Covid-19: Italy is not a “place of safety” anymore. Is the decision to close Italian ports compliant with human rights obligations?

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The Inter-ministerial Decree n. 150 of 7 April 2020 of the Italian Minister of Infrastructure and Transport, in agreement with the Ministers of Foreign Affairs, Interior and Health, has established that:

For the entire period of health emergency resulting from the spread of the COVID-19 virus, Italian ports will lack the necessary requirements to be classified “Place of Safety” under the definition of the Hamburg Convention on search and maritime rescue, for cases of rescue carried out by naval units flying a foreign flag outside the Italian SAR [Search and Rescue] area.

In short, the Decree intends to prevent all the “castaways” (in particular, migrants and asylum seekers) rescued by NGOs flying non-Italian flags from landing in Italian ports.

The measure is justified, juridically, with the declaration of a state of emergency, and politically, with the need to protect public health. The preventive effect would be threefold: first, avoidance of new outbreaks from potentially infected migrants; second, prevention of further burdens on the already overloaded national health system; third, protection of the health of migrants themselves, whom would not have adequate access to medical care in Italy due to the current crisis.

Despite these premises, there are serious doubts about the Decree’s legitimacy and compatibility with human rights law.

It must first be noted that all coastal States, including Italy, are bound to rescue and assist people in distress at sea. This duty reflects international customary law and is directly applicable in the Italian legal order via art. 10 paragraph 1 of the Italian Constitution, as confirmed by the Italian Court of Cassation. Italy is also part of a series of international treaties imposing the same obligation, such as the 1974 Convention for the Protection of Human Life at Sea (Chapter V, art. 15) and the 1982 UN Convention on the law of the sea (UNCLOS) (art. 98).

Art. 19 of the UNCLOS clarifies that a ship can be considered prejudicial to security if, inter alia, it engages in the unloading of people contrary to immigration or sanitary laws. This provision is mentioned en passant in the recitals of the Decree to justify the landing ban. However, it cannot be presumed that the people in question will pose a threat to health if they are automatically rejected without medical checks. Moreover, both literal and systematic interpretation indicate that art. 19 cannot be understood as an exception to the duty to rescue.

According to the 1979 Convention on maritime search and rescue (SAR), as amended in 2004, the duty to provide relief does not end with the recovery of castaways at sea, but entails the accessory obligation to land them in a “place of safety”, which is a: 

location where rescue operations are considered to terminate … where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met (Guidelines on the treatment of people rescued at sea attached to the SAR , par. 6.12).

The Decree itself is based on the premise that “people who may be rescued … should be assured of the absence of threats to their lives, the satisfaction of primary needs and access to basic services”. Therefore, the rescue obligation does not end with embarkment on the boat, which certainly cannot qualify as a safe place with medical care and basic services.

This view is confirmed by the Italian Court of Cassation: a ship at sea cannot be classified as a “place of safety”, since “not only it is at the mercy of adverse weather events, but also it does not ensure respect for fundamental human rights of rescued people” (Criminal Section III, sentence no. 6626/20). In further confirmation, the Court recalls the resolution no. 1821 of 21 June 2011 of the Council of Europe (The interception and rescue at sea of ​​asylum seekers, refugees and irregular migrants), according to which “the notion of “place of safety” should not be restricted solely to the physical protection of people, but necessarily also entails respect for their fundamental rights” (point 5.2).

The Court noticed that the duty of rescue entails, in particular, the respect for the fundamental right to ask for asylum pursuant the Refugee Convention of 1951. The principle of non-refoulement (art. 33 of the Refugee Convention) is a peremptory norm and cannot be derogated under any circumstances. Such principle is also encompassed by articles 2 (right to life) and 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention of Human Rights (ECHR). The mentioned provisions are mandatory and non-derogable, not to mention that Italy has not made the declaration of “derogation in time of emergency” ex art. 15 ECHR yet.

The principle of non-refoulement has extra-territorial applicability. As the European Court of Human Rights (ECtHR) clarified in Hirsi Jamaa v. Italy, Italy is obliged to respect it even when operating rescues in the high sea. However, the question arises if the principle is triggered when castaways are rescued by non-Italian vessels in non-Italian seas, in proximity of territorial waters. Arguably, the principle of non-refoulement entails also the prohibition of “rejection of entry” or “non-admission” at the border, including at the sea. Asylum seekers are protected from refoulement also when they are located on a ship close to the State’s territorial sea and they manifest their intention to ask for international protection. By virtue of the principle or non-refoulement, States should ensure admission of asylum-seekers to their territory, at least on a temporary basis, to determine their status and protection needs. At the very minimum, States should ensure adequate procedures at their frontiers to permit asylum application. This operation certainly cannot be carried out on ships (especially private ones), as noted by the Italian Court of Cassation. A fortiori, asylum seekers are covered by the prohibition of refoulement once they reach territorial waters, where they are under the State’s full control. In the Italian system, State duty to ensure access to asylum procedures is further strengthened by art.10 paragraph 3 of the Constitution, which imperatively stresses the right to seek asylum. The mentioned provision has been largely and univocally interpreted as granting the subjective right to enter the national territory in order to ask for asylum. Only once this right to entry has been ensured, the State will evaluate the existence of the requirements for international protection and decide on the seeker’ status accordingly.

