Introduction
On 10 April 2024, the EU Parliament adopted new rules strengthening responsibility-sharing among member States in respect of management of migratory flows. The new Migration and Asylum Pact is the outcome of years of political negotiations, including in the light of the complex situation in the Mediterranean Sea. However, as we explain below, the principle of responsibility-sharing has a basis in international human rights law, too.
In this post, we focus on the responsibility of flag States pursuant to international human rights law in respect of individuals rescued on the high seas by private vessels flying their flag.
In November 2022, the vessel Ocean Viking, chartered to the NGO SOS Mediterranée, requested a few countries, including Italy, to provide a place of safety to disembark 234 migrants it had rescued in the Maltese and Libyan Search and Rescue Areas (SAR). Italy urged Norway, as the flag State of Ocean Viking, to undertake responsibility pursuant to flag State jurisdiction in respect of the rescued migrants. The Norwegian Ambassador to Rome responded to Italy’s request with the following statement: “Norway has no responsibility under human rights conventions or the law of the sea for persons taken on board private Norwegian-flagged vessels in the Mediterranean”.
Extraterritorial jurisdiction of the flag State as effective control
Norway’s position is consistent with the stricter approach to the matter: a State is only responsible extraterritorially under human rights law when it exercises effective control over a space or persons. This is ordinarily lacking in respect of individuals on board private vessels. In this regard, Papastavridis notes that generally “where rescue operations are conducted by private vessels (…) there is no jurisdictional link between the rescued persons and the flag State” (at 432).
The author identifies as a possibility of effective control the case in which “the master was given specific instructions from the competent authorities of the flag State as to how it should proceed with the persons concerned and acted accordingly”. There are other possibilities, too. The Italian Supreme Court on 1 February 2024 decided that, since pursuant to Italian law masters of private vessels are “incaricati di pubblico servizio” (a notion akin to that of persons exercising elements of governmental authority under Article 5 ARWISA), their conduct engages Italy’s jurisdiction for purposes of the European Convention on Human Rights.
Extraterritorial jurisdiction of the flag State “ipso facto”
Human right bodies have made statements more in line with Italy’s position than Norway’s. These appear to suggest that, irrespective of any exercise of concrete control, States are ipso facto implicated with protecting the rights of individuals taken on board private vessels flying their flag.
In a note of 22 December 2022, the UNHCR explicitly asserted the flag State’s duty to “cooperate with other States to ensure disembarkation arrangements and access to asylum consistent with international law” (at 4.5) and its residual responsibility when cooperation with other States fails. For the UNHCR, this is to ensure flag State compliance with its international human rights obligations.
Although the legal basis for the co-responsibility of the flag State is unstated, the UNHCR’s position is grounded in the practice of the European Court of Human Rights and the UN Human Rights Committee.
European Court of Human Rights
In Banković and others v Belgium, the ECtHR indicated that “other recognised instances of the extra-territorial exercise of jurisdiction by a State include cases involving the activities (…) on board craft and vessels registered in, or flying the flag of, that State” (at 73). The Court went on to note that in special instances such as activities on board ships, “customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant State”. These statements encapsulate two key aspects of the Court’s reasoning.
First, the assimilation of the notion of “jurisdiction” within the meaning of Article 1 ECHR and in public international law (Banković, at 59; H.F. and others v. France, at 185; and Wieder and Guarnieri v. UK, at 87).
Second, the recognition of “customary international law and treaty provisions” as a form of de jure extra-territorial application of human rights, distinct from the extra-territorial jurisdiction arising from a de facto effective control over a territory or persons.
The facts of Banković did not concern vessels. The Court, however, relied on Banković’s position in cases that did: Medvedyev v. France, Hirsi v. Italy, and Banakova v. Lithuania. These cases support the proposition that the jurisdictional connection created under general international law by the flag is – in and of itself – sufficient to establish human rights law jurisdiction of the flag State.
