Sea Watch cases before the EU Court of Justice: An analysis of International Law of the Sea

By Dr Efthymios (Akis) Papastavridis

On 1 August 2022, the Court of Justice delivered its preliminary ruling on two joined cases (see here) concerning the conduct of Italian authorities over Sea Watch vessels that had disembarked rescued persons in Italian ports in 2020. Sea Watch is a humanitarian organisation which systematically carries out activities relating to the search for and rescue of persons in the Mediterranean Sea, using ships that it owns and operates. During the summer of 2020, Sea Watch 3 and Sea Watch 4, both flagged to Germany, carried out rescue operations and disembarked the persons rescued at sea in the ports of Palermo and Porto Empedocle (Italy). They were then subject to inspections by the harbour master’s offices because they were not certified in respect of search and rescue activities at sea and had taken persons on board in much greater numbers than they are supposed to do.

Sea Watch brought two actions for the annulment of those measures before the Regional Administrative Court of Sicily (Italy). It claimed that the harbour master’s offices had exceeded the powers of the authorities of the port State, as derived from the EU Directive 2009/16 (here). The Regional Administrative Court of Sicily referred questions to the Court for a preliminary ruling to clarify the extent of the port State’s powers of control and detention over ships operated by humanitarian organisations (here).

In its judgment, the Court interpreting the EU Directive 2009/16 in the light of relevant rules of international law of the sea, held, inter alia, that the said Directive is applicable to ships that are commissioned to carry out search and rescue (‘SAR’) activities in the Mediterranean Sea; that neither the fact that the number of persons on board was greater than what is authorised, nor that it is classified as ‘cargo ship’ by the flag State (Germany), can in themselves constitute a ground for control. Nevertheless, once such a ship has finished disembarking those persons, the port State retains the power to subject it to an inspection intended to verify whether the rules on safety at sea have been abided by. To that end, however, the port State must demonstrate, in a specific and detailed manner, that there are serious indications of a danger to health, safety, on-board working conditions or the environment. In that case, the port State has the power to adopt such corrective measures as it deems necessary. However, those measures must, in any case, be suitable, necessary and proportionate (see here for press release).

The Judgment that rejected all arguments of the Italian authorities offers many legally interesting thoughts concerning the powers of EU coastal States vis-à-vis NGOs’ rescue vessels calling at their ports, and it certainly conduces to the public and legal discourse in this regard (see inter alia here and here). As Advocate General Rantos admitted in his Opinion, ‘the main difficulty posed in these cases is the absence of international or European legislation regulating the systematic engagement in maritime search and rescue activities by private entities; activities which have increased significantly in recent years, in light of the failure of State and international organisations to confront the increasingly serious situation relating to the safety of persons crossing the Mediterranean Sea on makeshift vessels’ (para 3).

The legal status of NGO rescue vessels

A preliminary, yet significant question that the Court had to address was whether Directive 2009/16 is to be interpreted as applying to ships which, although classified and certified as cargo ships, i.e. as merchant ships carrying goods, and not as passenger ships, by the flag State, are in practice being systematically used by a humanitarian organisation for non-commercial activities relating to SAR activities.

This question could be divided into two sub-questions:

  1. First, may the term ‘government ships used for non-commercial purposes’ used in Article 3(4) of Directive 2009/16 be understood as including, by analogy, ships which, like those in question, are in practice used for ‘non-commercial’ purposes? If so, the Directive would not be applicable and, therefore, the Italian authorities could not proceed to any inspection of the Sea Watch vessels.

The Court, rightly, concurred with the Opinion of the Advocate General that ‘even though those ships contribute, de facto, to carrying out maritime search and rescue activities which in principle are the responsibility of the public authorities of the coastal State, and are, to a certain extent, required to cooperate with the system for coordinating maritime search and rescue, they are not ‘government’ ships for the purposes of Article 3(4) of Directive 2009/16’ (point 29). Indeed, under general international law, including the international law of the sea (see e.g. Article 96 UNCLOS), vessels owned or operated by a State and used on government and non-commercial service enjoy immunities from the exercise of any enforcement jurisdiction by a foreign State, including in-port enforcement.

