Italy has drafted a Code of Conduct which it wants to impose on NGOs carrying out Search and Rescue (SAR) in the Mediterranean. Dr. Violeta Moreno-Lax, Senior Lecturer in law at Queen Mary University of London, explains why many of the clauses are “either redundant or simply illegal.”
Sea-Watch: Perhaps we could start with the clauses which in your view are illegal. What points would you particularly mention?
Violeta Moreno-Lax: The closing paragraph states that unless NGOs sign up to the Code of Conduct, Italy would have the authority to close its ports to them. This would go not only against the Law of the Sea but also against non-refoulement under international refugee law, and the right to life under international human rights law. Only NGOs would be obliged to sign this code, not commercial ships, fishermen or warships within EUNAVFOR Med or Frontex operations: but search and rescue obligations are binding on any captain under any circumstances. So, discriminating against NGOs because their cargos are refugees and migrants would be in contravention of the duty to render assistance, which has to be provided regardless of the nationality or status of the people concerned.
SW: So does that mean the whole document is illegitimate, if forcing NGOs to sign it would in itself be a contravention of Italy’s legal requirements?
VM-L: The Code is drafted in very schizophrenic terms. On page 1, they state that the protection of human life is the main objective of the Italian authorities. If that’s true, then half of what they are proposing should not be put forward. Either Italy complies with international conventions and therefore allows access to its ports, when it relates to completion of a rescue, or it consciously abstains from doing that unless NGOs comply with the Code. But that would place the Italian state at variance with their international obligations. This is an oxymoron: Italy cannot simultaneously comply with its international obligations while requiring NGOs to abide by the Code.
SW: Is there any possible way to legally limit the obligation to render assistance, for example the point which says NGOs are not allowed to enter Libyan waters in any situation?
VM-L: No. The obligation to render assistance to anyone in danger of being lost applies everywhere at sea under the UNCLOS (UN Convention on the Law of the Sea). Whether we are talking about territorial waters of a coastal state or the high seas, it doesn’t change anything. In addition, Italy has no jurisdiction over the waters of Libya. They cannot impose an entry ban to the territorial sea of another country. And SAR NGOs have only been entering Libyan territorial waters in situations of “evident danger to human life”, exactly the caveat the Code proposes to the ban. So it would be completely redundant – the only reason SAR NGOs enter Libyan waters is to assist people in distress. Italy, I think, is trying to re-interpret the legal standard of ‘distress’ (which triggers the duty to render assistance) – but it cannot unilaterally modify international law or EU law. ‘Distress’ has already been legally defined for the purposes of Frontex-led operations, based on factors like overcrowding, lack of provisions and lack of a skilled crew – which all apply to the boats encountered by NGOs at sea.
SW: So just to be clear, the legal definition of ‘distress’ could be met simply by the fact that these boats are not seaworthy?
VM-L: Yes, and this is not me saying that, it’s Article 9 of Regulation 656/2014, which defines ‘distress’ for the purposes of Frontex-led operations. And there are a plethora of different conditions to take account of, which are not cumulative. For example, the threshold of distress would be met sooner if we’re talking about toddlers or the presence of corpses on the migrant boat. Distress is contextual. You do not need to meet all the conditions enumerated in Article 9 – maybe just one. Overcrowding in dangerous sea or weather conditions per se could reach the threshold of distress.
SW: You mentioned the principle of non-refoulement. Are there specific points which would contravene it, such as the ban on obstructing rescues by the Libyan Coastguard?
VM-L: Non-refoulement is a principle of customary international law: it’s not dependent on any country ratifying any specific legal instrument. It concerns non-return to unsafe places by those fearing for their lives in terms of persecution or other forms of serious harm. I do not think what Libya or the Libyan Coastguard is doing can be qualified legally as rescue. Rescue requires disembarkation in “a place of safety”, in line with human rights. Return by Libyan authorities to Libyan soil, where we know migrants will receive treatment at variance with the prohibition of torture, can by definition not be considered rescue. This clause is absolutely nonsensical because the obstruction is actually happening the other way around – there is video footage of several incidents which show obstruction by the Libyan Coastguard of rescue operations by SAR NGOs – and because Italy and the EU authorities should by no means be cooperating with a regime known to be abusive.
SW: Another point which has been criticised by NGOs would be the requirement to allow police officers on board. What would be the legality of that?
VM-L: If Italy wants to comply with the anti-smuggling and anti-trafficking Palermo Protocols, the powers of Board and Search regulated therein are limited to instances where the vessel in question is suspected of being involved in the crime of smuggling and trafficking. That would be the vessel of the migrants, not the rescuing vessel. NGO vessels are out of the equation. Unless there is a judicial order backing the action of the police, due to a well-founded suspicion of involvement in crime, there should not be any intervention whatsoever on the part of the Italian authorities in this sense. That would go far beyond the right of visit stipulated in Article 110 of the UNCLOS, and it would not sit well with Board and Search powers under the Palermo Protocols.