Medvedyev concerned the boarding by French authorities of a merchant ship registered in Cambodia. While the Court (at 65) quoted Banković, this was not determinative of the reasoning on jurisdiction. Since the vessel had been placed under the control of the French Navy, the ECtHR noted:
On 10 April 2024, the EU Parliament adopted new rules strengthening responsibility-sharing among member States in respect of management of migratory flows. The new Migration and Asylum Pact is the outcome of years of political negotiations, including in the light of the complex situation in the Mediterranean Sea. However, as we explain below, the principle of responsibility-sharing has a basis in international human rights law, too.
In this post, we focus on the responsibility of flag States pursuant to international human rights law in respect of individuals rescued on the high seas by private vessels flying their flag.
In November 2022, the vessel Ocean Viking, chartered to the NGO SOS Mediterranée, requested a few countries, including Italy, to provide a place of safety to disembark 234 migrants it had rescued in the Maltese and Libyan Search and Rescue Areas (SAR). Italy urged Norway, as the flag State of Ocean Viking, to undertake responsibility pursuant to flag State jurisdiction in respect of the rescued migrants. The Norwegian Ambassador to Rome responded to Italy’s request with the following statement: “Norway has no responsibility under human rights conventions or the law of the sea for persons taken on board private Norwegian-flagged vessels in the Mediterranean”.
Extraterritorial jurisdiction of the flag State as effective control
Norway’s position is consistent with the stricter approach to the matter: a State is only responsible extraterritorially under human rights law when it exercises effective control over a space or persons. This is ordinarily lacking in respect of individuals on board private vessels. In this regard, Papastavridis notes that generally “where rescue operations are conducted by private vessels (…) there is no jurisdictional link between the rescued persons and the flag State” (at 432).
The author identifies as a possibility of effective control the case in which “the master was given specific instructions from the competent authorities of the flag State as to how it should proceed with the persons concerned and acted accordingly”. There are other possibilities, too. The Italian Supreme Court on 1 February 2024 decided that, since pursuant to Italian law masters of private vessels are “incaricati di pubblico servizio” (a notion akin to that of persons exercising elements of governmental authority under Article 5 ARWISA), their conduct engages Italy’s jurisdiction for purposes of the European Convention on Human Rights.
Extraterritorial jurisdiction of the flag State “ipso facto”
Human right bodies have made statements more in line with Italy’s position than Norway’s. These appear to suggest that, irrespective of any exercise of concrete control, States are ipso facto implicated with protecting the rights of individuals taken on board private vessels flying their flag.
In a note of 22 December 2022, the UNHCR explicitly asserted the flag State’s duty to “cooperate with other States to ensure disembarkation arrangements and access to asylum consistent with international law” (at 4.5) and its residual responsibility when cooperation with other States fails. For the UNHCR, this is to ensure flag State compliance with its international human rights obligations.
Although the legal basis for the co-responsibility of the flag State is unstated, the UNHCR’s position is grounded in the practice of the European Court of Human Rights and the UN Human Rights Committee.
European Court of Human Rights
In Banković and others v Belgium, the ECtHR indicated that “other recognised instances of the extra-territorial exercise of jurisdiction by a State include cases involving the activities (…) on board craft and vessels registered in, or flying the flag of, that State” (at 73). The Court went on to note that in special instances such as activities on board ships, “customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant State”. These statements encapsulate two key aspects of the Court’s reasoning.
First, the assimilation of the notion of “jurisdiction” within the meaning of Article 1 ECHR and in public international law (Banković, at 59; H.F. and others v. France, at 185; and Wieder and Guarnieri v. UK, at 87).
Second, the recognition of “customary international law and treaty provisions” as a form of de jure extra-territorial application of human rights, distinct from the extra-territorial jurisdiction arising from a de facto effective control over a territory or persons.
The facts of Banković did not concern vessels. The Court, however, relied on Banković’s position in cases that did: Medvedyev v. France, Hirsi v. Italy, and Banakova v. Lithuania. These cases support the proposition that the jurisdictional connection created under general international law by the flag is – in and of itself – sufficient to establish human rights law jurisdiction of the flag State.
Medvedyev concerned the boarding by French authorities of a merchant ship registered in Cambodia. While the Court (at 65) quoted Banković, this was not determinative of the reasoning on jurisdiction. Since the vessel had been placed under the control of the French Navy, the ECtHR noted:
However, the expression “at least de facto” is significant. Read together with the reference to Banković, it suggests that for the Court the flag ordinarily implies de jure control over private vessels.
