The Crotone Migrant Shipwreck: A Cat-and-Mouse Blame Game …

There are myriad ways States could exercise effective remote control over the rights of persons, including detrimental rescue instructions, as well as policy and operational arrangements that can hinder human rights protection. On 26 February 2023, a migrant shipwreck off the Italian coast of Crotone, yet again 'shocked' the European Union (EU). Indeed, it has been quite a while since a shipwreck has garnered so much attention.

To be clear, hundreds of shipwrecks go missing every year on the Mediterranean Sea, without a trace of them. Unlike the tragedy that unfolded south of Crotone, those shipwrecks remain unannounced, with the hope that the spotlight will not flash again on the 'migration crisis', which the EU declared [1] as 'over' in March 2019 ahead of the European Parliament elections. The Crotone shipwreck is another paradigm of the delayed/non-assistance saga that has been unfolding in the Mediterranean region at the expense of human lives.

However, what makes this incident different is its factual context. While no distress call was placed from the migrants on the boat to alert the Italian authorities, the use of technology by the EU's Border and Coast Guard Agency (Frontex) alerted the relevant authorities of a strong likelihood of an emergency, that arguably should have been marked as a Search and Rescue (SAR) event. As a matter of fact, there are countless incidents concerning drownings and facilitated push-and-pull-backs taking place amidst the use of and facilitation by technologies at external borders.

Bewildering questions, as such, arise as to the nature of State obligations and responsibilities towards persons in distress at sea that epicentre upon the exercise of extraterritorial human rights jurisdiction, and the nexus between the State's capacity to act and the impact of its (in)actions. It needs to be stressed that various facts are yet to be conclusively established as the reconstruction of events is still in process. Background

From what we know so far, on 22 February 2023, a Turkish wooden boat with over 150 migrants onboard, departed from Turkey and set sail along the 'Calabria route'[2] towards Italy. In its course, the vessel had broken up in rough seas and became in distress, with large quantities of water entering the boat. On 25 February 2023, Frontex's aircraft (part of the joint operation Themis surveilling the area) was able to first identify the boat, 40 nautical miles from Italy.

Though Frontex submitted that there appeared to be 'no signs of distress'[3], the evidence that the agency acquired by thermal cameras, and communicated then to the Italian law enforcement authorities and those of maritime rescue, indicated strong elements that the boat was in distress as it showed a high number of people on board with sea state 4 [4] conditions, meaning the situation at sea was extremely perilous. This information was acquired by the use of the aforementioned technologies, which (ought to have) played a critical part in providing the authorities with sufficient knowledge of the potential distress state of the boat and the need for a SAR mission. It has also been reported that the thermal signs indicated that not only the boat was overcrowded, but also, that there 'might be people below the deck'[5].

Italy had access to the live streaming sensors that were shared by Frontex, but still did not classify the incident as an 'emergency', hence no SAR operation was launched. In turn, Italy mobilized two patrol boats of Guardia di Finanza (GDF) initiating a police operation to investigate the situation, who had to then return to the port due to bad weather and sea conditions. It should be noted though that the GDF is ill-equipped to carry out a SAR operation; had the Italian Coast Guard been deployed though, they would have been able to navigate and undertake a SAR, even with worse weather conditions (sea force 8 [6]), as they are more professionally equipped.

From what we know so far [7], 79 lives were lost, including a total of 33 minors, several others are still missing (approximately 20), and 86 have survived the incident. Protection of life at sea Under the law of the sea terrain, the duty to render assistance to those in distress reflects a customary duty to protect life at sea, and as I have argued elsewhere [8], a right to be rescued at sea ought to be recognized in human rights law as its ultimate logical correlative; the need has never been more pressing.

This duty, under the 1982 United Nations Convention on the Law of the Sea (UNCLOS [9]) and the other International Maritime Oganization (IMO [10]) treaties, unlike (most) human rights treaties, requires no jurisdictional nexus between the shipmaster and the persons that need to be rescued. In this incident, the fact that the migrants' boat was in the search and rescue region (SRR) of Italy, would not ipso facto trigger the State's human rights obligations, as an SRR zone does not equate to a jurisdictional zone [11]. Instead, these, are spaces where State parties need to ensure the cooperation and coordination of SAR activities.

In this context, Attard and Vella de Fremeaux have argued [12] that it would be difficult to posit that jurisdiction would exist 'by the simple presence of a vessel in distress in a State's SRR'. Hence, what would be required is some action or inaction on the part of the SAR State for human rights jurisdiction to be triggered (as the sole fact that the migrants' boat was in Italy's SRR will not suffice). The definition of the concept of 'distress'

Turning to the meaning of the term 'distress', the 1979 International Maritime Search and Rescue Convention (SAR Convention, as amended) provides that it is 'a situation wherein there is a reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance' (Annex, 1.3.13). Against this backdrop, it can be anticipated that a wooden, overloaded, and leaky vessel together with evidence generated by thermal imaging showing signs of bodies beyond the deck, indicates a reasonably foreseeable threat to human life which will qualify as distress. This is important to reconcile as identifying what is 'distress' remains pivotal at the policy as well as the operational level, as the people on board did not alter the Italian authorities of their distress state that would have potentially triggered a 'special relationship of dependency' between the persons in danger and the State authorities as the Human Rights Committee (HRC) reasoned in A.S. and others v.

