New Technologies in International Law / Tymofeyeva, Crhák et al.

though, they would have been able to navigate and undertake a SAR, even under worse weather conditions, as they are professionally equipped to undertake such rescue missions. 912 While in casu there was no distress call from the migrants to alert the Italian authorities of their need of assistance at sea, the use of surveillance technology by Frontex, altered the relevant authorities of a strong likelihood of an emergency that arguably should have been marked as a Search and Rescue event. It appears that the primary cause of this human tragedy stems from Italy’s negligent acts vis-à-vis failure to launch a SAR mission within its SAR zone, resulting in fatal consequences. Whilst in the case Frontex submitted that there appeared to be ‘no signs of distress’, the evidence from the surveillance technology indicated strong elements that the vessel was in distress as it showed a high number of people on board with adverse sea conditions, meaning that the situation at sea was extremely perilous. 913 Importantly, the 1979 International Convention on Maritime Search and Rescue (SAR Convention) provides Article 2.1.9 of the Annex that ‘on receiving information that a person is in distress at sea in an area within which a Party provides for the overall co-ordination of search and rescue operations, the responsible authorities of that Party shall take urgent steps to provide the most appropriate assistance available’. 914 This is also reflected in Regulation 33 Chapter V of the 1974 International Convention for the Safety of Life at Sea with reference to shipmasters who are in a position to be able to provide assistance ‘on receiving information from any source ’ (emphasis added). 915 Hence the existence of positive information about a vessel in danger signifies a reasonably certain distress situation that reaches the threshold of the application of the duty to render assistance at sea. This is further supported by the international law of the sea framework, which provides that coastal States have authority over distress incidents in their SAR zone. This entails a due diligence obligation, requiring authorities to exercise best efforts to activate available SAR services in that geographical area and employ all adequate measures to save lives. 916 Another example is the Nivin incident of 2018. In this case, a Spanish surveillance aircraft (part of the then EU’s anti-smuggling mission Operation Sophia ) spotted a migrant’s boat in the Libya SAR zone and passed this information to both the Italian and Libyan Coast Guards, who then instructed a Panama-flagged merchant vessel that was nearby, the Nivin , to take all rescuees back to Libya, in violation of their rights. The incident resulted in an individual complaint currently before the Committee, the SDG v Italy . 917 The argument put forth is that the Italian authorities through their 912 Italian Post News, ‘Shipwreck, prosecutor investigates rescued delays’ ( Italian Post , 2 March 2023) . 913 Papachristodoulou A, ‘Shipwreck after Shipwreck: Frontex Emergency Signals and the Integration of AI systems’ (Verfassungsblog, 11 March 2024) . 914 Emphasis added. 915 International Convention for the Safety of Life at Sea, 1974, as amended, 1184 UNTS 278 (adopted 1 November 1974, entered into force 25 May 1980). 916 UN, ‘State Responsibility: Second Report on State Responsibility, by Mr. James Crawford, Special Rapporteur’, UN Doc. A/CN.4/498 (1999) . 917 ‘Communication to the United Nations Human Rights Committee In the Case of SDG against Italy

217