Hirsi confirmed this. An Italian military vessel intercepted migrants from Libya on the high seas, took them on board and returned them to Libya. It would have been sufficient, to establish jurisdiction, to rely on the fact the migrants were placed under the Italian Navy’s control. Yet, this was only an ad abundantiam consideration for the Court. The main reasoning was as follows:
Hirsi confirmed this. An Italian military vessel intercepted migrants from Libya on the high seas, took them on board and returned them to Libya. It would have been sufficient, to establish jurisdiction, to rely on the fact the migrants were placed under the Italian Navy’s control. Yet, this was only an ad abundantiam consideration for the Court. The main reasoning was as follows:
Bakanova concerned Lithuania’s duty to investigate a death that had occurred on a Lithuanian-flagged vessel while on the high seas. The Court quoted the general proposition on extraterritorial jurisdiction on vessels in Banković, and further relied on the following “special features” for purposes of Article 1:
In fact, these features are not at all “special”, but follow ordinarily from a flag State’s jurisdiction over its vessels under “customary international law and treaty provisions”. For example, the application of the flag State’ laws on board ensues from Articles 92 and 94 UNCLOS. Equally, it is standard that the master of a vessel has exclusive authority on the ship, so much so that in common law the powers of masters have been described as “despotic” (at 9). As regards decisions concerning safety of life at sea, Regulation 34-1 SOLAS gives the master full authority.
Overall, the Court’s approach contradicts the scholarly view that “it is perfectly irrelevant for the question of the extraterritorial application of human rights treaties that customary law recognizes that the State may regulate conduct aboard registered ships” (Milanovic, at 193).
Human Rights Committee
Similarly to the ECtHR, the HRC indicated in its General Comment 36 that “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” (at 63).
Further, S.A. and others v. Malta, concerning Malta’s failure to rescue migrants in its SAR, also reflects the ECtHR’s approach in Banković to the human rights implications of flag State jurisdiction. Specifically, in assessing Malta’s jurisdiction, the HRC considered that:
Overall, the Court’s approach contradicts the scholarly view that “it is perfectly irrelevant for the question of the extraterritorial application of human rights treaties that customary law recognizes that the State may regulate conduct aboard registered ships” (Milanovic, at 193).
Human Rights Committee
Similarly to the ECtHR, the HRC indicated in its General Comment 36 that “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” (at 63).
Further, S.A. and others v. Malta, concerning Malta’s failure to rescue migrants in its SAR, also reflects the ECtHR’s approach in Banković to the human rights implications of flag State jurisdiction. Specifically, in assessing Malta’s jurisdiction, the HRC considered that:
Thus, for the HCR, differently from acts occurring in SAR zones, which require some form of effective control to engage the State’s jurisdiction, conduct taking place on a vessel falls ipso facto within the de jure extra-territorial jurisdiction of the flag State.
Moreover, insofar as the HRC may have suggested (Milanovic) that a SAR State’s responsibility under the ICCPR arises automatically with regard to individuals finding themselves in that area (S.A. and others v. Italy, holding that certain individuals “were within the Maltese search and rescue region and thus (…) subject (…) to the jurisdiction of Malta”, (at 7.8, emphasis added)), flag State’s responsibilities under human rights law would, a fortiori, be engaged. SAR State jurisdiction in the SAR is limited; on the other hand, Article 92 UNCLOS recognizes a broad jurisdiction of the flag State on vessels flying its flag.
Flag State responsibility would be engaged also under a more functionalistic reading of the HRC’s approach in S.A and others v. Malta. The HRC emphasized Malta’s duties to search and rescue under Article 98 UNCLOS, as well as pursuant to the SAR and SOLAS Conventions. This was consistent with General Comment 36, referring to the duty to protect the lives of those who are in distress at sea, in light of international obligations (at 63). If international obligations of the SAR State imply its jurisdiction for purposes of the ICCPR, then flag State international obligations likely have the same effect. Article 94 UNCLOS sets out pervasive duties for flag States, including in respect of those on board: “[e]very State shall effectively exercise its jurisdiction and control in (…) social matters over ships flying its flag”. Article 98 sets out search and rescue obligations also for the flag State.