For the purposes of the present enquiry the question is whether the NGOs’ rescue vessels fall within the definition of ‘state vessels’. First, they must be ‘government vessels’ or ‘vessels owned or operated by a State’. As the International Law Commission suggested, ‘[t]he expression “a State which operates a ship” covers also the “possession”, “control”, “management” and “charter” of ships by a State, whether the charter is for a time or voyage, bare-boat or otherwise.’ It is evident however that NGOs’ vessels, such as those in question, are neither owned nor operated by a State, yet by a private organisation. Second, the vessels concerned shall be ‘used only on government non-commercial service’, which according to the usual test under public international law is one of the nature of the act in question: whether a State is exercising powers or rights any other legal person could (acts jure gestionis) or is acting in the course of sovereign authority (acts jure imperii). In the case at hand, private vessels, such as Sea Watch 3 and 4, are exercising what is a fundamental maritime tradition from time immemorial, i.e., to render assistance to persons and vessels in distress at sea, according also with Article 98 (1) UNCLOS and SOLAS Convention Chapter V, Regulation 33 (1). Truly, in so doing, they may be requested to assist in SAR activities by the responsible coastal State, as per SAR Convention, Annex 5.3.3.5. However, such assistance by no means can qualify as an act of sovereign authority, i.e., as ‘government service’. In conclusion, Sea Watch vessels cannot be legally classified as ‘state vessels’.

  1. The second and related sub-question that was discussed by the Court was whether the fact that the activities carried out by both vessels did not coincide with those in respect of which it was classified and certified by the flag State (Germany), namely as ‘cargo vessels’, altered the vessels’ legal status. Rightly, the Court ruled that this has no bearing on its legal status, and a fortiori, on the applicability of the Directive (see also point 35 of Advocate General’s Opinion). Under the law of the sea, the classification of the vessel does not have any relevance as to whether the latter may or may not conduct SAR services; it is manifestly clear that all ships, provided that this does not entail ‘serious danger to the ship, the crew or the passengers’ (Article 98 (1) UNCLOS), must render assistance to people in distress at sea.

Finally, on this point, the classification of vessels rests exclusively with the flag State (here: Germany), and it is not a matter of third coastal States (here: Italy) to draw any conclusions from that classification. Particularly, as acknowledged by the Court, the port State does not have the power to demand proof that those ships hold certificates other than those issued by the flag State or that they comply with all the requirements applicable to another classification. It is an exclusive matter of the flag State to issue to ships to which it has granted the right to
fly its flag documents to that effect according to Article 91 (2) UNCLOS, as well as any other statutory certificates in accordance with Article 94 UNCLOS and the applicable IMO Conventions (see the list of certificates in Annex IV of EU Directive 2009/16/EC). It is not within the remit of the port State to challenge the jurisdiction of the flag State to issue such certificates. Nor, can it order the inspection and detention of vessels because they had been ‘engaged in assisting migrants at sea while … not certified for the intended service’, as the Italian authorities did in respect of Sea Watch 3 and Sea Watch 4. This is in keeping with the principle of exclusive jurisdiction of the flag State under the law of the sea, especially in administrative and technical matters (see e.g., Articles 92 and 94 UNCLOS).

The special protection of the rescue vessels under the law of the sea

The Court ruled also on whether the discrepancy between the number of persons that may be transported by the ships under scrutiny pursuant to their respective certificates and the number of persons actually transported by them in the course of the rescue operations constituted an ‘overriding factor’ according to Article 11 of Directive 2009/16, which could justify additional inspection and subsequent enforcement measures by Italy. In interpreting the said Directive in the light of UNCLOS and SOLAS Convention, the Court found that persons who are, as a result of a rescue operation at sea, on board a ship must not be taken into account when verifying whether the rules on safety at sea have been complied with. The number of persons on board, even if greater than that which is authorised, cannot therefore, in itself, constitute a ground for a control under the applicable EU and national law, specifically if these (overnumbered) persons have been rescued at sea prior to port access.

This finding is in line with the special protection that vessels, being either in distress at sea per se, or assisting persons in distress at sea, such as is the case here, afford under the law of the sea. Suffice it note Article 18 UNCLOS, which while it sets out that for the purposes of the right of innocent passage of foreign vessels in the territorial sea ‘passage’ should be continuous and expeditious, it also acknowledges that vessels may exceptionally stop in the territorial sea when, amongst others, this is rendered necessary by force majeure or situations of distress, or to provide assistance to others’.

In addition, international customary law obliges coastal States to permit vessels in distress, including vessels transferring people in distress, to access a port, offshore terminal, or other place of refuge. The situation of distress as an exculpating factor under international law (cf. Article 24 ILC Articles on State Responsibility) renders the vessel immune from any enforcement action that is related to the conduct that is excused due to distress, such as the entry to a port and the disembarkation of rescued persons. Consequently, the Court’s ruling is in harmony with international law in finding that the vessels had been transferring more people than designed to do, could not in itself constitute a ground for any enforcement measure, including inspection and detention.

