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Home International Tribunals European Court of Human Rights The Aquarius incident: navigating the turbulent waters of international law

The Aquarius incident: navigating the turbulent waters of international law

Published on June 14, 2018        Author:  and
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Between Saturday 9 June and Sunday 10 June, 629 migrants were rescued from overcrowded boats in the Central Mediterranean in search and rescue (SAR) operations carried out by NGOs and the Italian navy. They were taken on board by the Aquarius, a rescue vessel operated by the German NGO SOS Méditerranée and flying the flag of Gibraltar. On Sunday, the Aquarius was on its way to Italy, whose Maritime Rescue Coordination Centre (MRCC) had coordinated the operations. Around 35 nautical miles off the southern coast of Italy, Italian authorities ordered the Aquarius to stop. Italy refused the Aquarius access to its ports and prohibited disembarkation of the rescued migrants on Italian territory. This, Italy’s new Minister of the Interior Matteo Salvini announced, would be Italy’s new policy for any NGO vessel rescuing migrants in the Mediterranean.

Italy’s instructions ‘manifestly go against international rules’, Malta’s Prime Minister Joseph Muscat tweeted on Sunday night, but then himself denied the ship to dock in the port of Valletta. Malta in turn, Muscat claimed, was thereby acting in full compliance with international law. For another 24 hours, the Aquarius remained on stand-by, floating between Malta and Italy. Maltese and Italian vessels supplied the Aquarius with water and food, but neither of them gave in by offering safe haven.

On Monday, Spanish Prime Minister Pedro Sánchez announced that Spain could facilitate disembarkation of all 629 rescued individuals in the port of Valencia. When it appeared that this journey would be too dangerous for passengers and crew of the Aquarius and the Valencia-plan seemed off the table again, Italy offered its ships to facilitate safe passage to Spain.

This whole episode raises a broad variety of questions, but one stands out: Are Italy and Malta violating international law by not allowing the Aquarius to find a safe haven in one of their ports? Two legal regimes are particularly relevant in this respect: the law of the sea and international human rights law. As we argue, neither provides much clarity in relation to Aquarius-like incidents.

The limits of maritime law

The world’s oceans and seas are divided into Search and Rescue Regions (SRRs) for each of which a coastal state takes responsibility. The International Convention on Maritime Search and Rescue (the SAR Convention) requires coastal states to establish search and rescue services within their own SRRs. In addition, they are to ensure that coordination and cooperation occurs in order to disembark persons rescued in their SRRs at a place of safety.

The latter rule was inserted into the SAR Convention in 2004 following the ‘Tampa-incident’, in which the Australian government prohibited the Norwegian captain of the Tampato enter the Australian territorial sea in order to disembark the 433 migrants it had just rescued on the high seas. With the 2004 amendment, states sought to prevent future ‘Tampa-like’ incidents. However, no general rule could be agreed upon that would predetermine the specific port of disembarkation for each incident. Thus, the only clarification the 2004 amendment brought was that the state in whose SRR a rescue operation takes place is to take the lead in finding a state prepared to accept disembarkation. Malta has in any case always objected to the 2004 amendment and is therefore not bound by it.

The 629 migrants on board the Aquarius were rescued in a part of the Mediterranean Sea no state has assumed de jure responsibility for the coordination of SAR. Libya, the nearest state, has not (yet) officially established its Search and Rescue Region nor set up a Maritime Rescue Coordination Centre. De facto, Italy has filled this gap by coordinating SAR events in the ‘Libyan Search and Rescue Region’.Even if this made Italy 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.

The limits of human rights law

Given the limits of maritime law, the 629 rescued persons on the Aquarius may have recourse to human rights law, arguing that not giving them access to their ports, Italy and Malta violate their right to life. However, states have human rights obligations towards only those individuals that find themselves within the jurisdiction of that state. On the high seas, states have been considered to exercise jurisdiction when state officials were physically present at a particular incident and thereby exercised effective control over the individuals seeking protection (see for example in the case of Hirsi). In this light, had Italian or Maltese state vessels sailed to the high seas to physically prevent the Aquarius from approaching their respective territories, the persons on board the Aquarius would have found themselves within their jurisdiction.