Likewise, a functionalist approach based on the proposition that “States ought to implement human rights obligations in those situations in which they have a special relationship with the individual in question that renders them particularly well suited to protect that said individual” matches well the position of flag States in respect of those on board their private vessels (Shany, at 69-70, Shany, at 150).
Conclusions
The S.S. Lotus idea that a vessel is floating territory of the State is long gone (Tanaka, at 190). However, this is no reason to discard the proposition that the connection created by the flag in international law engages ipso facto the responsibility of the flag State in human rights law. For the ECtHR, there appears to exist a special genus of “de jure extraterritorial control” of the flag on its vessels. This appears a “presumption of jurisdiction” similar to the one a State possesses on its territory, yet independent of territoriality. This may derive from the sui generis nature of flag State jurisdiction on its vessels: not territorial, yet enjoying many of the same features (Fischer-Lescano et al. at 274-275). The HRC’s position, either under the same reasoning as the ECtHR or under a functionalist approach, leads to the same conclusion: there is no support in human rights law for the proposition that flag States do not have any responsibility for persons taken on board their private vessels in the context of search and rescue.
While this does not exclude the responsibility of other States in respect of migration in the Mediterranean, it reflects that a degree of responsibility-sharing, including as envisaged by UNHCR, is not only a political solution, but also a legal obligation.
Moreover, insofar as the HRC may have suggested (Milanovic) that a SAR State’s responsibility under the ICCPR arises automatically with regard to individuals finding themselves in that area (S.A. and others v. Italy, holding that certain individuals “were within the Maltese search and rescue region and thus (…) subject (…) to the jurisdiction of Malta”, (at 7.8, emphasis added)), flag State’s responsibilities under human rights law would, a fortiori, be engaged. SAR State jurisdiction in the SAR is limited; on the other hand, Article 92 UNCLOS recognizes a broad jurisdiction of the flag State on vessels flying its flag.
Flag State responsibility would be engaged also under a more functionalistic reading of the HRC’s approach in S.A and others v. Malta. The HRC emphasized Malta’s duties to search and rescue under Article 98 UNCLOS, as well as pursuant to the SAR and SOLAS Conventions. This was consistent with General Comment 36, referring to the duty to protect the lives of those who are in distress at sea, in light of international obligations (at 63). If international obligations of the SAR State imply its jurisdiction for purposes of the ICCPR, then flag State international obligations likely have the same effect. Article 94 UNCLOS sets out pervasive duties for flag States, including in respect of those on board: “[e]very State shall effectively exercise its jurisdiction and control in (…) social matters over ships flying its flag”. Article 98 sets out search and rescue obligations also for the flag State.
Likewise, a functionalist approach based on the proposition that “States ought to implement human rights obligations in those situations in which they have a special relationship with the individual in question that renders them particularly well suited to protect that said individual” matches well the position of flag States in respect of those on board their private vessels (Shany, at 69-70, Shany, at 150).
Conclusions
The S.S. Lotus idea that a vessel is floating territory of the State is long gone (Tanaka, at 190). However, this is no reason to discard the proposition that the connection created by the flag in international law engages ipso facto the responsibility of the flag State in human rights law. For the ECtHR, there appears to exist a special genus of “de jure extraterritorial control” of the flag on its vessels. This appears a “presumption of jurisdiction” similar to the one a State possesses on its territory, yet independent of territoriality. This may derive from the sui generis nature of flag State jurisdiction on its vessels: not territorial, yet enjoying many of the same features (Fischer-Lescano et al. at 274-275). The HRC’s position, either under the same reasoning as the ECtHR or under a functionalist approach, leads to the same conclusion: there is no support in human rights law for the proposition that flag States do not have any responsibility for persons taken on board their private vessels in the context of search and rescue.
While this does not exclude the responsibility of other States in respect of migration in the Mediterranean, it reflects that a degree of responsibility-sharing, including as envisaged by UNHCR, is not only a political solution, but also a legal obligation.