This means that blanket provisions preventing effective access to asylum procedures are illegitimate. Thus, the automatic mechanism of rejection of the Decree appears in clear violation of the national and international rules relating to international protection.

Finally, the Decree conflicts with the prohibition of collective expulsions enshrined in the Charter of Fundamental Rights of the European Union (art. 19) and Protocol no. 4 to the ECHR (art. 4), as elaborated by the case-law of the ECtHR starting from Hirsi Jamaa v. Italy: applications for international protection must be considered individually and on a case-by-case basis. The Decree, on the contrary, provides for an automatic and indiscriminate rejection, forbidding disembarkment from all non-Italian ships that have carried out a rescue in international waters, despite the ships having reached the Italian SAR zone in the meantime and therefore are subject to national jurisdiction.

It should be noted that the inter-ministerial Decree, while seriously affecting fundamental rights and peremptory norms, is formally an administrative act. In the Italian legal system, ministerial decrees are not autonomous sources of law, but secondary sources which cannot derogate from the superordinate ordinary laws or the Constitution, let alone international treaties or jus cogens. The principle of legality and hierarchy of legal sources cannot be derogated even in the name of state of emergency. Furthermore, precisely by virtue of their purely regulatory nature, administrative acts escape controls by constitutional power (can only be appealed before the administrative court under stringent circumstances). Therefore, they are easily abused to legislate on sensitive topics, while their function should be implementing primary legislative sources. It is evident that the instrument of ministerial decree is unsuitable to regulate situations affecting the right to request international protection.

There are also serious doubts about the necessity and proportionality of the measure adopted. In addition to general international law, Italian constitutional law requires emergency decrees to be adopted only in “extraordinary cases of necessity and urgency” and in compliance with the principles of proportionality, reasonableness and adequacy.

As mentioned, the Decree’s objectives are three: avoid new contagions; preserve the national health system; protect migrants’ health. As for the first two goals, the Decree does not seem to be strictly required by the circumstances. It is unlikely that further disembarkments will compromise the functionality of national health structures, considering the small number of refugees rescued at sea in recent months, This number is likely to decrease, as currently there is only one NGO rescue boat patrolling central Mediterranean. Moreover, rescued migrants have not posed any threat to the national system so far. The first and only migrant positive to coronavirus has been registered on April 10th (i.e. after the imposition of the ban), among migrants who reached the Italian coast autonomously, who are not covered by the Decree.

Further, the public health objectives could be achieved more effectively by less restrictive measures. If actual epidemiological dangers were to be registered, these could be addressed with quarantine procedures and health checks, as has happened so far. Moreover, rescues by NGOs facilitate medical checks and reduce independent landings, which are likely to escape authorities’ controls or have them delayed. These arguments show that these justifications behind the Decree are, if not pretentious, at least based on unfounded concerns.

Lastly, we have noted that the ban applies only to ships flying a foreign flag. It does not sound reasonable that concerns for migrants’ health arise only in relation to the ones rescued by NGOs: if Italy cannot be considered a safe place, that would apply vis-à-vis landings assisted by the Italian Finance Police and “autonomous” landings too, which, on the contrary, continue regularly. The Decree’s premise is that “assistance and rescue to be implemented in the “safe harbour” can be ensured by the flag country.” This prognostic judgment seems rather optimistic, but in fact it is impossible to presume in advance the security of foreign ports, as we do not know what the country in question will be, nor what the situation will be in that country “for the entire period of health emergency.”

Rather, the evaluation of the safest port must necessarily be carried out on a case-by-case basis. It cannot be excluded a priori that the safest place is Italy, only by virtue of proclamation of state of emergency. The situation in Malta, Spain and other Mediterranean countries is certainly more critical than the situation in Italian southern regions, where all the landings happen. In any case, even if an alternative, safer harbour is identified, it is not presumable in advance that the rescuing ship will have sufficient resources to reach the country of flag.

In the light of the above considerations, it seems possible to conclude that the inter-ministerial Decree is unlawful as it is incompatible with both domestic and international law. A general, blanket prohibition of disembarkment may be contrary to human rights law and affect the right to asylum. In similar circumstances, a case-by-case evaluation is always required.

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Vera Magali Keller says

April 28, 2020

Dear Andrea,
thank you very much for this interesting article. Two colleagues (Florian Schöler, Dr. Marco Goldoni) and I recently also published an article on Verfassungsblog that comes to the same conclusion. Feel free to check it out at: https://verfassungsblog.de/not-a-safe-place/.
Happy to see that we agree on this and fingers crossed that the situation in the Mediterranean will improve soon.
Best regards and stay safe,
Vera