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by Melanie Fink, Post-doctoral researcher, University of Leiden, Kristof Gombeer, PhD researcher at the University of Leiden and Vrije Universiteit Brussels, and Jorrit RijpmaAssociate Professor, University of Leiden

 

This post is published in view of the evening debate that will take place in the Odysseus Summer School on Thursday 12 July with the authors. The Odysseus Network wants to thank warmly the EJIL:Talk! that published an earlier version available here for the kind authorisation to put it again at the disposal of our readers.

Between Saturday 9 and Sunday 10 June 2018, 629 migrants were rescued from overcrowded boats in the Central Mediterranean in search and rescue (SAR) operations carried out by both NGOs and the Italian navy. They were taken on board by the Aquarius, a rescue vessel operated by the German NGO SOS Méditerranée and flying the flag of Gibraltar. On Sunday, the Aquarius was on its way to Italy, whose Maritime Rescue Coordination Centre (MRCC) had coordinated the operations. Around 35 nautical miles off the southern coast of Italy, Italian authorities ordered the Aquarius to stop. Italy refused the Aquarius access to its ports and prohibited disembarkation of the rescued migrants on its territory. Italy’s new Minister of the Interior Matteo Salvini announced, that this would be the new policy for any NGO vessel rescuing migrants in the Mediterranean. He made good on that ‘promise’ in the following days calling on the Netherlands, allegedly the flag state of the NGO-operated rescue vessel Lifeline, to take responsibility for the migrants rescued by the NGO.

Italy’s instructions to the Aquarius ‘manifestly go against international rules’, Malta’s Prime Minister Joseph Muscat tweeted on Sunday night, but then he himself denied the ship access to dock in the port of Valletta. Malta in turn, Muscat claimed, was thereby acting in full compliance with international law. For another 24 hours, the Aquarius remained on stand-by, floating between Malta and Italy. Maltese and Italian vessels supplied the Aquarius with water and food, but neither States gave in by offering a safe haven. On Monday, Spanish Prime Minister Pedro Sánchez announced that Spain would allow for disembarkation of all 629 rescued individuals in the port of Valencia. Italy provided two ships to facilitate safe passage to Spain. On Sunday 17 June the three vessels arrived at the port of Valencia, safely disembarking the migrants after a week at sea.

This episode raises a variety of questions, but one stands out: did Italy and Malta violate the law by not allowing the Aquarius to find a safe haven in one of their ports? Three legal regimes are particularly relevant: the law of the sea, human rights law, and EU law. As we argue, they provide little clarity in relation to Aquarius-like incidents.

The limits of maritime law

The world’s oceans and seas are divided into Search and Rescue Regions (SRRs), for each of which a coastal state takes responsibility. The International Convention on Maritime Search and Rescue (the SAR Convention) requires coastal states to establish search and rescue services within their own SRRs. In addition, they are to ensure that coordination and cooperation occurs in order to disembark persons rescued in their SRRs at a place of safety.

The latter rule was inserted into the SAR Convention in 2004 following the ‘Tampa-incident’, in which the Australian government prohibited the Norwegian captain of the Tampa from entering the Australian territorial sea in order to disembark the 433 migrants it had rescued on the high seas. With the 2004 amendment, states sought to prevent future ‘Tampa-like’ incidents. However, no general rule could be agreed upon that would predetermine the specific port of disembarkation for each incident. Thus, the only clarification the 2004 amendment brought was that the state in whose SRR a rescue operation takes place is to take the lead in finding a state prepared to accept disembarkation (Section 3.1.9 SAR Convention). Malta has in any case always objected to the 2004 amendment and is therefore not bound by it.

