Rescue at Sea and Asylum on Humanitarian Vessels

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The recent impasse concerning the disembarkation of nearly 600 migrants rescued in Maltese and Libyan search and rescue (SAR) zones on the Central Mediterranean by NGO vessels (Humanity 1, operated by SOS Humanity, the Ocean Viking, operated by SOS Mediterranée, lately joined by the Geo Barents, operated by Médécins Sans Frontières (MSF), and Rise Above operated by Mission Lifeline) not only constituted a test for the new Italian far-right government, but it has raised a number of legal issues. Questions on the unlawfulness of the Italian inter-ministerial decree preventing the NGO ships to disembark the rescued migrants in the national territory have been promptly addressed by experts.

However, while the governmental policy of closing the ports to deny disembarkation is nothing new, in an attempt to shift the responsibility for the reception of asylum seekers to the flag States, in a press conference, Italian Minister of Interior, Matteo Piantedosi, stated that the government decree was the ‘first act’ of a policy aimed at calling on flag countries to respect their obligations. The Minister even went so far as to invoke the possibility that migrants in need of protection apply for asylum aboard the humanitarian vessels that rescued them. This possibility is to be included in a new Code of Conduct for NGOs to be possibly promulgated by the end of the year.

While three new NGO ships (Rise Above, Sea-Eye and Life Support) with around 100 rescued are currently leaving international waters to head for Europe, this post aims to explain that the exercise of the right to seek asylum aboard humanitarian vessels with a view to determining the responsibility of the flag States is not only unrealistic but also legally unfounded.

Between Fiction and Reality: Asylum granted on Ships

The origin of the practice of asylum granted on ships stems from the classical doctrine based on the assumption that the vessels constitute ‘territoire flottant’ of the flag State or ‘detached portions of the State whose flag they bear’ as stated by arbitrator Mertens in the Costa Rica Packet case. This theory was predominant amongst early international law scholars, like Vattel or Bentham, but equating the vessel with a State territory was lately regarded by modern international lawyers as a fictio.

While different from the current situation of ships operated by NGOs attempting to enter the territorial waters to allow the disembarkation of migrants, the practice of asylum granted on ships is especially linked with the doctrine of extra-territorial or diplomatic asylum. This refers to the refuge that States grant beyond the boundaries of their territory, in places in which they benefit from immunity from the jurisdiction of the territorial State, from which the individual seeking refuge, is trying to escape. Apart from diplomatic premises, such a doctrine has been also applied to warships that, under international law of the sea, enjoy complete inviolability (Art. 32 UNCLOS). The regional practice formalised this doctrine in some treaties, such as the 1928 Havana Convention on Asylum or the 1954 Caracas Convention on Diplomatic Asylum. The correspondence of this doctrine to customary law was also originally supported by the alleged extraterritoriality of warships as well as immunity from the exercise of the jurisdiction of the coastal State. Nonetheless, the extraterritorial nature of warships has been considered outdated by scholars, including Morgenstern, while with reference to immunity, as argued by Sinha, the international practice seems to confirm that its existence does not confer the shipmasters the right to freely grant asylum. In sum, the doctrine on extra-territorial asylum aboard warships cannot find support in international law.

Duty to Render Assistance or Right to Asylum?

The limits concerning the doctrine of extra-territorial asylum aboard warships more vigorously apply to private passenger or merchant vessels in foreign ports. There are no reasonable doubts, in fact, that asylum cannot be granted aboard ships that, according to international law, do not enjoy immunity from the jurisdiction of the coastal State. This reflects a well-established practice of international law, historically illustrated by the Eisler case.

Mutatis mutandis, while not offering refuge to individuals fleeing the coastal States, such as Italy, similar considerations can be applied to the vessels operated by NGOs in the Mediterranean. The United Nations High Commissioner on Refugees (UNHCR) clarified that, despite the duty to render assistance to those in distress at sea without regard to their nationality, status or the circumstances in which they are found (Art. 98(1) UNCLOS), the shipmasters have no authority to grant asylum abord the vessel. On the contrary ‘they should inform the rescued persons that the Master has no authority to hear, consider or determine an asylum request.’

Additionally, international law establishes that any individual can apply for asylum in a safe place. This cannot be identified with a rescue vessel, which, despite being safe, is temporary and unfit to offer access to fair and efficient asylum procedures, including, inter alia, access to translators, safeguarding the privacy of the interviews, ensuring access to appropriate counsel and providing appropriate appeal mechanisms.

Consequently, the recent proposal by the Italian government about a Code of Conduct for NGOs, according to which the rescuers will have to immediately ask individuals on board to express their interest in applying for international protection, in order for the flag State to take charge of the reception of asylum seekers after disembarkation is both unrealistic and legally unfounded. As has been pointed out, it is for the coastal authorities to disembark asylum seekers and grant them access to asylum procedures. According to the UNCHR, the flag States may have primary responsibility only under certain circumstances, namely where it is clear that those rescued intended to request asylum from the flag State. However, this must be read in conjunction with the limits established by international law requiring that ‘disembarkation [is] to be effected as soon as reasonably practicable’ (SOLAR and SAR Conventions) and this does not always make it possible to proceed with disembarkation and therefore access to asylum procedures in the territory of the flag State.

Further and more stringent limits are established by European law. According to Article 3 of the Asylum Procedures Directive 2013/32/EU, in fact, there are only three possible places to lodge an application for international protection: at the border, inside the territory, or in territorial waters. To fall within these categories, a vessel should be considered part of the territory of the flag State, but, as seen above, this would not be in line with international law.

A never ending saga?

Search and rescue operations by NGOs have become a routine in the Mediterranean over the past years. This has ignited political debates full of hatred against the activities of NGOs. However, it is worth stressing that, as reported by the EU Fundamental Rights Agency (FRA), NGOs have progressively replaced State actors in launching search and rescue operations. State authorities have reduced their search and rescue activities, also to avoid to be held responsible for the rescued migrants, once they have established control over them, based on the well-established Hirsi doctrine.

Without safe channels of arrival, humanitarian vessels operated by NGOs contribute to guaranteeing access to asylum in Europe, a safeguard that ought to be guaranteed by the EU and its Member States. Accordingly, in the absence of alternatives, any measure aimed at blocking NGOs’ search and rescue activities will result in a prejudice to the right to seek asylum. Viable solutions are to be sought at the political level to break the link between disembarkation and State responsibility, thereby establishing a reliable and permanent relocation mechanism that would not overburden frontline States in the Mediterranean. This will definitely require amending the EU asylum legal toolbox, whose reform has been laying in stalemate already for more than 2 years.

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Andrea M. Pelliconi says

December 24, 2022

Excellent analysis of the Italian Minister of Interior's unlawful suggestion to process asylum application on vessels at sea. It should also be noted that the Italian Court of Cassation, in the case re: criminalisation of Captain Rackete
(Crim. Cass. III No. 6626 of 16 January 2020), clarified that 1) the duty to rescue under the LoS & Italian law does not end with the safe embarkment of a persons in distress at sea, but it also entails the disembarkment to a safe place (p. 11), and further, that 2) migrants should be safely disembarked because they have the right to seek asylum, which "clearly cannot be done aboard the ship" (p. 12). It seems evident that the suggested policy would be openly contrary to the Court's position.