Establishing human rights jurisdiction is more complicated when a coastal state’s agents are not physically present at the distress scene on the high seas. In particular, by instructing the Aquarius to stand by, Italy indisputably exercises some control over it. However, it is unclear whether this control is sufficient for the purposes of bringing those on the Aquarius within Italy’s jurisdiction. As we argue in a forthcoming Article (‘Non-Governmental Organisations and Search and Rescue at Sea’, available as of next week here), such instructions can only be considered as requests for cooperation, but not as legally binding orders. Yet, the European Court of Human Rights has been willing to look beyond the strict legal qualification of a measure, and instead take into account the extent to which it affords a particular state de facto authority and control over a situation or an individual.

A case in point is Women on Waves v Portugal. Even though the question of jurisdiction was not specifically addressed, the Court seemed to assume that a combination of a government notification sent to the captain of the NGO vessel in question prohibiting it to enter Portuguese territorial waters as well as placing a war ship in the vicinity, was sufficient to make the European Convention on Human Rights applicable. Whilst the relevance of SAR instructions for the purposes of establishing jurisdiction has yet to be determined by the Court, an interesting test case will be the recent application against Italy of seventeen survivors of a SAR incident in which a number of persons drowned and another group of rescued persons was pulled-back to Libya.

Thus, as the law currently stands, the decision by Italy and Malta to close their ports to the Aquarius does not evidently breach human rights law.

We need to talk about Europe…

Thus, neither the law of the sea nor human rights law provides much clarity in relation to Aquarius-like incidents. The failure by Italy and Malta to provide safe haven to the Aquarius is regrettable, at the very least, but not necessarily unlawful.

The way the Aquarius incident played out is emblematic of the lack of solidarity among EU member states in dealing with migrant arrivals. As loud as the refusal of Italy’s new government to open its ports has resonated across the Mediterranean, as quiet was it in the inland capitals of Europe. Indeed, the full weight of dealing with maritime arrivals of migrants currently rests with those member states positioned at the external borders of the EU, such as Italy, Spain, and Greece. The Aquarius incident is a reminder of the potential humanitarian consequences of this lack of solidarity.

Two important burden-sharing elements may help states like Italy coping with disembarkations: Firstly, a flexible list of safe ports (a system already applied in marine environment protection) along the European coastline of cities willing to accept disembarkations of migrants, now seems a policy option worth contemplating more seriously. Secondly, the Aquarius incident yet again demonstrates that Europe has to fix the Dublin system which now puts too much of a burden on periphery states.

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9 Responses

  1. Moritz Baumgärtel Moritz Baumgärtel

    Very good post that concisely sums up some of the complex legal questions involved. Thanks!
    However, in my view there is an elephant in the room: would Italy have had the right to (physically) prevent ships like the Acquarius from entering its ports? Note that municipalities like Palermo specifically stated that they would accept such vessels, which goes to show that MSF and others may try to force the issue in the future. I would think that any *actual* port closure would sit very uncomfortably not only with the ECHR (Art. 3 + Art. 4 Protocol 4) but also with the Dublin system, which was designed precisely to prevent such “refugee in orbit” situations (an objective that’s often conveniently forgotten nowadays). In other words, the “legality” of the whole policy hinges upon the expectation that NGOs will not pursue perfectly legal courses of actions because they are (understandably) too afraid of repressive responses, which are themselves probably illegal. Sounds like coercion to me!