The migrants on board the Aquarius were rescued in a part of the Mediterranean Sea no state has assumed de jure responsibility for the coordination of SAR. Although Libya, the nearest state, has recently informed IMO of the establishment of an MRCC, it has not (yet) effectively assumed responsibility for a Libyan SRR. De facto, Italy has filled this gap by coordinating SAR events in the ‘Libyan SRR’ and therefore is often the first MRCC to respond to distress alerts in that area. The ‘first responder’ arguably has the responsibility to arrange assistance until another MRCC willing and better able to respond can be identified (see in particular Section 3.6 of the IMO’s 2016 International Aeronautical and Maritime Search and Rescue Manual). Malta being unwilling and Libya unable, Italy was left with the responsibility to coordinate the Aquarius incident. It follows that Italy had to take the lead in finding a port for disembarkation. Importantly, however, this did not place Italy under an obligation to allow disembarkation on its own territory.

The limits of human rights law

It may be argued that in the absence of conclusive rules of maritime law, the people on board the Aquarius could have invoked human rights law, arguing that by closing their ports, Italy and Malta had violated various human rights, in particular the right to life, the prohibition of refoulement, and the prohibition of collective expulsions. However, states have human rights obligations towards only those individuals that find themselves within their jurisdiction. As a rule, anyone within the territory (including the territorial sea) of a state is within that state’s jurisdiction. On the high seas, states have been considered to exercise jurisdiction when state officials were physically present at a particular incident and thereby exercised effective control over the individuals seeking protection (see for example in the European Court of Human Rights case of Hirsi). In this light, had the Aquarius disobeyed its orders and sailed to Italy or Malta the persons on board the Aquarius would have found themselves within the jurisdiction of these states. Similar considerations apply, had Italian or Maltese state vessels sailed to the high seas to physically prevent the Aquarius from approaching their respective territories.

Establishing human rights jurisdiction is more complicated when a coastal state’s agents are not physically present at the distress scene on the high seas. In particular, by instructing the Aquarius to stand by, Italy indisputably exercises some control over it. However, it is unclear whether this control is sufficient for the purposes of bringing those on the Aquarius within Italy’s jurisdiction. As argued here, such instructions can only be considered as requests for cooperation, but not as legally binding orders. Yet, the European Court of Human Rights has been willing to look beyond the strict legal qualification of a measure, and instead take into account the extent to which it affords a particular state de facto authority and control over a situation or an individual.

A case in point is Women on Waves v Portugal. Even though the question of jurisdiction was not specifically addressed, the European Court of Human Rights seemed to assume that a combination of a government notification sent to the captain of the NGO vessel in question prohibiting it from entering Portuguese territorial waters as well as placing a war ship in the vicinity, was sufficient to make the European Convention on Human Rights applicable. Whilst the relevance of SAR instructions for the purposes of establishing jurisdiction has yet to be determined by the European Court of Human Rights, an interesting test case will be the recent application against Italy of seventeen survivors of a SAR incident in which a number of persons drowned and another group of rescued persons was pulled back to Libya. Thus, as the law currently stands, the mere decision by Italy and Malta to close their ports to the Aquarius does not evidently breach human rights law, as long as there is no need to physically enforce it.

The limits of EU law

As much as the European dimension of the Aquarius incident is evident, the obligations incumbent on EU Member States as a matter of EU law are much less so. In fact, the European Commission has consistently emphasised that search and rescue is not an EU competence and has limited itself to underlining the humanitarian dimension and arguing for a speedy solution. Member States have always pointed out the EU’s lack of competence, as also evidenced by the Council statement added to the EUROSUR Regulation, following which ‘search and rescue at sea is a competence of the Member States which they exercise in the framework of international conventions’.

Yet, the EUROSUR Regulation includes the objective of contributing to saving lives of migrants and envisages that national coordination centres set up under the regulation ensure the timely exchange of information with respect to search and rescue. Moreover, Article 4 of the 2016 European Border and Coast Guard (‘Frontex’) Regulation includes search and rescue operations as a component of the EU’s concept of Integrated Border Management, but only to the extent that they arise during border surveillance operations at sea that are coordinated by the EU agency Frontex.

