The Aquarius Incident and the Law of the Sea: Is Italy in Violation of the Relevant Rules?

On 10 June, Italy refused Aquarius, a rescue vessel operated by the German NGO SOS Méditerranée, access to its ports and the disembarkation of more than 600 rescued migrants on Italian territory. This decision of the Italian authorities has elicited a considerable amount of criticism, both by European governments (Malta, Spain, France) and by the academic world (eg, this statement by a group of Italian lawyers). The post by Melanie Fink and Kristof Gombeer offers a valuable review of the incident and sheds light on various issues raised mainly with respect to maritime law and human rights law. Although Aquarius arrived safely in Valencia a week later, on Sunday 17 June, there are serious concerns that this was just the beginning of similar incidents, particularly in view of the announcement of the Italy’s new Minister of the Interior Matteo Salvini that this would be Italy’s new policy for NGO vessels rescuing migrants in the Mediterranean. Indeed, there have been reports of another similar denial of access to ports on the part of Italy, which markedly displays the growing importance of this issue. These incidents are just another link in the chain of the ongoing refugee crisis in Europe and, to no surprise, the EU called an Informal working meeting on migration and asylum issues on 24 June in preparation of the European Summit on 28 June regarding migration issues.

This post addresses the international law of the sea applicable to incidents like Aquarius, specifically questions relating to the closing of ports, the disembarkation question and the ordering or warning of vessels not to enter the territorial sea.

Is Italy entitled to close its ports under international law?

Vaughan Lowe’s concluding remark in his seminal article on access to ports more than 40 years ago, that ‘clearly the presumption lies in favor of the right of the coastal State to deny entry’, is considered to be an accurate representation of the law today. States enjoy exclusive sovereignty in their internal waters, including ports. This means that no State is obliged to allow foreign vessels into its internal waters and especially its ports, except in cases of distress or force majeure [Churchill & Lowe, The Law of the Sea, (1999), 63], or where this is provided for in a bilateral or multilateral treaty, such as the 1923 Convention and Statute on the International Regime of Maritime Ports and Protocol of Signature.

In the present case, the obvious ground on which, arguably, access should have been given to Aquarius was distress, since many of the persons on board were reported as traumatized and in medical need. Historically, a ship in distress has a right to be granted access to a port, an offshore terminal, or another place of refuge, even if, absent the distress, there would be no right of access. Distress is usually invoked by vessels in the territorial waters of the coastal State and not on the high seas, as was Aquarius, but it is reasonable that such right equally exists for vessels on the high seas.

Of course, the crux of the matter is whether Aquarius was indeed in distress. According to International Convention on Search and Rescue (SAR) Annex, para. 1.3.13, distress phase is defined as a situation wherein there is a reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance. Without dwelling on whether the situation on board Aquarius properly qualified as distress, it is submitted that even in that case, Italy could still deny access to the vessel if it provided immediate and sufficient medical assistance to the persons in distress on board the vessel. The coastal State is not strictly obligated to grant access to the vessel as such if the life of the people on board is not at risk anymore (see the decision of the Irish High Court of Admiralty in ACT Shipping (OTE) Ltd v Minister of the Marine 48].

To conclude on this issue, Italy is entitled under international law to regulate and even deny access to its ports subject to the exception of vessels in distress which is pertinent here. Even in those cases, however, it may still deny access provided that the necessary measures are taken vis-à-vis the persons on board terminating the situation of distress.

Is Italy under a duty to disembark rescued persons in its territory?

In their post, Fink and Gombeer rightly assert that even if Italy was ‘the state responsible under the SAR Convention, it only follows that it would have to take the lead in finding a port for disembarkation. It would not, however, place Italy under an obligation to allow disembarkation on its own territory’. As I have argued elsewhere, a major shortcoming of the relevant treaty regime is that it does not formally obligate the coastal State responsible for the Search and Rescue Area to disembark rescued persons on its own territory, but only impose rather an obligation of conduct, i.e. to ensure swift disembarkation on a place of safety (SAR Annex, para 3.1.9. as amended in 2004). Even though an interpretation of the relevant provision of the SAR Convention based on the principle of the effectiveness would readily lend support to a default obligation of disembarkation on the SAR responsible State, the divergent practice of the States concerned warrants that this is still a matter of contention (see comments to this post).

However, such default rule of disembarkation does exist for Italy with respect to the FRONTEX coordinated maritime operations for which Italy is the host Member State. According to Article 10 (1) of Regulation (EU) No 656/2014,

if it is not possible to arrange for the participating unit to be released of its obligation referred to in Article 9(1) as soon as reasonably practicable, taking into account the safety of the rescued persons and that of the participating unit itself, it shall be authorised to disembark the rescued persons in the host Member State.