Equally right was the Court though in its subsequent finding, namely that, once such a ship has finished disembarking those persons, the port State has the power to subject it to an inspection intended to verify whether the rules on safety at sea have been complied with. ‘Distress’ indeed exculpates solely the acts that are closely related to the situation of distress; once that situation has ended, the usual enforcement jurisdiction of the port State under international law applies.

Enforcement powers of the port State

The Court held that Italy, in applying Directive 2009/16 and the implementing national legislation (Legislative Decree No 53/2011) enjoys a broad discretion to determine whether there are circumstances justifying inspection of the vessels concerned. ‘However, the decision taken by that authority must nevertheless still be reasoned and, as to the substance, justified both in law and in fact. In order for this to be the case, that decision must be based on serious indications capable of establishing that there is a danger to health, safety, on-board working conditions or the environment, in view of the relevant provisions of international and EU law, having regard to the conditions under which the operation in question took place’. The Court furthermore held that in the event that the inspection reveals the presence of deficiencies, the port State has the power to adopt such corrective measures as it deems necessary, including the detention of the vessels concerned.

These thoughts of the Court are in accordance with the extent of the enforcement jurisdiction that the port State enjoys under international law. As a corollary to State sovereignty, port States enjoy, in principle, enforcement jurisdiction over vessels calling at their ports (territorial enforcement jurisdiction). Such jurisdiction may also include the power to detain unseaworthy or substandard vessels. Indeed, as Article 219 UNCLOS stipulates, ‘States which, upon request or on their own initiative, have ascertained that a vessel within one of their ports or at one of their off-shore terminals is in violation of applicable international rules and standards relating to seaworthiness of vessels and thereby threatens damage to the marine environment shall, as far as practicable, take administrative measures to prevent the vessel from sailing’.

Nevertheless, such enforcement powers are not unlimited under international law; quite to the contrary, according to recent adjudicative practice, including UNCLOS Annex VII tribunal’ Award in Duzgit Integrity case, ‘the exercise of enforcement powers by a (coastal) State (…) is also governed by certain rules and principles of general international law, in particular the principle of reasonableness. This principle encompasses the principles of necessity and proportionality.’ While thus inspection might generally be considered a necessary and proportionate means of monitoring whether there is a danger to health, safety, or the environment, as the EU Directive in question postulates, or for preventing any damage to marine environment (Article 219 UNCLOS), any prolonged or unjustified detention as well as the imposition of disproportionate burden to Sea Watch to rectify alleged deficiencies (see here) might fall afoul of the principle of reasonableness and ergo of international law. In addition, port States, in keeping with these principles, should always take active steps to ensure respect for crews’ human rights, avoid undue delays, and account for environmental or commercial concerns of the vessels in question.

In sum, the Sea Watch cases offered the Court of Justice of the EU an excellent and timely opportunity to clarify the applicable EU law on the status of NGOs’ rescue vessels in EU Member States’ ports. In so doing, the Court took very seriously into account the relevant rules of international law, including UNCLOS and the respective IMO Conventions, and issued a commendable judgment both in terms of international and EU law. Its analysis of the legal status of the vessels in question, the nature of their SAR activities, and the corresponding powers of the port State, is in full consistency with international law of the sea and, at least for these reasons, it deserves merit.

The Court ruled, amongst others, that the disembarkation of rescued persons in a port can never as such justify port State measures, and only after this disembarkation, the vessels can be subjected to the regular port State control, in accordance with the principles of necessity and proportionality. However, any inspection must not be arbitrary and must always be justified for reasons of law or fact, such as for the protection of the marine environment or the safety of life at sea. Also, as acknowledged by the above-mentioned EU Directive, ‘when port State control is exercised under this Directive, all possible efforts shall be made to avoid a ship being unduly detained or delayed. If a ship is unduly detained or delayed, the owner or operator shall be entitled to compensation for any loss or damage suffered….’ (Article 19 para 8 of the Directive 2009/16/EC). Thus any unjustifiably prolonged detention would not only be considered as a disproportionate enforcement measure, but may also trigger an obligation of compensation on the part of the port State. Finally, it was clarified that Italy, or any other port State to this effect, should not request additional certificates from vessels carrying out SAR activities to those already issued by the flag State. It is for Italian and other EU Member States port authorities to take seriously this ruling and treat such vessels in accordance with international and EU law.