Blog post by Anri Abuladze
Italy’s recent immigration decree, which imposes restrictions upon rescue activities of Search and Rescue NGOs at sea, puts the lives of migrants and refugees at significant risk and constitutes a violation of Italy’s legal obligations under international maritime law and international human rights law.
According to the United Nations High Commissioner for Refugees (UNHCR), 105,131 migrants and asylum seekers arrived in Italy by the sea in 2022, 56% more than in 2021 (UNHCR, 2023a). Some 1,453 migrants and refugees were recorded dead or missing on the Central Mediterranean Route to Italy (UNHCR, 2023b). The death toll on the Mediterranean routes is likely to rise due to Italy’s latest immigration decree limiting NGO-led rescue operations at sea. Enacted on January 3, 2023, the decree prohibits humanitarian-operated civilian vessels from conducting multiple rescues at once, that is, after the completion of one rescue, captains are required to immediately reach the port assigned by the Italian government, even if the captain sees or otherwise becomes aware of another distress situation at sea (Tranchina, 2023). The breach of these rules could result in a fine of up to 50,000 euros and the confiscation of a vessel (Aljazeera, 2022).
Italy’s policies aimed to hinder the rescue operations of humanitarian organizations at sea are not limited to the new immigration decree. Rescue vessels need to navigate for a few days in the sea in order to reach ports of disembarkation given the government’s new tactic to allocate remote ports to rescue ships (ANSA, Mellersh, 2022). Such practices not only leads to delays in rescue operations and puts the lives of people in distress in danger but also compels humanitarian organizations to bear extra costs and resources.
The Duty to Render Assistance Under International Maritime Law
Italy’s new immigration decree violates international maritime law. Article 98 of the United Nations Convention on the Law of the Sea (UNCLOS) lays down “the duty to render assistance”, obliging States to require shipmasters “to proceed with all possible speed to the rescue of persons in distress” (Article 98, UNCLOS). The duty to render assistance at sea is further codified and elaborated upon in the 1974 International Convention for the Safety of Life at Sea (SOLAS) and the 1979 International Convention on Maritime Search and Rescue (SAR). The duty applies to all vessels without any distinction, including private ships, warships, and other government vessels. Italy has acceded to the aforesaid treaties. Thus, requiring shipmasters to refrain from conducting multiple rescues during each voyage and to turn a blind eye to distress situations goes against Italy’s legal obligations under international maritime law. In addition, it could be argued that the duty to rescue persons in distress at sea has attained the status of customary international law (Barnes, 2004, p. 49).
International Human Rights Law: The Right to Life
Enshrined in Article 6 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2 of the European Convention on Human Rights (ECHR), the right to life is a fundamental and non-derogable human right, entailing a positive obligation of a State to take measures aimed at protecting one’s life in cases of “reasonably foreseeable threats and life-threatening situations” (Human Rights Committee (HRC), 2019, para. 7). In its General Comment No. 36, the Human Rights Committee (2019), a monitoring body for ICCPR, explicitly affirmed that such obligation continues to apply vis a vis persons in distress at sea:
“…States parties are also required to respect and protect the lives of all individuals located on marine vessels and aircraft registered by them or flying their flag, and of those individuals who find themselves in a situation of distress at sea, in accordance with their international obligations on rescue at sea” (para. 63).
Therefore, Italy’s new immigration decree banning NGO vessel captains from carrying out multiple rescues within the same journey constitutes a violation of Italy’s positive obligation to safeguard and protect the right to life of people in distress situations at sea.
Italy has a record of failing to protect the right to life of migrants and refugees who have sustained the situation of distress at sea. In 2021, the UN Human Rights Committee found Italy in violation of the right to life (Article 6 ICCPR) by virtue of its failure to respond promptly to distress calls from the sinking vessel that was carrying migrants in the Mediterranean in 2013. The Committee observed that even though the boat capsized in the Maltese Search and Rescue zone, there was a “special relationship of dependency” (HRC, 2020, para. 7.8) between the migrants in distress and the Italian government which arose from the moment when the Italian authorities received the initial distress call. The Committee grounded the “special relationship of dependency” on the following facts: 1) the sinking vessel made the initial contact with the Italian rescue center, 2) an Italian naval ship was present in a close proximity to the shipwrecked boat, 3) the Italian rescue center was ongoingly involved in rescue, and 4) Italy was bound by relevant legal obligations under international maritime law (HRC, 2020, para. 7.8).
The new Italian anti-rescue decree threatens the lives of migrants fleeing across the Mediterranean, contravening Italy’s legally binding obligations under international maritime law and international human rights law. Italy must withdraw the decree immediately and adhere to its duty to render assistance to, and respect the right to life of, migrants in distress at sea.
- Aljazeera. (2022). Italy tightens rules for asylum seeker rescue ships: New measures could see charities who rescue asylum seekers at sea fined and their ships impounded. https://www.aljazeera.com/news/2022/12/29/italy-tightens-rules-for-asylum-seeker-rescue-ships
- ANSA, Mellersh, N. (2022). Italy: Rescue ships forced to make longer journeys. InfoMigrants. https://www.infomigrants.net/en/post/45641/italy-rescue-ships-forced-to-make-longer-journeys
- Barnes, R. (2004). Refugee Law at Sea. The International and Comparative Law Quarterly, 53(1): 47-77.
- Human Rights Committee. (2019). General comment no. 36, Article 6 (Right to Life). https://www.refworld.org/docid/5e5e75e04.html
- Human Rights Committee. (2021). Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3042/2017. Downloaded from: https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhstcNDCvDan1pXU7dsZDBaDUJY2L8b3A9m5xpHBqokqwRvOKoShct4E0ff2XhO3TWDDoeBP0pVKyJG5hAvL50JchEaxP%2fnqaI7Jv7Knjj2eo1GDjVv4ZzJCyYl86BR70SPOjNDSf6Q9A4GJwPxMg9QdQ%3d
- Tranchina, G. (2023). Italy’s Anti-Rescue Decree Risks Increasing Deaths at Sea: New Policy Obstructs Lifesaving Work of Rescue NGOs, Violates International Law. Human Rights Watch. https://www.hrw.org/news/2023/01/09/italys-anti-rescue-decree-risks-increasing-deaths-sea#:~:text=The%20decree%20prohibits%20vessels%20of,other%20distress%20cases%20at%20sea.
- UNHCR. (2023a). Italy Fact Sheet: December 2022. Downloaded from: https://data.unhcr.org/en/documents/details/98377
- UNHCR. (2023b). Mediterranean Situation: Italy. Operational Data Portal: Refugee Situations. https://data.unhcr.org/en/situations/mediterranean/location/5205
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