  2. Dear Melanie and Kristof,
    Thanks for sharing your interesting insights.
    You are alluding to the fact that SAR operations were carried out by the NGO and the Italian navy. And indeed it has been reported that some migrants were rescued by Italian vessels and brought aboard the Aquarius. Also, as you rightly noted, currently there are Italian vessels escorting the Aquarius to Valencia. Therefore, I believe that the involvement of Italian authorities is way more
    extensive than the mere ordering the Aquarius to stand-by at sea. It seems to me that – at least for those migrants rescued by the Italian navy and certainly during the journey towards Spain – and together with the instructions transmitted by Italy to the Aquarius, it can be said that overall Italy has exercised jurisdiction within the meaning of Art.1 ECHR. In other words, if in Women on Waves v Portugal the ECtHR seemed to have accepted that an order not to enter territorial waters is enough to establish jurisdiction, here there is the further involvement of Italy in escorting the migrants and in directly rescuing some of them (similarly to Hirsi).

  3. Irini

    Thank you for highlighting the difficulties stemming from the application to concrete cases of well established general principles. EjilTalk! readers may be interested in the statement by a group of Italian law of the sea experts on the case, available at https://sidigimare.wordpress.com (English version should come shortly)

  4. Dear Melanie and Kristof, thank you for an excellent post. I am happy to say that I share most of your conclusions. However, I’m not sure that I fully understand your assessment of Italy’s responsibilty for disembarkation. Do you mean that Italy was obliged to arrange for a place of safety despite the fact that the rescue operation was not initiated within its search and rescue region? And if you mean precisely that, why would not this responsibility require Italy to arrange for disembarkation within its own territory if this was the only possible way to arrange for a place of safety within reasonable time?

  5. Jazi Zilber

    All laws were not designed for the current circumstances.

    Refugee laws were never planned to the current state where about hundreds of million of people are technically eligible to refugee status (even if most will not try to claim it today).

    SAR was never planned for the idea of refugees going to sea relying basically on SRRs and NGO systems to effectively help them go to their destination.

    My point isn’t political here (which differs). My point is legal.

    Laws whose intention was situation X are now being used under situation Y that is very far from the original intention of the laws. And it is safe to assume that many countries would never have signed to those conventions had they envisioned the current situation.

    Is there a solution? I do not know. But the laws were never planned for this. And recourse to the legal letter will not work. At least in terms of having anything like popular acceptance.

  6. […] and those on the Aquarius never made it into either Italy’s or Malta’s jurisdiction. Neither Italian nor Maltese officials were present on the scene exercising direct control over the migrants, and the direction to the ship probably […]

  7. Luigi Crema

    Thanks Melanie and Kistof for the clear insights on this worrying and difficult issue. Just to add another factor in this scenario, Italy became the only hub to rescue and host migrants in that part of the Mediterranean Sea under the Triton mission (2013-2018), even when migrants were rescued outside its Region. Starting February 1st, 2018, a new EU mission started, Themis (February, therefore it was negotiated by the old, centrist, Italian Government): that clause is not reproduced anymore, therefore the normal legal regime you well described came into force again, and NGOs rescuing people in front of Libya or Malta don’t benefit anymore of the framework of the Triton mission to get access to Italian ports.

  8. Melanie Fink Melanie Fink and Kristof Gombeer

    Thanks a lot to everyone for reading and engaging with our post.

    @Moritz: Absolutely, thanks for pointing that out. We fully agree. Physically preventing the Aquarius from entering Italian ports would have definitely triggered the applicability of the ECHR and hence raised the question of compatibility with Articles 3 and Art 4 Prot 4. This leaves us in this rather absurd situation where disobeying the (legally non-binding) order to stop would have put the Aquarius in a stronger position. Of course, as you rightly point out, for the NGOs this would be a complicated course of action to take since they practically depend on the cooperation with Italian authorities.

    Also as regards EU law (Dublin and CFR in particular) we’d need to first establish that it is indeed applicable. Maybe the refusal to let a vessel access a port qualifies as a border control activity, thereby triggering the applicability of EU law? We actually want to give this aspect some more thought for a follow-up post and will keep you informed. Ideas and thoughts are very welcome!

