System
Because migration by sea has increased substantially in the last years in Latin America, a case on the violation to the right to life of migrants in distress at sea may soon be brought before the IACHR. The only case, however, that has been brought before the Commission on irregular sea migration and human rights violations was the US Interdiction of Haitians on the high seas case of 1997, which had no real discussion on the extraterritoriality of the right to life. In fact, at the time of the decision, discussions on extraterritoriality were virtually non-existent on both regional and international forums. Nonetheless, an ample case law on extraterritoriality of human rights exists now. As seen in Chapter II, multiple cases on the extraterritorial application of human rights have been brought before the ECtHR, IACHR, IACtHR and HRC. Yet, so far only the ECtHR and the HRC have engaged in discussions on grounds for the establishment of extraterritorial jurisdiction in the context of irregular sea migration. This case law may render useful for future cases brought before the Inter-American Commission and Court on loss of life at sea and will thus be subsequently analysed and discussed.
Pertaining the ECtHR’s case law (mainly, Hirsi Yamaa), it is important to note that while it is relevant to consider that jurisdiction may be established in the context of rescue operations on the basis of effective control over persons (once these persons are on board of a rescuing unit of a certain State and under the control of the authorities of such State), the question remains how jurisdiction may be established when persons in distress are not [at all/yet] taken on board of a rescuing unit. For these purposes, it is thus vital to refer to the case law of the HRC, particularly AS et al v Malta and AS et al v Italy.
The first important aspect of said decisions is the fact that the HRC determined that concurrent jurisdiction may be exercised in SAR areas. Whilst this determination is currently lacking jurisprudential support, it should nonetheless be applied by other human rights adjudicative bodies, including the IACHR. To this day, confusion exists on which State bears responsibility on search and rescue operation of persons in distress at sea, and although ‘SAR States’ should, at least in principle, bear the primary responsibility, this should not prima
35 facie exclude the possibility of other States exercising jurisdiction in these areas (or in the high seas) for the purposes of human rights obligations. The question then arises: what precisely is sufficient to establish jurisdiction in both SAR areas and in the high seas? (i.e.
when does the duty to protect the right to life apply extraterritorially?)
To begin to answer this question, it is important to refer to AS et al v Malta. As referred above, the HRC determined that the fact that the vessel was located in the SAR area of Malta, in conjunction to the fact that Maltese authorities assumed responsibility for the rescue operation at one point, was in itself sufficient to meet the threshold of ‘effective control’ and thus sufficient to establish a de facto jurisdictional link between Malta and the victims. The view, however, raises important questions. For example: is the fact that a vessel is located in a SAR area sufficient to establish a jurisdictional link between the persons on board of that vessel and the State responsible for that SAR area? Or is this only a necessary but insufficient condition for jurisdiction?
It is still contested whether the performance of a search and rescue operation entails the exercise of jurisdiction.148 Human Rights Committee member Andreas Zimmermann is of the opinion that the notion of jurisdiction in human rights treaties differs from the concept of jurisdiction provided for in the law of the sea and that thus, the real question pertaining jurisdiction in human rights treaties should be whether or not a State has effective control.
This determination appears to be the correct one: the establishment of jurisdiction in human rights treaties should not depend on the parallel existence of a specialized regime (i.e. the law of the sea), nor on the designation of SAR areas.149 In other words, whether or not persons are in a SAR area is insufficient, in itself, to establish jurisdiction for the purposes of human rights obligations: a specific de facto jurisdictional link must be established. Zimmerman argues that people in distress at sea are only under the jurisdiction of a State once they have been intercepted and rescued at sea, as this fulfils the test of ‘effective control’ over a person.150 In other words, Zimmerman considers that the positive obligation to rescue is only triggered when there is physical control over the victim.151
148 Seline Trevisanut (n37) 140
149 Marco Milanovic, ‘Drowning Migrants, the Human Rights Committee, and Extraterritorial Human Rights Obligations’(2021) EJIL <https://www.ejiltalk.org/drowning-migrants-the-human-rights-committee-and-extraterritorial-human-rights-obligations/> accessed 15 May 2022
150 Individual Opinion of Committee member Andreas Zimmermann (dissenting) in AS et al v Malta (2020) Selected Decisions of the Human Rights Committee, para 8
151 Marco Milanovic, ‘Drowning…’ (n149) 3
36 Zimmerman, however, fails to see that if jurisdiction were only to be established on the basis of the personal model, once migrants have been intercepted and rescued at sea, then this would mean that State parties would have no human rights obligations vis-à-vis persons in distress at sea prior to the actual rescue operation. This position should thus be rejected, as it would imply that States would have no human rights obligations (including the obligation to protect life) prior to interception, however, it is precisely before this moment that the duty should arise in order for States to be prompted to act.
