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The limits to the duty to protect the right to life extraterritorially

In document Universiteit van Amsterdam (pagina 39-48)

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.

40 Pertaining capacity, because due diligence is an obligation of conduct, States are not expected to guarantee any given result (i.e. that the life of the migrant(s) in distress will be saved).164 In respect of knowledge, the HRC has clarified in GC 36 that the due diligence obligation to ensure the right to life extends only to ‘reasonably foreseeable threats and life-threatening situations that can result in loss of life.’165 Thus, ‘direct and reasonably foreseeable risks’

functions as a limiting criterion for triggering extraterritorial human rights obligations. This is line with what the IACtHR held in the Advisory opinion on the Environment and Human Rights, namely that in order for jurisdiction to arise, ‘the authorities of a State have to know, or ought to have known of the existence of a real and imminent danger for the life of [the persons].’166 Furthermore, as rightly argued by legal scholar Mariagiulia Giuffre:

[w]hen assessing whether jurisdiction is engaged [..] it is crucial to conduct a comprehensive evaluation [on] the knowledge of the State on the foreseeable consequences of its actions/omissions and the impact these might have on the rights of the people under its control.167

In addition, it is important to emphasize, as HRC’s member Gentian Zyberi rightly held in its concurring opinion in AS et al v Italy, that the due diligence obligation expected from States able to assist in rescue operations at sea is an obligation of conduct, which means States are only required to make their best efforts within their available means.168 In other words, States are only expected to make use of the means that are available to them in order to protect, to the best of their ability, the right to life.169

The second limit to the duty is proportionality. As established by the HRC in its GC 36, due diligence obligations should not impose disproportionate burdens to States. Whether or not conducting or assisting in a search and rescue operation is too burdensome for a State will evidently be circumstantial. For example, in AS et al v Italy, it was considered by the HRC that providing assistance since the beginning of the incident would not have been disproportionally burdensome for Italy in light of the fact that one of its ships was already close to the incident and sufficiently prepared to assist.

164 Vassilis Tzevelekos and Elena Katselli (n5) 465

165 UNHRC (n134) para 7

166 The Environment and Human Rights (n118) para 120

167 Mariagiulia Giuffré (n48) 65

168 Individual Opinion of Committee member Gentian Zyberi (concurring) in AS et al v Italy (2020) para 3

169 Vassilis Tzevelekos and Elena Katselli (n5) 432

41 C. Final considerations: The interaction between the due diligence obligation to protect the right to life and the obligation to render assistance as per law of the sea

The due diligence obligation referred to above would complement the duty to search and rescue enshrined in the law of the sea, and would thus not disrupt the specialized rules of the law of the sea. This is particularly the case if we consider that multiple legal scholars argue that the law of the sea simply allocates competences in search and rescue operations, but does not provide for a right to be rescued at sea.170 Thus, the duty to render assistance as per law of the sea is considered as the operational obligation deriving from the application of the right to life.171 Furthermore, even if one were to argue that a right to be rescued exists in the law of the sea, the duty to protect the right to life stemming from human rights instruments (as the ACHR) would co-exist with such right172 and would only enhance the protection of migrants at sea. In other words, the human rights regime and the law of the sea regime would complement and reinforce each other, and the rules stemming from maritime instruments could work as lex specialis concretising specific state duties and competences, as legal scholars E. Katselli and V. Tzevelekos have rightly argued.173

170 See Vassilis Tzevelekos and Elena Katselli (n5) 437

171 Seline Trevisanut (n37) 145

172 Ibid.

173 See Vassilis Tzevelekos and Elena Katselli (n5) 437

42 CONCLUSIONS

States have a duty to provide assistance to persons in distress at sea as per the law of the sea.

The protection afforded by such regime is, however, insufficient for multiple reasons. Most importantly, the law of the sea is developed in an inter-state context, where individuals lack a clear subjective right to be rescued and the possibility to litigate any breaches to the duty imposed by such regime before an adjudicative body. Therefore, the protection afforded to migrants in distress by the law of the sea must be complemented with human rights law, particularly with the right to life. In the context of the Americas, both the American Declaration and the American Convention recognise and protect the right to life.

Applying the right to life in the high seas entails applying such right extraterritorially.

Traditional grounds for extraterritorial jurisdiction, however, seem insufficient to argue in favour of such application. Thus, in this thesis novel jurisdictional links were explored by resorting to recent case law on the matter. Ultimately, it was argued that the right to life should apply extraterritorially when States are ‘in a position to prevent loss of life.’ This argument advances an expansive view on jurisdiction and was primarily based on new jurisdictional links developed by the HRC and the IACtHR. Specifically, in AS et al v Italy (2020) the HRC determined that a ‘special relationship of dependency’ should result in extraterritorial jurisdiction and should thus impose on States the duty to assist persons in distress at sea. Furthermore, in the Advisory Opinion on the Environment and Human Rights (2017) the IACtHR held that extraterritorial jurisdiction may be triggered when a State is ‘in a position to prevent human rights violations’. Most notably, in both cases it was essentially determined that a due diligence obligation is triggered abroad when a State has the capacity to prevent a violation to the right to life.

Whether a State has the capacity to prevent a violation to the right to life in the high seas is, evidently, circumstantial. In other words, different factual and subjective elements may result in such capacity. Proximity and knowledge of the distress event are two relevant elements to be considered. Furthermore, when assessing whether a State should protect the right to life in the high seas or not, reasonableness and proportionality should be relevant factors to be weighed in.

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In document Universiteit van Amsterdam (pagina 39-48)