Thus, as far as Joint Operation Triton and the newly established Joint Operation Themis are concerned, Italy must ultimately accept disembarkation in its territory as the host Member State. In addition, Italy is designated as the State of disembarkation in all interdiction operations as well as SAR operations, by reference to the corresponding rules of Operation Triton, conducted in the context of EUNAVFOR Operation Sophia off the coast of Libya.

It follows that in the cases in which Italy is the ‘government responsible for the search and rescue region’ or when it assumes responsibility as the first Rescue Coordination Centre to be notified of a distress signal and in absence of other Centres available to take action (in casu, Libya or Malta), it is Italy which has the ‘primary responsibility’ to coordinate disembarkation, for example in Spain, as happened with Aquarius. Save in cases that Italy acts as the host Member State of EU operations, in all other SAR situations Italy is under a due diligence obligation to ensure the disembarkation in a place of safety and not an absolute duty, an obligation of result to provide for disembarkation in its ports. Having said that though, the onus will rest with Italy to substantiate that not accepting the rescued persons in its territory is in conformity with its above-mentioned due diligence obligation.

Is Italy entitled to order NGO vessels to stop prior entering into its territorial sea?

As reported in the post by Fink and Gombeer, when Aquarius was around 35 nautical miles off the southern coast of Italy, Italian authorities ordered it to stop. Other resources report that Italy made its position known (that it would not accept the ship) when the ship was at 35nm off its coast (for example see here). Possibly, this will also occur in the future in relation to other NGO vessels.

If the former option is true, the following remarks are in order: Italy is not entitled to order the stop of a vessel on the high seas for these purposes. Under the law of the sea, the coastal State has the right to ‘take the necessary steps [in its territorial waters] to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject’ (Article 25 para 2 UNCLOS), while, if it has declared a contiguous zone (up to 24 nm from is baselines), it may take respective measures in order to prevent the infringement of its immigration laws and regulations (Article 33 para 2 UNCLOS). Beyond this limit, international law does not afford any grounds for interfering with the navigation of foreign-flagged vessel – besides the rare case within the safety zones of offshore platforms – for immigration purposes.

In view of the fact that, to my knowledge, Italy has not officially promulgated a contiguous zone. For example, no registration of such zone appears on the website of the UN Division for Oceans Affairs and the Law of the Sea, with which States usually – but not mandatorily – register their national legislation on maritime zones. Therefore, it is readily apparent that it is not entitled to assert any enforcement jurisdiction over such rescue vessels beyond its territorial waters, save in cases in which the flag State has consented. Therefore, the order to stop given to Aquarius 35 n.m. off its coast and any such order in the future lack the requisite legal basis.

The next question is whether this order amounted to an interference with the freedom of navigation on the high seas under Article 87 of UNCLOS. When reference to interference is made, it usually denotes physical interference with the vessel, i.e. interdicting, boarding, or diverting the vessel from its course. In the present case, while the master of Aquarius was under no obligation to adhere to the said order, he did so. Was this a free choice? Probably not. However, without knowing the exact content of the order under scrutiny, it is difficult to draw firm conclusions. Arguably, if the order in question reflected a certain degree of coercion on the part of the Italian authorities, i.e. the order was phrased as a threat of the interdiction of the vessel, whilst still on the high seas, then it might have amounted to a violation of Article 87 of UNCLOS. In any event, it is beyond any doubt that Italy was in no way entitled to issue such order.

If, on the other hand, the Italian authorities simply issued a formal warning to ship, when it was 35nm off its coast, not to enter Italy’s territorial waters, it is submitted that there is no violation of the law of the sea. Coastal States may warn vessels due to their ports on the conditions to which admission of those vessels is subject prior to entering their territorial sea. For example, a similar warning, or a ‘caution note’, as was phrased, by the Russian authorities to the Arctic Sunrise not to enter the safety zone of offshore platforms was not considered by the Arbitral Tribunal in the Arctic Sunrise case (The Netherlands v. Russia) as a violation of the freedom of navigation (see in particular, paras 82 and 212). In addition, many international instruments provide for an advance notice of entry into ports, even three (3) working days prior to the entry, whilst the vessels concerned are still on the high seas (see Article 8 of the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing). Thus, it is a common practice of States to communicate with vessels, even on the high seas, with respect to the conditions of entry into their ports, as perhaps in the case of Aquarius.

As to the question why Italy did not wait for the vessel to enter in its territorial waters in order to take the necessary measures, the answer lies not in the law of the sea, but in the Common European Asylum System (CEAS) and the relevant obligations under international refugee law and EU law. Suffice to note that the provisions of the EU Asylum Procedures Directive, setting out the duties of EU Member States to process applications for international protection, ‘apply to all applications for international protection made in the territory, including at the border, in the territorial waters …’ (Article 3). It could be argued that such obligation applies also on the high seas in light of the principle of non-refoulement and the Hirsi judgment, but this seems not to hold true in the case at hand.