CONCURRING OPINION OF JUDGE KELLER

( Translation )

1. Although I am able to agree fully with the majority ’ s findings as to the various violation s of the Convention in the present case , I consider it useful to clarify a point that was overlooked in the discussion .

2. In paragraph 126 of the judgment, the Court finds that the preliminary investigations judge of Palerm o took the view that “the immediate transfer of the migrants was justified under Article 54 of the Criminal Code, which provided that actions taken to protect a third party from an instant danger of serious bodily harm, among other reasons, were not liable to punishment” , with reference to what is commonly known as the state of necessity ( stato di necessità ). The Article i n question reads as follows :

“Acts committed under the constraint of having to save [the perpetrator or a third party] from an instant danger of serious bodily harm shall not be liable to punishment, provided that such danger has not been voluntarily caused [by the perpetrator] and cannot otherwise be avoided, and provided that the said act is proportionate to the danger. ...”

3. The Court then states immediately afterwards, in paragraph 127, that it “does not under-estimate the problems encountered by the Contracting States when faced with exceptional waves of immigration such as that which underlies the present case” and that “[i]t is also aware of the many duties that the Italian authorities had to assume, obliged as they were to take measures to provide, simultaneously, for rescue at sea, for the health and accommodation of the migrants, and for the prevention of disorder on an island inhabited by a small community.”

4. I fear that the connection made by the Cour t in passing directly from paragraph 126 to paragraph 127 may give a false impression as regards the pertinence of A rticle 54 in the context of its examination in the present judgment . I thus find it important to point out that the proceedings before the preliminary investigations judge of Palerm o concerned only the individual criminal liability of certain officials . The “state of necessity” and A rticle 54 of the Criminal Code are therefore not relevant in assessing the State ’ s responsibility under the Convention. Admittedly, there are various circumstances under international law which pre clude the wrongfulness of an act of a State even where it is not in conformity with an international obligation . The International Law Commission, in Chapter V of its Draft articles on the Responsibility of States for Internationally Wrongful Acts ( submitted to the General Assembly as part of the Commission ’ s report covering the work of its fifty-third session, Yearbook of the International Law Commission, 2001 , vol. II ( Part Two ) ) includes in its enumeration of such factors the notion of “distress” , for which A rticle 24 provides as follows :

“1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author ’ s life or the lives of other persons entrusted to the author ’ s care.

2. Paragraph 1 does not apply if:

( a ) the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or

( b ) the act in question is likely to create a comparable or greater peril. ”

That being said, in so far as they are applicable in the present case , the Articles of that text which concern circumstances precluding wrongfulness are superseded by the special rules of the Convention ( see draft Article 55, “ lex specialis ” ). A certain number of the substantive A rticles of the Convention already enshrine a “necessity” test, through which the possible need to protect others against an instant danger may have to be taken into account. However, only A rticle 15 of the Convention enables a Contracting Party to derogate from its Convention obligations in time of emergency . Italy had not relied on A rticle 15 a nd, even more importantly, the possible de rogations in that context can never pertain to A rticle 3 of the Convention (see A rticle 15 § 2 ), as the Court has also rightly noted in the present case ( see paragraph 128 of the judgment ).