CCPR/C/130/D/3042/2017
Annex VI
Individual opinion of Committee member Vasilka Sancin
(concurring)
1.
I agree with the Views of the Committee that the individuals on the vessel in distress
were directly affected by the decisions of Italy in a manner that was reasonably foreseeable
in the light of the relevant legal obligations of Italy, and that they were thus subject to the
State party’s jurisdiction, concurrently to the jurisdiction of Malta, for the purposes of the
Covenant, and that the Committee was therefore not precluded by article 1 of the Optional
Protocol from considering the present communication. I also fully agree with the
Committee’s finding of a violation of article 6, read alone and in conjunction with article 2
(3), of the Covenant.
2.
However, I wish to emphasize that in my view, since the tragic events took place on
the high seas, where, according to the law of the sea, neither Italy nor Malta may exercise
any territorial jurisdiction, other than over the vessels flying their flags, and in circumstances
exhaustively envisaged in the United Nations Convention on the Law of the Sea – e.g., in a
case of piracy – the issue of compatibility of the communication under article 1 of the
Optional Protocol ratione loci, establishing whether the individuals were subject to State
party’s jurisdiction, applying the maxim of “power or effective control”, is intrinsically
linked to the right engaged, that is, the right to life. The Committee emphasized (para. 7.5),
referring to its general comment No. 36 (2018), that States parties must respect and protect
the lives of individuals who find themselves in a situation of distress at sea, in accordance
with their international obligations on rescue at sea (emphasis added).
3.
It is for this reason that I find, after considering the facts and particular circumstances
of the case (para. 7.7), that the communication is admissible, although events occurred in the
area of the high seas. The authors sufficiently demonstrated (a) that Italy had a power to act
upon its international duties, that is, to render assistance to a vessel in distress in accordance
with article 98 of the United Nations Convention on the Law of the Sea, and to assist Maltese
authorities in its search and rescue area; (b) that Italy led the victims to believe, in particular
within the first hour(s) after contact had been made, that it would comply with those duties;
and (c) that such necessary activities could have directly, and in a reasonably foreseeable
manner, affected the events. By this assumption of its obligation to exercise the existing
power in the concrete case, in my view, Italy subjected the victims to its jurisdiction, but
owing to its omission to act accordingly, failed to protect their lives and, after the fact, to
properly investigate the incident, which resulted in a violation of the authors’ rights.
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