The question then arises: what else can create a de facto jurisdictional link between States and persons in distress at sea? (whether in a SAR area or in the high seas). In other words, what is required for a State to owe human rights duties to individuals in distress at sea? It seems that the traditional links of jurisdiction provide no answer to this question, as in these cases States fail to exercise effective control over territory or physical control over the persons in distress at sea. Hence, a new ground for jurisdiction should be explored. As legal scholar L. Henkin rightly held: ‘[i]ncreasingly … the categories [for the exercise of jurisdiction] have proved to be too fixed -and perhaps too few- to serve (…) the needs of the system (including new needs responding to new commitments to human values).’152
The first [and so far only] adjudicative body to explore a new jurisdictional link in the context of migration at sea has been the HRC. As referred in Chapter II, in AS et al v Italy it determined that for extraterritorial jurisdiction to be established what is required is the existence of a ‘special relationship of dependency’, which may be presumably established as a consequence of several factual elements. Proximity to the capsizing ship appears to be the most important factor considered by the Committee. Importantly, the threshold of ‘special relationship of dependency’ reflects a functional model of jurisdiction, as States would have to exercise control over the right to life of the persons in distress at sea.
The majority’s threshold of a ‘special relationship of dependency’ has been criticised by some legal scholars and resulted in multiple dissenting opinions from the Committee’s members. In all cases, the main concern is to avoid stretching ‘too far’ jurisdiction and human rights obligations. For example, legal scholar Marco Milanovic has criticised the
‘special relationship of dependency’ for ‘not being practically limitable.’153 However, Milanovic accepts that dependency may, in some cases, be a legitimate reason to trigger
152 Louis Henkin ‘International Law: Politics, Values and Functions. General course on Public International Law’ (1989) RDC 280, 291
153 Marco Milanovic, ‘Drowning…’ (n149) 5
37 positive obligations. For example, Milanovic argues that a ‘special relationship of dependency’ could be established between Italy and the migrants in distress if the migrant’s boat would had capsized because it was hit by an Italian vessel.154 He nevertheless refers that
‘this simply was not the case – it’s not that the migrants were dependent on Italy, but that Italy had the power to save them.’155
However, it is precisely the ‘power to save human life’ what should trigger human rights obligations in the high seas. Therefore, the HRC’s new criterion to establish jurisdiction in terms of human rights obligations vis-à-vis migrants in distress at sea should be welcomed.
An expansive approach on extraterritorial jurisdiction is of paramount importance to prevent loss of life at sea. It is true that further discussions on what factual elements are required to establish this relationship are necessary, but this criteria remains nonetheless extremely relevant for future cases before adjudicative bodies, including the IACHR and the IACtHR.
Although the HRC did not expressly determine that capacity was a factor to be considered when assessing if a ‘special relationship of dependency’ is established, it can be inferred from the factual element of physical proximity. Most importantly, the element of ‘capacity’ (i.e.
factual capability to act) can be directly linked to what was held by the IACtHR in the Advisory opinion on the Environment and Human Rights (2017), particularly the fact that a jurisdictional link may be established between a State and victims of human rights violations when such State is in the ‘position of preventing’ such human rights violations.
In other words, being in the position to prevent a violation to the right to life should be sufficient to establish a jurisdictional link between the persons in distress and the State [in the position to prevent the violation] and to trigger a due diligence obligation. This would, however, entail an underlying additional condition: knowledge.156 In other words, the State in a position to prevent loss of life should be aware that its assistance is needed, because only if the State is aware of the fact that its assistance is needed it is thus then in a position to prevent the loss of life. In other words, a pivotal element is knowledge of both the distressing event and the foreseeable harm to the right to life.157 This could result from a direct distress call to its authorities, but also a result of a call by another uncapable state requiring assistance or by
154 ibid, 6
155 ibid.
