Recently, rescue operations have been stopped by the Italian authorities and private organisations, because of the flow of migrants reaching its borders. Malta's ports are also closed to the disembarkation of migrants from Libya, and France and Greece take a similar approach.
In fact, Italy has started criminalising the disembarkation of migrants at its ports. Namely, the Master of MV Sea Watch 3, Carola Rackete, was arrested on 29 June 2019 by Italian authorities for helping and abetting illegal immigration and for forcing her way into the port of Lampedusa, in spire her being denied permission to enter and causing damage to a police speedboat that tried to block entry.
Ms Rackete was carrying on board forty rescued migrants and had waited in international waters outside of Lampedusa for seventeen days, while many of the migrants' physical and mental conditions were becoming worse. Rackete had warned the Italian authorities that she feared for the safety of her ship and those on board, but they continued to deny access.
Other NGO search and rescue vessels have been treated in a similar way by the Italian authorities. The crew of MV Iuventa are currently waiting similar charges by the Italian courts for a similar act which took place in 2017. The ship was seized, and the crew face criminal sanctions of up to twenty years in prison.
Charges against Rackete have since been dismissed by a judge in the court of Agrigento, due to the fact that she was protecting human life and that Tunisia and Libya were not safe ports for disembarkation. An important factor is the fact that the judge decided that Italian law must be interpreted according to the international law.
Subsequent vessels have disembarked migrants into the port of Lampedusa like MV Alex. Charges have again been brought against the crew for helping and abetting illegal immigration.
Whilst this new law seems to be aimed at NGO vessels, the relevant decree has not stated as such. Given the ruling of the judge in Rakete’s case, the decree which has not yet entered into law may fail to become effective legislation. The position under Italian law therefore remains unclear as to how commercial vessels needing to disembark rescued migrants, will be treated by Italian authorities
Standard Club stated.
The problem for commercial vessels rescuing migrants according to the international law is finding a place to receive migrants. Doing so could lead to lengthy delays, costs, expenses and deviation. This could disrupt schedules and the integrity of cargo on board could be affected.
The Italian government passed decree no. 141001141 (8) on 14 June. Article 1 allows Italian authorities to limit or ban the entry or transit of vessels in Italian waters for reasons of public order and security. The only exceptions to that are military or governmental ships.
The sanction for breaching such orders could result in administrative fines against the Master and /or owners of between EUR 10,000 to EUR 50,000. Repeat offending may cause a vessel to be confiscated. If criminal charges of helping and abetting illegal immigration are brought against the crew, the vessel will form part of the criminal investigation and will be detained by Italian authorities as evidence.
The decree applies to all vessels with listed exceptions. Potentially, this law could be applied to any commercial ship in Italian waters, attempting to disembark refugees in Italian ports.
Owners have the obligation to provide assistance to ships in distress and they must rescue those whose life is in danger at sea. This is an accepted norm of international customary law and has been enshrined in numerous international treaties.
The Convention For The Safety of Life At Sea (SOLAS) 1974, The International Convention on Maritime Search and Rescue (SAR) 1979, The Convention of the High Seas 1958 and the United Nations Convention on the Law of the Sea (UNCLOS) encode the obligation to rescue those in distress at sea.
When on board, those who have been rescued must be taken to a place of safety in accordance with SAR ch. 1.3.2. The interpretation of this may cause difficulties. It could be anywhere including the next port of call on the vessel’s schedule, the closest port to where they were rescued or anywhere else where they will be safe to disembark and where they will receive medical treatment if needed. According to the doctrine of sovereignty, states must give permission for the entry of any person into their territory.
If the rescued persons claim refugee status, they must not be returned to a place where their human rights will be violated.
With uncertainty over whether some European ports will give or refuse permission to disembark those rescued at sea, returning to Libya maybe the only option. However, this may be far from ideal for both owners and migrants, Standard Club said.
For owners, there is a risk of delay and potentially local unrest. With regard to the migrants, Libya has been determined unsafe by the UNHCR (The UN Refugee Agency) because of its inhumane treatment, culminating in the recent airstrike which destroyed a detention centre and killed several detainees