    @Andrea: Interesting points, thank you! We believe the crucial aspect here is that the ECHR is applicable only whilst a state exercises jurisdiction. So not before it starts and not after it ends. The jurisdiction that Italy may exercise whilst accompanying the Aquarius to Spain can trigger the applicability of the ECHR for the duration of the trip to Spain. Similarly, the jurisdiction Italy may exercise by rescuing persons makes the ECHR applicable for the duration of the rescue. However, the former occurs ‘too late’, the latter ‘too early’ to make the ECHR applicable to Italy’s decision to close its ports. To argue otherwise would require conceptualising the entire time-span from the first distress call to the moment of disembarkation as one single event over which Italy exercised jurisdiction. Other ideas on this welcome!

    @Martin: We would distinguish between being responsible for a Search and Rescue Region (SRR) and being responsible for the coordination of a specific search and rescue operation. Of course, as a rule, these two responsibilities are aligned. So, in principle, the state in whose SRR the search and rescue operation takes place, is also responsible to ensure that cooperation occurs with a view to finding a place for disembarkation (e.g. Section 3.1.9 SAR Convention). In the Libyan SRR, it would therefore theoretically be the (not yet operational) Libyan MRCC that coordinates SAR events.

    However, the SAR Convention envisages the possibility that other states take responsibility under certain circumstances. Section 3.1.9, for example, speaks of the primary responsibility of the states in whose SRR an event occurs, suggesting that other states may have a ‘secondary’ responsibility. The IMO’s International Aeronautical and Maritime Search and Rescue Manual (2016 IAMSAR Manual) more concretely provides that the ‘First RCC’ that receives a distress alert has the responsibility to arrange assistance until it can identify another RCC willing and better able to respond (see in particular Section 3.6). In a nutshell, this means that as the ‘First RCC’, the Italian MRCC was de facto responsible to coordinate the search and rescue operation, at least until another (willing and able) MRCC would take over, which did not happen in this particular case (Malta unwilling? Libya unable?).

    As regards the question whether Italy’s responsibility to coordinate the search for a place of disembarkation includes a responsibility to be that place in case the search is unsuccessful, strictly speaking, the answer would in our view be ‘no’. However, construing such an obligation is possible if the relevant obligations are interpreted extensively (SAR Convention interpreted in good faith as required by Article 31 VCLT? More extensive interpretation of the notion of jurisdiction than the European Court of Human Rights currently applies?).

    @Jazi: It is true that the drafters of these legal instruments may not have envisaged scenarios like these. Yet, fact is that we have to work with the laws that we currently have.

    @Luigi: Thank you for pointing that out. Indeed an interesting change between Joint Operation Triton and Joint Operation Themis. However, also under the ‘old’ framework, this rule only applied to those rescued within the context of Joint Operation Triton, but not to persons rescued by NGOs.

  9. Martin Ratcovich

    @Melanie and Kristof: Many thanks for yet another insightful analysis. Although I am not fully convinced of your argument that Italy was legally obliged to arrange for a place of safety merely because it had exercised certain coordination functions during the emergency phases, I do not know which other state it would have been. I think this is a serious legal gap.

    As for the second point, I feel more inclined to disagree with you. In my reading, both the SAR Convention and the SOLAS Convention (as amended in 2004) require the party responsible for the SRR to ensure that a place of safety is provided within a reasonable time. If there is no other way for the responsible party do so but to provide the place of safety itself, then this is precisely what the Conventions (as amended) require it to do. What is more, I do not think you need to use any extensive interpretation method to arrive at this result. On the contrary, I think it is quite clear that this was precisely what the parties agreed in 2004 (see for example the Preambles to the 2004 Amendments).

    Finally, I think you could take the view that the Aquarius was in distress itself when Italy did not arrange for a place of safety within a reasonable time. The concept of distress is after all quite broad (not least according to Italy and Frontex…) and I guess it would have been difficult for Italy to terminate a rescue operation initiated within its own SRR without providing a place of safety. What I mean is that the Aquarius could have put additional pressure on Italy to arrange for a place of safety within its own territory merely by issuing distress calls from within Italy’s SRR.

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