Italy (CCPR/C/130/DR/3042/2017 [13], ?

2.7). Technologies as knowledge generators Manifestly, the principal reason behind the human tragedy appears to be Italy's negligent acts and omission to launch a SAR operation in its SRR zone, which had fatal consequences.

Are we still then, looking at an 'invisible' phenomenon? It is unquestionable that sea crossings are placed under substantial aerial surveillance vis-a-vis generating visual knowledge by their ability to detect and trace migration movements. One would have legitimately expected that such use would have enhanced the SAR capacities of States by providing early warnings and to an extent, fill the vacuum of migrants' protection at sea. (I discuss this further in a forthcoming paper.)

As the HRC has stressed [14], States obligation to respect and protect human rights includes 'persons located outside any territory effectively controlled by the State, whose [rights are] nonetheless impacted by its military or other activities'. It can be in turn argued that the detection of cross border movements makes it possible, and provides States with the capacity to control from a distance how a situation will unfold thus, impacting the rights' of migrants, by exerting what Moreno-Lax calls 'contactless control'[15] over individuals. In this way, technologies used and deployed at external borders can be conceptualized as knowledge generators that have the ability to activate the jurisdictional nexus, triggering in this way a State's positive human rights obligations to exercise due diligence in coordinating rescue efforts.

Undoubtedly, what I am advocating here is a functional conception of jurisdiction, that posits that Italy by its sovereign decisions (acts and omissions) exercised a sufficient degree of effective remote control over the migrants' fate. Hence, the authorities had the capacity to impact the concerned migrants' lives in a direct and reasonably foreseeable manner (for analysis on similar issues, see e.g. Milanovic's [16] post). Respectively, the obligation to protect the right to life in international human rights law encompasses a duty to 'prevent' loss of life according to a due diligence standard.

The European Court of Human Rights in Ilascu and Others v. Moldova and Russia [17] identified a 'reasonable knowledge' condition which provided that the preventive positive obligation arises if the State's authorities knew or should have known of a real and immediate risk to the life of an identified individual(s) (for extensive analysis see here [18]). Of course, knowledge rests on the factual circumstances, yet given the history of casualties taking place across the Mediterranean Sea (especially over the last decade), coupled with pre-existing knowledge of the Mediterranean migration routes, States are reasonably expected to apprehend that such information manifested a certain risk to the life of migrants that was foreseeable.

It appears then, that the Italian authorities failed to act in a diligent manner to prevent the imminent threat to life from materializing, even when they knew or should have known about the risk of harm and the fate which awaited the migrants in distress (on 'knowledge' see Stoyanova's [19] article). Conclusion As the events of the Crotone migrant shipwreck are being currently reconstructed, it remains to be seen whether Italy will be held responsible for its acts and omissions.

The fact that the migrants in this case attempted to cross the Eastern Mediterranean route is arguably a result of the intensification of efforts on the Central Mediterranean, and the bilateral agreements concluded between Italy and Libya, which have clearly diverted migrant crossings to other routes, which in itself has further reduced the safety of crossings. The inherent dangers that lie in such diversions are clear, not least of which non-governmental organizations [20] are not carrying out rescues a priori in that area. It follows that the need to address and prevent foreseeable deaths on maritime migrant routes buttresses the claim of recognizing a right to be rescued at sea vested in individuals.

While a conclusive determination on accountability is difficult to be made at this stage, the Crotone migrant shipwreck is a reminder and a clear-cut result of the governments' continuous failure to cooperate and - a plea - to adopt a humanitarian migration response.

References

^ EU declared (www.theguardian.com)
^ 'Calabria route' (www.infomigrants.net)
^ no signs of distress' (frontex.europa.eu)
^ sea state 4 (www.euractiv.com)
^ 'might be people below the deck' (euobserver.com)
^ sea force 8 (www.italianpost.news)
^ so far (www.infomigrants.net)
^ I have argued elsewhere (www.cambridge.org)
^ UNCLOS (www.un.org)
^ IMO (www.imo.org)
^ not equate to a jurisdictional zone (opiniojuris.org)
^ argued (opiniojuris.org)
^ CCPR/C/130/DR/3042/2017 (tbinternet.ohchr.org)
^ stressed (www.ohchr.org)
^ contactless control' (www.cambridge.org)
^ Milanovic's (www.ejiltalk.org)
^ Ilascu and Others v.

Moldova and Russia (hudoc.echr.coe.int)
^ here (helda.helsinki.fi)
^ Stoyanova's (www.cambridge.org)
^ non-governmental organizations (www.infomigrants.net)