Even in those cases, the applicable ‘Sea Borders Regulationin principle only requires that the Member States participating in Frontex-coordinated joint operations cooperate with the responsible MRCC to identify a place of safety and ensure speedy disembarkation of the rescued persons. It is only in case a Member State ship cannot be released of its obligation to render assistance “as soon as reasonably practicable”, taking into account the health and safety of the people on board, that the host Member State becomes responsible for disembarkation. In addition, the Operational Plan of Frontex-coordinated Joint Operation Triton, active in the Central Mediterranean until February 2018, had designated Italy as a place of disembarkation for persons rescued by default. However, the Operational Plan of Joint Operation Themis, which replaced Triton as of February 2018, did not contain such provision.

As for EU fundamental rights law, in particular the Charter of Fundamental Rights of the European Union, applicability would be triggered as soon as a Member State acts within the scope of EU law. This would be the case when patrolling the external sea borders in accordance with the Schengen Borders Code (an EU Regulation), regardless of whether this takes place within or outside the context of a Frontex operation. This raises the question whether the Schengen Borders Code is applicable beyond the territory of EU Member States, including in situations such as the Aquarius incident. A prior version of the ‘Sea Borders Regulation’, adopted in the form of an implementing decision to the Schengen Borders Code adopted by the Council, was annulled by the Court of Justice of the European Union in a case brought by the European Parliament. The reason was a formal one: the Council had exceeded its implementing powers. As such the Court of Justice did not have to engage in the Parliament’s other pleas including the territorial scope of the Schengen Borders Code. In the words of Advocate General Mengozzi this was a ‘delicate question’, which the Court would likely be called upon to rule on in the near future. He could soon be proven correct.

What does this mean for the situation of the Aquarius? In short, since the rescue operation did not take place in the context of a Frontex-coordinated joint operation, the ‘Sea Borders Regulation’ does not apply. Even if it had, it does not contain specific obligations on disembarkation. It could be argued that the refusal to let the Aquarius proceed to an Italian harbour, constituted a de facto refusal of entry of its passengers. The question is whether such refusal would be covered by the Schengen Borders Code. If so, this would have allowed the migrants on board the Aquarius to avail themselves of the protection of the safeguards contained in that code. It would also have brought them within the scope of EU law, triggering the applicability of the Charter of Fundamental Rights. What is clear however is that had the Aquarius decided to disobey the orders of the Italian government and proceeded to an Italian port, this would have triggered the applicability of EU law (including the EU’s asylum acquis) upon entering the Italian territorial waters.

Where do we go from here?

The law of the sea, human rights law, and EU law do not provide conclusive answers in relation to Aquarius-like incidents. It is in only in the context of Frontex-coordinated joint operations that the host Member State could ultimately become responsible for disembarkation. The failure by Italy and Malta to provide a safe haven to the Aquarius is deplorable from a humanitarian point of view, but it is not necessarily unlawful. At most, Malta and Italy can be said to have violated obligations to cooperate in good faith in finding a port of safety.

The way the Aquarius incident played out is emblematic of the lack of solidarity among EU Member States on the question of migrant arrivals. Currently, the full weight of dealing with maritime arrivals of migrants currently rests with those Member States positioned at the external borders of the EU, such as Italy, Spain and Greece. Italy’s new government has given a clear signal that it no longer accepts this situation. The Aquarius incident is a painful reminder of the human and political consequences of the lack of European solidarity, putting a severe strain on the SAR regime in the Mediterranean.

Two important burden-sharing elements may help states like Italy in coping with disembarkations of migrants. Firstly, a flexible list of safe ports (a system already applied in marine environment protection) along the European coastline in Member States willing to accept disembarkations, should be considered seriously. The idea of ‘regional disembarkation platforms’ is currently being discussed at EU level. It is unclear whether they would be situated on European soil or in third countries, but the latter would again raise a range of legal questions.

Secondly, the Aquarius incident once more demonstrates that Europe has to fix the Dublin system which now puts too much of a burden on periphery states. At the moment, taking responsibility for migrants disembarkations after search and rescue means that responsibility will also have to be taken for the processing of their asylum applications or returns. A first step could be ‘delinking’ these two responsibilities as suggested, for example, here and here. However, the proposed recast of the Dublin Regulation only provides for an emergency relocation mechanism which is much contested, but retains the principle that in most cases the country of first arrival will be the responsible Member State.