CCPR/C/130/D/3042/2017 Annex V Individual opinion of Committee member José Manuel Santos Pais (concurring) 1. I agree with the decision reached by the Committee, finding a violation by Italy of article 6 (1) read in conjunction with article 2 (3) of the Covenant. 2. This is a complex case, involving concurring and shared international jurisdiction by several States: Italy and Malta, and possibly Libya. However, the main question is whether victims were within the power or effective control of Italy, even though the incident took place outside its territory (para. 7.7), and whether, under relevant international instruments,1 Italy failed to provide assistance to rescue of persons in distress at sea. 3. The vessel in distress was 61 miles south of Lampedusa and 118 miles south-west of Malta, and therefore closest to the Italian shore. According to the Italian Minister of Defence,2 the Italian Navy ship ITS Libra was just 15 miles from the vessel in distress, or less than one hour away. Therefore, the ITS Libra was the closest ship, but instead of offering to provide direct assistance or to place itself at the disposal of the Maltese rescue centre, it omitted to do so.3 4. The Italian rescue centre received the first call at 12.26 p.m. and a second at 12.39 p.m., and was then informed that the vessel was sinking, that there were children on board and that there was a need for urgent intervention. The exact position of the vessel was given to the Italian authorities. Several other contacts ensued, with increasingly more urgent requests, at 1.17 p.m., 1.38 p.m., 2.22 p.m. and 3.37 p.m. 5. Contact with the Maltese rescue centre by the Italian rescue centre was established at 1 p.m. but no information was given about the dangerous situation of the vessel, its exact location or the close proximity of the ITS Libra and its contacts. The Maltese authorities first located the vessel around 4 p.m. 6. At 1.34 p.m., the Italian rescue centre issued a navigational warning to all shipping in the vicinity to assist. At 2.30 p.m., the Maltese rescue centre did the same. The ITS Libra did not respond to either warning. 7. The Italian Navy command was informed at 1.35 p.m. of the position of the vessel and of the number of people on board. However, at 3.34 p.m., the naval command instructed the ITS Libra not to get close to the vessel and to avoid being spotted in the area. The same order was repeated at 3.41 p.m. 8. Following the identification of the ITS Libra by the aircraft of the Armed Forces of Malta, after 4 p.m., the Maltese rescue centre requested the ITS Libra to proceed and assist, since the vessel in distress had been observed to be overcrowded and unstable. The ITS Libra, however, did not answer emergency calls made by the Maltese aircraft, which continued for two minutes. 9. At 4.38 p.m., the Italian rescue centre requested the Command of Italian Navy to put the ITS Libra in direct contact with Maltese authorities. The request was authorized at 4.41 p.m. At 4.44 p.m., the Maltese rescue centre again requested the Italian rescue centre to put the ITS Libra at the disposal of the rescue operation. The Italian rescue centre denied authorization. It was only at 5.07 p.m., after the vessel had capsized, that the ITS Libra was ordered to intervene, 4 hours and 40 minutes after the first emergency call. The ITS Libra 1 2 3 16 The United Nations Convention on the Law of the Sea, the International Convention on Maritime Search and Rescue, 1979, and the regulations adopted pursuant to the International Convention for the Safety of Life at Sea, 1974. At a hearing before the Camera dei deputati, on 17 May 2017. See available public information (in Italian) at: https://video.espresso.repubblica.it/inchieste/ cosi-l-italia-ha-lasciato-annegare-60-bambini-in-esclusiva-le-telefonate-del-naufragio/10267/10368; and https://espresso.repubblica.it/attualita/2017/09/13/news/indagine-negli-abissi-1.309437.