The Aquarius incident: navigating the turbulent waters of international law

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.