CCPR/C/130/D/3042/2017
responsible de jure or de facto for the overall conduct of the operation, we do not consider it
appropriate to hold Italy accountable under the Covenant for failing to deploy more quickly
Italian vessels that would enable it to assume earlier de facto responsibility over the search
and rescue operation.
6.
We further consider that the approach taken by the majority of equating the ability to
engage in a maritime operation in search and rescue areas for which another State is
internationally responsible with the notion of jurisdiction over the individuals on vessels in
distress might disrupt the legal order that the International Convention for the Safety of Life
at Sea, 1974, and International Convention on Maritime Search and Rescue, 1979, attempted
to introduce, with a view to minimizing the “tragedy of the global commons”, generated by
the lack of a clear division of labour between coastal States over search and rescue operations.
Therefore, while the approach taken by the majority could be suitable to govern the
obligations of States in areas for which no State is internationally responsible for search and
rescue operations, so as to avoid “negative” jurisdictional conflicts, it is inappropriate for
areas where such a responsible State is available and is in fact assuming its responsibilities,
and which might generate “positive” jurisdictional conflicts.
7.
As a result, we are of the view that given the primary responsibility of Malta for the
search and rescue operations in the relevant maritime area and the mere supportive role of
the State party, the Committee should not have concluded that the victims on board the
capsized vessel fell under the jurisdiction of Italy for the purposes of the Covenant and the
Optional Protocol, neither before or at the time at which the vessel capsized, and that the
Committee should have therefore considered the communication to be inadmissible pursuant
to article 1 of the Optional Protocol.
12
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