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The Missing Obligation to Disembark Persons Rescued at Sea

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The Missing Obligation to Disembark Persons Rescued at Sea THE MISSING OBLIGATION TO DISEMBARK PERSONS RESCUED AT SEA Kiara Neri * Abstract Since 2015, several European NGOs have developed rescuing activities in the Mediterranean Sea, in response of the great amount of death of mi- grants trying to reach the European border. The activities of these NGOs raise a number of legal issues, namely the compatibility with international law of their activity, the right for a coastal State to order a private ship to stop while in the high seas, or the question of disembarkation of the persons rescued at sea. This last point will be the object of the paper. Do coastal States have an obligation under international law to disembark rescued people on their ter- ritory? This issue is topical since Malta, Italy and France are systematically denying NGO vessels the right to disembark their passengers in their national ports. This paper will address this legal issue and argue that neither general international law, nor law of the sea, nor human rights law provide for such an obligation. However, the obligation can be found, under certain conditions, in European Union law. Keywords: search and rescue operations; obligation to disembark; access to European ports; non-refoulement principle 1. Introd U ction Since 2015, several European non governmental organizations (NGOs)1 have developed rescue activities in the Mediterranean Sea, in response to the number of deaths of migrants trying to reach the European border. These organi- sations have taken the lead on the search and rescue operations in the Central Mediterranean Sea in recent years, as highlighted by David Hammond, CEO of Human Rights at Sea: Civil society-led search and rescue NGOs have been a princi- ple proactive search and rescue humanitarian actor in the central Mediterranean for the past five years. This has been undertaken on a voluntary basis and which has involved European citizens putting their lives in danger to save life at sea. Imposed or planned imposed * Maître de conférences HDR (Associate Professor), Université Jean Moulin Lyon 3. 1 For instance SOS Méditerranée, Sea-Watch, Save the Children, Open arms, Sea Eye, Jugend Retett, etc. © koninklijke brill nv, leiden, ��19 | doi:10.1163/��116133_0�801005 48 symposium: BALANCING HUMANITARIAN AND SECURITY REASONS restrictions on the freedom of action by NGOs without consultation or engagement should be challenged at first instance.2 The activities of these NGOs raise a number of legal issues,3 namely the com- patibility with international law of their activity,4 the right for a coastal State to order a private ship to stop while in the high seas,5 and the question of disembar- kation of the persons rescued at sea. This last point is the focus of this article. Do coastal States have an obligation under international law to disembark rescued people on their territory? This issue is topical given that Malta, Italy and other European Union Member States are frequently or even systematically de- nying NGO vessels the right to disembark their passengers in their national ports. Moreover, the recent Italian “Code of conduct for NGOs undertaking activities in migrants’ rescue operations at sea” allows NGO vessels to disembark migrants in Italian ports provided that they agree to collaborate in the fight against smugglers and the presence of law enforcement personnel on board. The Code consequently allows Italy to deny disembarkation of rescued persons as a counter-measure in case of failure to comply with the commitments of the Code.6 This paper will ad- dress this legal issue and argue that neither the law of the sea (Section 2) nor hu- man rights law (Section 3) provides for such an obligation. However, the obliga- tion can be found, under certain conditions, in European Union law (Section 4). 2. TH E OB li G ation to Disem B ar K Under T H E Law O F T H E Sea The search for an obligation to allow persons rescued at sea to disembark in a national port raises two main issues: does the obligation to allow entry into maritime ports exist under international law, preventing the coastal State from 2 Voluntary code of conduct for search and rescue operations undertaken by civil society non-governmental organisations in the Mediterranean Sea, 29 March 2017, available at: <ht- tps://humanrightsatsea.org/wp-content/uploads/2017/03/20170302-NGO-Code-of-Conduct- FINAL-SECURED.pdf>. 3 Gom B eer and Fin K , “Non-Governmental Organisations and Search and Rescue at Sea”, Marsafelaw Journal, 2018, p. 1 ff. 4 See for instance recent criminal investigations in Greece, Italy and Malta against NGOs owning these search and rescue ships and/or against individual crew members, i.e. the fol- lowing cases: Iuventa (operated by Jugend Rettet); Open Arms (operated by ProActiva Open Arms); Golfo Azzurro (operated by ProActiva Open Arms); Vos Hestia (operated by Save the Children); Sea Watch; and Lifeline. For a complete overview, see European Agency for Fundamental Rights, “Fundamental rights considerations: NGO ships involved in search and rescue in the Mediterranean and criminal investigations. Tables and figures”, available at: <https://fra.europa.eu/sites/default/files/fra_uploads/fra-2018-ngos-sar-mediterranean_ en.pdf>. 5 See PapastaV ridis , “The Aquarius Incident and the Law of the Sea: Is Italy in Violation of the Relevant Rules?”, EJIL: Talk!, 27 June 2018, available at: <https://www.ejiltalk.org/the- aquarius-incident-and-the-law-of-the-sea-is-italy-in-violation-of-the-relevant-rules/>. 6 Code of conduct for NGOs undertaking activities in migrants’ rescue operations at sea, July 2017. The Code was drafted in coordination with the European Commission..
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