CCPR/C/130/D/3042/2017 Annex I Joint opinion of Committee members Yuval Shany, Christof Heyns and Photini Pazartzis (dissenting) 1. We do not agree with the majority’s decision that the tragic events described in the communication fell within the jurisdiction of Italy for the purposes of establishing its obligations under the Covenant and admissibility under the Optional Protocol. 2. In paragraph 7.8 of the Views, it is explained that a special relationship of dependency had been established between the victims on the vessel in distress and Italy, which engaged the State party’s obligations under the international law of the sea pursuant to the regulations of the International Convention for Safety of Life at Sea, 1974, in particular, chapter V, regulation 33, and the International Convention on Maritime Search and Rescue, 1979, in particular chapter 5.6. As a result, the majority considered that the individuals on the vessel in distress were directly affected by the decisions taken by the Italian authorities in a manner that was reasonably foreseeable in the light of the relevant legal obligations of Italy, and that those on board the vessel were thus subject to the State party’s jurisdiction for the purposes of the Covenant, notwithstanding the fact that they were within the Maltese search and rescue region and thus concurrently subject to the jurisdiction of Malta. We are of the opinion that the majority Views fail to distinguish between (a) situations in which States have the potential to place under their effective control individuals who are found outside their territory or areas already subject to their effective control, and (b) situations involving the actual placement of individuals under effective State control. Only the latter situations establish jurisdiction for the purposes of the Covenant and the Optional Protocol. 3. As explained in paragraphs 7.7–7.8 of the Views, the vessel in distress was located throughout the relevant period of time – that is, between the time of the initial call for rescue and when the vessel capsized – outside the territorial waters of Italy and inside the search and rescue area of Malta. The preliminary question before the Committee in the case at hand was whether the victims on the vessel could be considered to have been within the power or effective control of Italy, even though the incident took place on the high seas, in an area for which Malta assumed search and rescue legal responsibilities. It has not been claimed before the Committee that Italy formally accepted legal responsibility for the search and rescue mission before the vessel capsized, nor that it assumed de facto control over the operation. 4. Although initial contact was made between the vessel in distress and the Italian rescue centre, this fact alone, in the absence of additional information showing acceptance of legal responsibility, is not sufficient to conclude that the State actually exercised jurisdiction over the individuals on board the vessel from that moment onwards or was legally obliged to do so. In particular, it is significant that Italy did not actually coordinate the search and rescue operation, but rather referred the distress call to the competent authorities in Malta, and that the latter confirmed in writing the coordinating role of Malta with respect to the search and rescue operation undertaken. While the Italian authorities supported the search and rescue efforts of the Maltese authorities by sending, albeit too late, an Italian Navy vessel – the ITS Libra – to the area, the vessel in distress did not come under the effective control of the Italian Navy party before 6.30 p.m. on the day of the sinking. That was more than an hour after the vessel in distress had capsized, at which time the ITS Libra arrived at the scene and became the on-site coordinator of the rescue operation. 5. While there may have been critical failures in the response of the Italian rescue centre and the Italian Navy to the distress calls and to the Maltese requests for assistance that contributed to the tragic loss of life of large numbers of victims, such failures do not establish in and of themselves effective control by Italy over the individuals on the vessel in distress, regardless of whether or not such failures entail criminal responsibility under Italian law or a violation of the State party’s law of the sea obligations vis-a-vis Malta and other States. This is especially the case in circumstances where the said individuals are located in an area for which another State has assumed legal responsibility – and by implication, jurisdiction – under the law of the sea for search and rescue operations. Since Malta, and not Italy, was 11