SW: Amnesty International has said: “Perversely, the proposed code of conduct for NGOs saving lives in the Mediterranean could put lives at risk.” What would the humanitarian consequences of this code be if it were put into practice?
VM-L: There are three clauses which, from the operational perspective, are very, very dangerous. One regards the obligation not to make trans-shipments. That would obligate every NGO to make their way each time to shore themselves to disembark those rescued, instead of transferring them from their boats to larger vessels. However, the strip of water where most incidents occur has typically been deserted by Frontex and EUNAVFOR units. So, if this prohibition came into being it would put the lives of those rescued in danger – as there would be fewer rescue boats available at any given time. It could also put smaller NGO boats at risk of becoming in distress themselves.
Secondly, the obligation to not use telephone communication or light signals is counter-intuitive. This cannot be forbidden. If anything, it’s required by the positive obligation to save lives at sea. It’s actually already been codified in Article 9 of Regulation 656/2014. In paragraph 2, letter g), there is a point that obliges naval units involved in SAR incidents within Frontex-coordinated operations to take “all appropriate measures” to ensure the safety of those who have to be rescued. A good faith reading of this clause includes making a phone call, or making themselves visible. SAR NGOs, when doing so, are by analogy simply fulfilling the duty of rescuing life at sea to the best of their abilities.
SW: Just to clarify, these regulations are regulations Frontex has actually obliged itself to follow?
VM-L: Yes, they obligate all those participating in Frontex-coordinated missions to take all measures in their power to make sure that lives are not going to be put at risk.
Thirdly, the obligation to hold a certification testing technical suitability for rescue capabilities – this is not required of, say, merchant ships performing rescues. The obligation under Article 98 of UNCLOS binds all captains of all vessels to perform SAR, whether they have specific certifications or not. Moreover, there is no evidence the quality of rescues performed by NGOs is lower than that by other vessels – the complete opposite is true. Since the outbreak of the crisis in 2015, NGOs have performed over 80,000 rescues, including complex medical evacuations, representing up to 30% of the 2016 total. I think this is a dishonest, desperate move to limit the presence of SAR NGOs at sea.
SW: Human Rights Watch has also criticised a number of points in the Code, speaking of “a concerted smear campaign.” Why, in your opinion, has this code been drafted?
VM-L: Most NGOs already have humanitarian charters which align with principles of humanity and neutrality. There was also an attempt to put together a consensual code of conduct by the UK-based NGO Human Rights At Sea in April 2017. I see no need for a parallel one which is state-led and imposed top-down on NGOs. The quality of rescue they are delivering is, if anything, higher than by Frontex, NATO and EUNAVFOR vessels. So there is really no operational need for it – I can only really see a political motivation behind it to decrease the number of total migrant arrivals at Italian shores.
SW: This code of conduct comes amidst accusations from the Italian side that NGOs have been cooperating with traffickers. Could you respond to these accusations from a legal perspective?
VM-L: There has been no evidence, and no charges being pressed formally at any point in time against any of the NGOs. There was actually an enquiry in April 2017 by the Italian Senate Defence Committee which was unable to find any link between the activities of NGOs and the trafficking business. There were also accusations by Frontex Executive Director Mr. Leggeri, which he later denied. There is a letter from Mr. Leggeri addressed to a number of MEPs where he said his words were misinterpreted and that actually he meant that traffickers were adapting to NGOs operating close to Libyan territorial waters. But the fact that they are there is only a response to the gap left by the retreat after ‘Mare Nostrum’ of the Italian Coastguard itself – an unlawful retreat, to my mind, as coastal states are obliged by Article 98 of UNCLOS to operate “permanent and effective rescue services.” Even those accusing the NGOs of collusion have taken their words back. There is now no-one seriously proposing that the claim stands or is based on any legal evidence worthy of the name.
SW: How would you advise Italy and other EU states to fulfil their international law obligations?
VM-L: What would be required is a complete overhaul of the Dublin system. The Dublin ‘country of first entry’ rule makes disembarkation the trigger of a chain of obligations on the reception and processing of asylum claimants. It covers 80% of all arrivals into the EU via Italy, which goes against the principle of solidarity in Article 80 of the Treaty on the Functioning of the EU. Those negotiating the reform of the Dublin system should embrace a complete overhaul of the principle of first entry. If that was done, Italy’s life would be much easier. The other piece in the puzzle is safe passage, for which Sea-Watch and other NGOs have been campaigning very actively. Safe passage is essential. People take the sea route because that is the only means left to reach safety in Europe. There are no visas for the purposes of seeking asylum – the only means for protection seekers to reach Europe is traffickers. That’s why what’s happening at sea is a tragedy of our own making. It’s a crisis that should not exist. If rather than criminalising the NGOs they were invited to the table as part of the solution, instead of part of the problem, it would send a very strong signal to public opinion, to those in need of rescue at sea, and set the basis to reconcile the European position with international law.
Interview: Sasha Ockenden (Sea-Watch)