156 Papastavridis has argued that the positive knowledge of a distress situation should be taken into consideration for establishing the exercise of jurisdiction. See Efthymios Papastavridis, ‘The European Convention of Human Rights and Migration at Sea: Reading the “Jurisdictional Threshold” of the Convention under the Law of the Sea Paradigm’ (2020) 21(3) GLJ 417, 431.
157 Mariagiulia Giuffré (n48) 72
38 the circumstance of a vessel or helicopter of its own being sufficiently close to a capsizing vessel to adduce that help is needed.158 Therefore, even in the absence of direct physical contact or force, State control can be deemed effective when such State determines (even if at a distance, through a helicopter or drone) that assistance is required and exercises its public powers by means of a decision pertaining the provision of rescue services, thereby exercising control over the right to life of those persons.159
The relevance of the element of geographical proximity in the context of the duty to protect human rights is not a novelty in international law. For example, in the Bosnian Genocide case the ICJ considered geographical proximity as a relevant factor to assess the capacity of a state to act in a protective manner. In particular, the Court determined that with respect to the due diligence obligation [to prevent genocide] one of the relevant parameters to assess whether a State has duly complied with its obligations is its ‘capacity’, which in itself depends, inter alia, on the ‘geographical distance of the State concerned from the scene of the events.’160
What is crucial, thus, is that the State (i) is aware of the fact that its assistance is needed (and of the foreseeable harm to the right to life) and (ii) is capable of providing such assistance, depending on its proximity and resources. This directly links to what the IACtHR held as relevant for triggering a due diligence obligation abroad, and also to what the HRC has held about due diligence obligations, particularly the fact that they require taking any reasonable positive measures. How reasonable it is for a State to conduct or assist in a search and rescue operation should thus be determined by its knowledge and capacity, the latter being determined by several factual elements particular to every case.
In light of the above, the Inter-American Commission or Court could apply the right to life extraterritorially and establish a de facto jurisdictional link between States in a position to prevent loss of life and persons in distress at sea. This expansive approach to jurisdiction could further be supported by Principle 3 of Resolution 4/19 adopted by the IACHR.
Principle 3 enshrines the pro persona principle, which is an important interpretative tool within the Inter-American System. As per Principle 3:
158 See Mariagiulia Giuffré (N48) 74. Giuffré argues that once a State is aware of a distress situation, establishes (even visual) contact with the vessel and exercises its public powers by means of a decision pertaining the rescue services, it starts to exercise control that is sufficient to trigger the application of human rights.
159 ibid.
160 Application of the Convention on The Prevention And Punishment Of The Crime Of Genocide (Merits) [2007] ICJ Rep 2007, para 430
39 Where there are two or more interpretations of a provision, States are obligated to use the most favourable to the person, offering the broadest protection. In addition, States should apply the most favourable interpretation to guarantee human rights, and the most restrictive interpretation to impose limits on those rights.161
Thus, a pro-persona interpretative approach on the right to life further supports an expansive understanding of jurisdiction and that the right to life should apply extraterritorially when a State is in a special position to prevent loss of life. A pro-persona interpretative approach of jurisdiction is also in line with what the HRC held in its GC 36 (2019), mainly the fact that the right to life should never be interpreted narrowly.
In conclusion, States should only have to prevent loss of life to the extent they are able to do so, but if they are ‘in a position to do so’ (in words of the IACtHR), they should. As legal scholars E. Katselli and V. Tzevelekos have rightly held ‘every State that is factually connected with a situation calling for the protection of fundamental rights, and especially of life, has a duty to grant protection.’162 In other words, while it is clear that SAR States should have the primary responsibility to provide assistance, this should not exclude the possibility of complementing responsibility of other States on the basis of human rights law. Because it is a matter of securing the right to life, i.e. the supreme human right, all capable States in a position to provide assistance should do so (especially so when there is an unwilling or uncapable SAR State). Ultimately, this approach to jurisdiction would imply resorting to the functional model, as the functions of a State and its capacity to directly affect the right to life of persons would create a jurisdictional link between such State and the persons affected.