Migrants and Refugees in Distress in the Mediterranean Sea
On 4 March 2025, in an unprecedented decision, the United Nations (UN) Human Rights Committee (or the Committee) requested Malta to urgently take all necessary measures to coordinate a search and rescue (SAR) operation to rescue 32 people in distress in the Mediterranean Sea and to bring them to a place of safety. For the first time, the UN Human Rights Committee has granted interim measures in a case of distress at sea. And for the first time, the Committee has applied the functional approach to jurisdiction to do so. The decision is historical: it offers a legal path to respond in real time to States negligence vis-à-vis their international obligations and a legal tool to prevent imminent risk(s) of irreparable damage(s) to the human rights of people in distress in the Mediterranean Sea.
Facts of the case: Malta failed to respond to the distress calls in its SAR zone
The decision followed the submission of an interim measures request filed by StraLi, UpRights and SOS Humanity on 3 March 2025, on behalf of 32 individuals (the co-authors of the submission) who, at the time of filing, had been in distress at sea for more than three days.
The individuals, including 4 women, several minors, and 2 younger children, left the port of Zuwara in Libya, in an attempt to cross the Central Mediterranean – widely known as the ‘deadliest migration route in the world’- to reach the shores of Europe. Shortly after departure, on 1 March 2025, the boat experienced technical failures and was, thus, unable to continue its journey. High waves and strong winds caused the boat to strand on the Miskar gas platform, in an area of the Mediterranean Sea where the Maltese and Tunisian search and rescue (SAR) zones overlap. The people in distress immediately approached the emergency hotline Alarm Phone (AP), which relayed the information regarding the distress case to the competent authorities of Malta and Italy. The individuals in distress informed AP that they did not have any supplies, including food, water and life vests, and that one person had died at sea while others were in poor health. AP conveyed this information to the relevant domestic authorities, including the Maltese authorities. They, however, failed to respond to any communication from AP on the case at stake. The co-authors repeated the requests for urgent assistance on 2 and 3 March 2025. None of the domestic authorities acted upon these requests, nor responded at all.
The circumstances of this case are, as we know and unfortunately, common. Non-governmental organisations (NGOs) that conduct SAR operations in the Mediterranean Sea have repeatedly reported that Maltese authorities fail to respond to distress calls by migrants in its SAR zone, leaving individuals at risk of dying at sea or of being intercepted by the so-called Libyan Coast Guard (LGC) and being brought back to Libya. The UN Office of the High Commissioner (OHCHR) has confirmed Malta’s modus operandi of disregarding distress calls in its SAR zone. Sea-Watch and OHCHR documented that even when Malta does respond to distress calls, it regularly coordinates interceptions by the so-called LCG in order to redirect migrants and refugees to Libya. This is in clear violation of the fundamental principles of international law: as the Council of Europe and national courts confirmed, Libya cannot be considered as a place of safety for disembarkation.
Trying something new: filing of an interim measure request at the UN Committee
In an effort to change the course of action, StraLi, UpRights and SOS Humanity (the three organisations) filed an interim measures request to the UN Human Rights Committee. An interim measure is an urgent and temporary measure that the UN Human Rights Committee can issue in circumstances in which there is an imminent risk of irreparable damage to one of the human rights safeguarded and enshrined in the International Covenant on Civil and Political Rights (ICCPR).
In the current case, the three organisations argued that there was an imminent risk of irreparable damage to the right of life and prohibition of torture and other forms of ill-treatment of those individuals who have been stranded for three days on the Miskar gas platform. The people in distress were already facing the imminent risk of losing their lives at sea. One individual had already died. They were also already in circumstances that may amount to inhuman and degrading treatment, having been left without food, water and proper shelter on the high sea for days. They were also at risk of being intercepted by the so-called LCG and brought back to Libya – to re-enter the documented vicious circle of human rights violations and abuses that migrants and refugees face in the country and that may amount to crimes against humanity and war crimes.
The aim of the request was to prevent such an imminent risk of irreparable damage, impacting on the 32 individuals’ right to life and on their physical and psychological integrity, by demanding that Malta immediately fulfil its international obligations to coordinate or conduct search and rescue operations in its SAR zone.
People stranded on the Miskar platform, Picture taken from Seabird (Sea Watch)
The interim measure decision: application of the functional approach to jurisdiction
For the first time under the interim measures system of the ICCPR and its Optional Protocol, the Committee recognised Malta’s jurisdiction by applying the functional approach. This represents a recent further development of the Committee from the so-called extraterritorial jurisdiction, which traditionally requires States to comply with their international obligations even in situations occurring outside their own territorial soil. The Committee has developed the functional approach in General Comment 36 (2019) and applied it for the first time in the cases A.S. and others v. Italy and v. Malta (2020).
According to this approach, Member States have jurisdiction over ‘persons located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner’. In the case against Malta, the Committee recognised the existence of a special dependency between the individuals in distress at sea and Malta, because the boat in distress was located in the Maltese SAR region and Malta had failed to respond to the emergency calls received or take any steps to coordinate or provide a SAR operation to rescue the people at sea. It therefore concluded that ‘Malta exercised effective control over the rescue operation, potentially resulting in a direct and reasonably foreseeable causal relationship between the States parties’ acts and omissions and the outcome of the operation’. By granting the interim measures in similar factual circumstances, the Committee appears to have followed the same reasoning as in A.S. and others v. Malta. From a plain reading of the interim measures decision, it is clear that the Committee was convinced of the existence of Malta’s jurisdiction and thus – responsibility to act – in the case at stake.
The decision on interim measures, communicated in a timely manner to the relevant Maltese authorities, demanded that Malta ‘take all measures necessary to coordinate a SAR operation to rescue the 35 authors in distress, to ensure that they are not disembarked in a place where they will be at risk of torture and other forms of ill-treatment or risk to their life, and to inform the Committee about the measures taken, while their communication is under consideration by the Committee.’ The individuals were eventually rescued by Aurora, the rescue vessel of Sea-Watch, later the same day, on the 4 March. According to the information available to StraLi, UpRights and SOS Humanity, Malta did not respond to the Committee on the matter. Despite the interim measure decision, which is authoritative and mandatory, Malta remained silent, failing once again to comply with its international obligations. Malta is in breach of the interim measures decision, and this violation may lead to legal consequences.
New opportunities: preventing the commission of human rights violations in distress cases in the Mediterranean
Obtaining a decision from the UN Human Rights Committee takes years and it implies that a human right violation was actually committed. The entire purpose of the interim measure system is to prevent imminent risk(s) of irreparable damage(s), especially in cases where the right to life and the prohibition of torture and inhumane treatment are at stake. The decision is significant because it offers a new legal path for civil society organisations to ensure that the gravity of the human rights violations that migrants and refugees face in cases of distress at sea is not only acknowledged by the United Nations but, most importantly, prevented. The UN Human Rights Committee’s decision represents an historical precedent to ensure that Malta, and all the other EU Member States that turn their backs on fundamental rights and values, are immediately held accountable for their actions (or rather: inactions) towards people in distress in the Mediterranean Sea. It provides a way to increase pressure on States to ensure that they respond promptly to distress calls and make sure that people in distress at sea are disembarked in place of safety.
With this new legal tool, we hope to change the status quo and to ensure that distress calls are always picked up and immediately acted upon in order to reduce the number of human rights violations that are being committed by EU Member States in the Mediterranean Sea.
Serena Zanirato (StraLi and Lawyers for Justice in Libya)
Valerie Gabard (UpRights)
