a sort of long distance, effective control, 285 00:37:56,810 --> 00:38:06,570 because there the people are dependent on your behaviour, on your reaction to the distress call. 286 00:38:06,570 --> 00:38:17,880 How does that impact the application of human rights and specifically of the right to life at sea? 287 00:38:17,880 --> 00:38:19,830 Why the right to life? 288 00:38:19,830 --> 00:38:32,190 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. 289 00:38:32,190 --> 00:38:42,660 Again, a very old principle of law of the sea and maritime law, and also because the right to life is the right, 290 00:38:42,660 --> 00:38:51,930 which also guarantees the conduct of emergency services in case of incident, 291 00:38:51,930 --> 00:39:03,090 which imposes on the state positive obligations to make sure that the people under their door are under its jurisdiction. 292 00:39:03,090 --> 00:39:10,500 It's safe. Also in cases of incident, also in cases of emergency. 293 00:39:10,500 --> 00:39:17,520 The European Court of Human Rights has developed over the years quite established case law on 294 00:39:17,520 --> 00:39:25,920 risk management and how states can be found in breach of the right to life when they know 295 00:39:25,920 --> 00:39:33,750 or have or how to have known that there was a real immediate risk to life in a part of 296 00:39:33,750 --> 00:39:41,940 territory in which is under it or in a factual situation which is under their jurisdiction. 297 00:39:41,940 --> 00:39:51,000 This has been also discussed in relation to emergency services in the case of 2008. 298 00:39:51,000 --> 00:39:59,880 That, again, also in the way in which a state organises emergency services. 299 00:39:59,880 --> 00:40:06,930 So the possibility to reach situations of incident and emergency, 300 00:40:06,930 --> 00:40:15,150 that is part of the due diligence obligations of the state to guarantee the right to life. 301 00:40:15,150 --> 00:40:22,470 And this reasoning we find also in the committee decision of last month, 302 00:40:22,470 --> 00:40:30,690 where the committee recalls how the right to life includes a noble legation for states to adopt any 303 00:40:30,690 --> 00:40:38,700 appropriate laws and other measures in order to protect life from all reasonable foreseeable threats. 304 00:40:38,700 --> 00:40:48,930 And that the due diligence. Require taking reasonable positive measures that do not impose disproportionate burdens, of course, on states. 305 00:40:48,930 --> 00:40:53,610 So the fact of organising also services. 306 00:40:53,610 --> 00:41:07,230 And why is it relevant here? Because the Mediterranean route for migrants, instances of distress in those areas are actually quite well known. 307 00:41:07,230 --> 00:41:16,830 There are also foreseeable. There are not. The states involved in the coastal states know that those are migratory routes. 308 00:41:16,830 --> 00:41:25,000 So you know that in some instances of distress will happen at certain points. 309 00:41:25,000 --> 00:41:30,480 So and that kind of sense, your due diligence obligation, 310 00:41:30,480 --> 00:41:41,610 if you know that a part of your territory or of an area which is under your control should be well in that area. 311 00:41:41,610 --> 00:41:47,960 There might be instances of emergency. You are suppose to prepare yourself. 312 00:41:47,960 --> 00:41:54,660 Again, you cannot prevent all incidents. You cannot prevent the loss of lives 100 percent. 313 00:41:54,660 --> 00:41:58,920 But you have to be ready in the way in which you react to it. 314 00:41:58,920 --> 00:42:03,060 And this is exactly what Italy failed to do. 315 00:42:03,060 --> 00:42:11,790 It took too long to respond. The distress call. It mismanaged the coordination of the units which were in the area. 316 00:42:11,790 --> 00:42:15,600 It took too long to communicate with Malta and so on. 317 00:42:15,600 --> 00:42:22,950 And that what was then thought as a breach of the right to life. 318 00:42:22,950 --> 00:42:28,410 In this case. So to conclude, as I said, 319 00:42:28,410 --> 00:42:34,770 I think this case is interesting because it finally recognised that the reason a right 320 00:42:34,770 --> 00:42:42,180 to be of rescue at sea and contrary to the dissenting members of the committee, 321 00:42:42,180 --> 00:42:50,730 I think it has a series of advantages, this approach, the dysfunctional approach adopted by the committee. 322 00:42:50,730 --> 00:42:57,600 First of all, it clarifies the jurisdictional link between the individuals in distress or lost at sea. 323 00:42:57,600 --> 00:43:04,650 And the states involved in the operation. And not only the state and would serve search and rescue area. 324 00:43:04,650 --> 00:43:15,010 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, 325 00:43:15,010 --> 00:43:25,400 intervening to the other vessels, state vessels, which might give some support to the operation. 326 00:43:25,400 --> 00:43:30,590 It also clarifies the content, the content of the duty to render assistance. 327 00:43:30,590 --> 00:43:37,810 It details the due diligence obligations of the states in port. 328 00:43:37,810 --> 00:43:42,240 And not only and in particular, it makes clear that, yes, of course, 329 00:43:42,240 --> 00:43:49,580 the state might have a primary obligation, but it's not an exclusive responsibility, 330 00:43:49,580 --> 00:43:55,310 which has already been, which is in a way already clear from the search and rescue convention, 331 00:43:55,310 --> 00:44:02,450 but which has been debated quite extensively by the states. And this is this clarifies what it is like. 332 00:44:02,450 --> 00:44:08,570 Well, yes, the SA state will have its own responsibility. But you still have a responsibility. 333 00:44:08,570 --> 00:44:16,880 You still have an obligation of due diligence. You're not excused by the primary responsibility of the coastal state. 334 00:44:16,880 --> 00:44:25,640 And it also clarifies how effective control can be construed in relation to obligations of 335 00:44:25,640 --> 00:44:33,600 conduct in areas which are not directly submitted to the territorial jurisdiction of the state. 336 00:44:33,600 --> 00:44:45,060 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, 337 00:44:45,060 --> 00:44:50,700 but actually it clarifies and Fransen that because I think also for the states involved, 338 00:44:50,700 --> 00:44:55,200 it makes it clearer what they are supposed to do and when maybe they. 339 00:44:55,200 --> 00:45:10,204 Well, it makes clear that they have to do more. That's for sure. But it is still a welcome outcome, I think.