THE VATICAN CITY STATE’S REFUSAL TO GRANT ITS FLAG TO SEARCH AND RESCUE VESSELS OF NGOS OPERATING IN THE MEDITERRANEAN
Valentin J. Sc h at z * and Fa b ian Endemann **
Abstract
The article discusses the stated reasons of the Vatican City State (Vatican) for declining German non-governmental organisation (NGO) Mission Lifeline’s request to act as the flag State of its search and rescue (SAR) vesselLifeline from the perspective of the international law of the sea. In this respect, the article’s main purpose is not to frame these events as a novel challenge to the law of the sea as such, but to record a rare instance of relevant State practice of the Vatican and to place it within the broader context of the Vatican’s scarce and peculiar his- torical practice in maritime matters. The article first provides an overview of the situation of SAR vessels of NGOs at the time of Mission Lifeline’s request given the increasingly hostile attitude of coastal European Union Member States. In that regard, the article focuses on the issues of deregistration by flag States and the absence of States willing to grant their flag to SAR vessels of NGOs. Next, the article analyses the reasons given by the Vatican for declining Mission Lifeline’s request. In this respect, the article shows that the Vatican could legally act as the flag State of NGO vessels conducting SAR operations in the Mediterranean. In particular, the article highlights the issues of the existence of a “genuine link”, flag State responsibilities, and vessel immunity in the light of the Vatican’s unique historical and political situation. The conclusion raises some further legal and practical challenges that the Vatican would face if it chose to grant such vessels its flag.
Keywords: search and rescue; Mediterranean; non-governmental organiza- tions; Vatican City State; flag State responsibility
1. Introd u ction
In autumn 2018, the master of the vessel Lifeline, which is operated by the German non-governmental organization (NGO) Mission Lifeline, sent a letter
* Research Associate, Chair of International Law of the Sea and International Environmental Law, Faculty of Law (Prof. Alexander Proelss), University of Hamburg, Germany. ** Research Assistant, Chair of Public Law, International Law and Global Constitutionalism (Prof. Nora Markard), Faculty of Law, University of Hamburg, Germany. The authors would like to express their gratitude for helpful comments on previous drafts of this article to: Marco Fantinato, Nora Markard, Millicent McCreath and Hilde Woker. The usual disclaimer applies.
© koninklijke brill nv, leiden, ��19 | doi:10.1163/��116133_0�801008 98 SYMPOSIUM: BALANCING HUMANITARIAN AND SECURITY REASONS to Pope Francis, asking whether the Vatican City State (or Vatican) would be willing to act as flag State of the Lifeline.1 Interestingly, the Vatican does indeed have its own shipping registry.2 On 10 August 2018, the Apostolic Nunciature to Germany forwarded a reply by the Secretariat of State of the Vatican to the master of Mission Lifeline, declining the request.3 As discussed below, in this response, the Vatican stated it was not able to serve as a flag State for theLifeline , questioning in particular the existence of a genuine link, its ability to fulfill its flag State responsibilities, and its ability to provide the passengers and crew of the Lifeline with immunity. This article discusses the Vatican’s stated reasons for declining Mission Lifeline’s request to act as the flag State of the Lifeline from the perspective of the international law of the sea as enshrined in the 1982 United Nations Convention on the Law of the Sea (UNCLOS)4 and as accepted as cus- tomary international law.5 The article’s main purpose is not to frame these events as a novel challenge to the law of the sea as such, but to record a rare instance of relevant State practice of the Vatican and to place it within the broader context of the Vatican’s scarce and peculiar historical practice in maritime matters.6 The article first provides an overview of the situation of SAR vessels of NGOs at the time of Mission Lifeline’s request given the increasingly hostile at- titude of coastal European Union (EU) Member States. The article focuses on the issues of deregistration by flag States and the absence of States willing to grant their flag to SAR vessels of NGOs. Next, the article analyses the reasons given by the Vatican for declining Mission Lifeline’s request. In this respect, the article shows that the Vatican could legally act as the flag State of NGO vessels conduct- ing SAR operations in the Mediterranean. In particular, the article highlights the issues of the existence of a “genuine link”, flag State responsibilities, and vessel immunity in the light of the Vatican’s unique historical and political situation.
1 Letter of 7 July 2018, on file with the authors. 2 Decree of the Papal Commission for the State of Vatican City concerning Shipping under the Flag of the State of Vatican City, No. LXVII, 15 September 1951, available at: