Docked in a berth of the port of Catania, Italy, there are two NGO boats with on board around 250 asylum seekers rescued in international waters: in both cases, the new far-right Italian government has stated that only women, children and people in ill health will be allowed to disembark, in clear violation of international obligations under asylum law and the international law of the sea. This behaviour is backed up by a legislative decree issued by the Government on Friday, which states that the German-flag boat Humanity 1 is prohibited from stopping inside national territorial water for a period of time exceeding the one needed for the rescue and assistance operations in regard to people currently in a state of critical medical conditions, as identified by the Italian police. Both NGO search-and-rescue vessels challenged Italy’s decision and refused to leave the Sicilian port. SOS Humanity announced it will take legal action against the government decree by appealing before the Administrative Regional Tribunal in Rome, stating that both the decree and the prevention of the disembarkation violate international and Italian law.
The Italian minister of interior justified this act by creatively interpreting asylum rights and the law of the sea: he said that any boat under a certain flag country shall be considered ‘as an island’ of that State, implicitly suggesting that in the end the government of ship flag should hold the burden of analysing the asylum requests of people rescued at sea, being considered the only safe port. This interpretation of the law has been highly criticised as in violation of the Convention on Maritime Search and Rescue (to which Italy is a party), that obliges to disembark in the closest safe port all the people rescued in distress at sea, and not just those who are elected as vulnerable; furthermore, the attempts to reach European coasts are frequently performed in such conditions to trigger the duty to rescue persons in distress as per Article 98 of the Montego Bay Convention. From another perspective, the limits to the State power regarding pushbacks of vessels in high seas originates also from provisions of international asylum and human rights law. On one hand there is the duty of non-refoulment, a jus cogens obligation which prohibits States from returning an asylum seeker to a place where there is a well-founded risk of being subject to irreparable harm, such as persecution, torture or inhuman or degrading treatments. On the other, there is the prohibition of collective expulsions as per Article 4 of Protocol 4 to the ECHR, prohibitions that applies also to high sea pushbacks as recognised by the ECtHR in the case of Hirshi Jaama v Italy, or more recently in Safi and Others v Greece. Since rescued people are entitled to the right to seek international protection by receiving the information for filing an application in a language that they understand and then by applying, rights that would be possible to fulfil only on the land, this Italian behaviour is tantamount to a collective pushback.
Refusing the disembarkation of potential asylum seekers rescued at sea is not a new habit for Italy: right-hand propaganda has for long accused NGOs to encouraging human trafficking within the Mediterranean Sea. Starting from June 2018, under the guidance of the former Minister of Interior, Italian authorities prohibited rescue vessels to enter national territorial sea or to start procedures of disembarkation while docked at an Italian port. With the intention to give legal basis to the ban on entry, it was passed the Law 77/2019 which consolidated the so-called ‘closure of ports’ policy: this discriminatory policy in breach of international obligations was the legal basis for locking potential asylum seekers for long periods and for prosecuting and then detaining captains who decided to ignore the order and start disembarkation procedures (the case of captain Carola Rackete is emblematic). However, this strategy was not successful. The laws regulating the closure of ports policy were modified in order to be neutralised already in 2020: as per the new law, nowadays when a ship wants to enter the Italian waters having operated rescue proceedings in conformity with international law and having informed the competent authorities and its flag country, Italy cannot limit the entrance and the disembarkation operations. The former interior minister Matteo Salvini, the main supporter of this law, was charged for dereliction of duties and kidnapping and is facing an ongoing trial for having refused to let a Spanish rescue vessel enter the Italian territorial seas.
However, this time the pushback has assumed a very peculiar form: instead of refusing the possibility to seek asylum to everybody, State authorities with no power to do it have operated a distinction between people in need, allowed to enter on Italy’s soil, and people marked a priori as not entailed to ask protection because, after all, they seemed to be men in pretty good conditions. The current interior minister is trying to avoid old mistakes: by allowing the disembarkation of vulnerable people he is trying to demonstrate his ‘humanitarian commitment’ and especially to avoid the charge of dereliction of duties. However, his behaviour has the potential to trigger instances of non-discrimination as per international legal norms and specifically Article 3 of the 1951 Refugee Convention: by arbitrary allowing only certain category to disembark and excluding others on a gender basis, without the attendance of a translator and not performing any psychological evaluation, the right of any asylum seeker to have his or her application reviewed is missing on discriminatory and arbitrary basis. In the end, as a ship’s captain highlighted, every rescued person has the right to disembark in a port of safety: also in this case, since this condition is not respected, violations of international law occurred and the responsible people could and should face proceeding to ascertain liability.
This recent pushback initiative, recalling an old rhetoric, is part of a broad scenario that casts doubt on the spirit of European asylum. In the meanwhile, for what regards Italy, this weekend it was automatically renewed the 2017 Memorandum of Understanding with Libya, already judged by a Criminal Court as not conform with the Italian Constitution and with international law: this act, based on cooperation to fight illegal immigration with a country well-known for its fallacies in human rights protections, is part of a vaster policy of externalisation of European responsibility towards migrants, still far from the solidarity and cooperation within EU State theoretically enshrined in the New Pact on Migration and Asylum.
By The European Institute for International Law and International Relations.
