CCPR/C/130/D/3042/2017
concerning the events of 11 October 2013 were still ongoing. It noted that the latest pretrial
hearing was held on 24 June 2019, and that the next one had been scheduled for 9 July 2019.
Issues and proceedings before the Committee
Consideration of admissibility
7.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
7.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of international
investigation or settlement.
7.3
The Committee notes the State party’s submission that the communication is
inadmissible under article 1 of the Optional Protocol for lack of jurisdiction as the events
occurred outside the territorial waters of the State party. It notes the authors’ submission that
the complaint falls under the State party’s jurisdiction as State party authorities were
exercising de facto control over the Maltese search and rescue area; were in continuous
contact with the vessel in distress; and had activated rescue procedures, thus exercising
control over the persons in distress.
7.4
The committee recalls that under article 1 of the Optional Protocol, it has competency
to receive and consider communications from individuals subject to the jurisdiction of States
parties. It also recalls that in paragraph 10 of its general comment No. 31 (2004) on the nature
of the general legal obligation imposed on States parties to the Covenant, it stated that States
parties were required by article 2 (1) of the Covenant to respect and to ensure the Covenant
rights to all persons who might be within their territory and to all persons subject to their
jurisdiction. That means that a State party must respect and ensure the rights laid down in the
Covenant to anyone within the power or effective control of that State party, even if not
situated within the territory of the State party. As indicated in general comment No. 15 (1986)
on the position of aliens under the Covenant, the enjoyment of Covenant rights is not limited
to citizens of States parties but must also be available to all individuals, regardless of
nationality or statelessness, such as asylum seekers, refugees, migrant workers and other
persons who may find themselves in the territory or subject to the jurisdiction of the State
party. The principle also applies to those within the power or effective control of the forces
of a State party acting outside its territory, regardless of the circumstances in which such
power or effective control was obtained, such as forces constituting a national contingent of
a State party assigned to an international peacekeeping or peace-enforcement operation.
7.5
The Committee further recalls paragraph 63 of its general comment No. 36 (2018) on
the right to life, in which it observed that in the light of article 2, paragraph 1, of the Covenant,
a State party has an obligation to respect and ensure the rights under article 6 of all persons
who are within its territory and all persons subject to its jurisdiction, that is, all persons over
whose enjoyment of the right to life it exercises power or effective control. That includes
persons located outside any territory effectively controlled by the State, whose right to life is
nonetheless affected by its military or other activities in a direct and reasonably foreseeable
manner. States parties must respect and protect the lives of individuals located in places that
are under their effective control, such as occupied territories, and in territories over which
they have assumed an international obligation to apply the Covenant. States parties are also
required to respect and protect the lives of all individuals located on marine vessels and
aircraft registered by them or flying their flag, and of those individuals who find themselves
in a situation of distress at sea, in accordance with their international obligations on rescue at
sea.6 The Committee further recalls its jurisprudence that a State party may be responsible
for extraterritorial violations of the Covenant in cases such as those involving extradition or
deportation, if it is a link in the causal chain that would make possible violations in another
6
CCPR/C/MLT/CO/2, para. 17; United Nations Convention on the Law of the Sea, art. 98;
International Convention for the Safety of Life at Sea, 1974, chap. V, regulation 10.
7