Persisting ambiguity in the "Clear Risk to Safety" standard fosters continued uncertainty for migrants seeking refuge aboard rescue vessels in the Mediterranean Sea.
Sea-Watch 3 is one of many migrant sea vessels occupying waters off the Italian coast.[1]
For many years, migrant rescue vessels have used what they call the “central route” to cross the Mediterranean Sea from countries like Libya and Tunisia to countries in Europe.[2] The number of migrants has ballooned to a staggering two million since 2014; small isles like Lampedusa, situated not far from the African coast, make Italy a top choice for many migrants.[3] This situation has led Italian harbor masters to take charge of their duties in an unprecedented manner. Italy’s Ministry of Defense defines these harbor masters’ duties to include “the management of port operations, port safety and security, state property, environmental protection, and Search and Rescue (SAR) operations.”[4] Italian harbor masters have performed these duties at Italian ports by detaining migrant rescue vessels sponsored by international rescue organizations.[5]
In 2022, Sea Watch, a non-profit refugee organization, appealed a case against Italian harbor masters in the European Court of Human Rights (ECtHR).[6] The ECtHR was created by the European Convention for Human Rights (ECHR), an organization separate from the European Union that protects the human rights and fundamental freedoms of every person in each of its member states.[7] All EU member states have ratified and are therefore legally bound to the ECtHR.[8] In appealing to the ECtHR, Sea Watch’s case against the Italian harbor masters reveals the contentious and often conflicting applications of the law emerging from the migrant crisis in not only Italy, but also throughout Europe and the world at large. How does the United Nations Convention on the Law of the Sea (UNCLOS) determine when rescue at sea is appropriate?[9] Is that determination in conflict with the jurisdiction member nations have over their home ports?[10]
The appeal discusses the Italian harbor masters’ detainment of two Sea Watch migrant rescue vessels.[11] Although certified as cargo ships, the vessels rescued hundreds of migrants–many of whom began their journey in the aforementioned African countries–and brought them to the closest Italian port.[12] Sea Watch appealed the detainments from the Regional Administrative Court of Sicily (Court of Sicily) to the ECtHR, alleging violations of the United Nations Convention on the Law of the Sea (UNCLOS) by the Italian authorities.[13] Sea Watch cited a few notable articles of UNCLOS providing guidelines to determine when vessels are obligated to rescue other vessels, including:
Article 17, which ensures right of passage for all vessels through the territorial sea of another nation; and
Article 24, which prevents costal states from hampering the innocent passage of vessels and explicitly forbids the imposition of requirements on foreign ships that deny or impair the right of innocent passage.[14]
The Italian government, specifically the Court of Sicily, defended the detainment on the basis of EU Directive 2009/16.[15] The Court of Sicily alleged that Directive 2009/16 allows for the detainment of “unsafe and unregistered” vessels under “the authority to inspect and seize vessels in the interest of safety and to ensure compliance with international maritime law. . . .”[16] The Court of Sicily also contended that the status of the vessels, as well as their missing certifications, demanded their detainment until the vessels could operate safely within the law.[17] As the Court of Sicily approved the detainment on the basis that the migrant rescue ships were registered as cargo ships, not as vessels for transporting people, the status designated to each vessel was an important distinction.[18]
The ECtHR Grand Chamber ruled that detainment was not appropriate where there was no clear risk to the safety of the people on the vessels, or of the vessels themselves.[19] The Grand Chamber held that Directive 2009/16’s “clear risk to safety” doctrine applies
to ships which, although classified and certified as cargo ships by the flag state, are in practice being systematically used by a humanitarian organization for noncommercial activities relating to the search for and rescue of persons in danger or distress at sea; and precluding national legislation ensuring its transposition into domestic law from limiting its applicability only to ships which are used for commercial activities.[20]
The ECtHR held that the “clear risk to safety” standard applies to any vessel within the court’s jurisdiction–including vessels subject to Italian law–and rejected the Sicilian Court’s narrow interpretation of Directive 2009/16.[21] Rather than limiting the Directive’s applicability to ships used for commercial activities, the ECtHR found that the Directive’s exceptions for “government ships used for non-commercial purposes” and “pleasure yachts not engaged in trade” do not preclude the Directive’s application to ships falling outside these categories that are nonetheless “used for ‘non-commercial’ or ‘non-trade’ purposes.”[22]
The “clear risk to safety” standard, as clarified by the ECtHR, has major consequences for international sovereignty, and raises new, complex legal issues regarding enforcement.[23] While the ECtHR’s ruling allows for strict enforcement as to commercial vessels, it leaves open the interpretation of what constitutes a clear risk to safety in other situations. After the ECtHR decision, it is not immediately clear how harbor masters should ascertain whether there is a sufficient risk to warrant detainment.[24]
The persisting ambiguity surrounding the “clear risk to safety” standard provides an avenue for harbor masters throughout Europe to deny safety to migrants by detaining rescue vessels at ports across the continent. It is possible that harbor masters will understand the standard’s vagueness to be a broad grant of deference to their judgment, authorizing their continued detainment of the rescue vessels.[25] More cases are likely to arise from harbor masters exercising discretion in identifying threats to safety and detaining rescue vessels, so only time will tell whether the uncertainty surrounding the “clear risk to safety” standard will come to the aid of migrants or in itself pose a threat to their safety.[26]
[1] Photograph of migrant sea vessel Sea Watch 3, in Simon Cullen, Migrant Rescue Ship Accuses Italy of Inventing Faults to Hinder Operations, CNN (Feb. 1, 2019, 11:52 AM), https://www.cnn.com/2019/02/01/europe/italy-coast-guard-blocks-migrant-ship-intl/index.html.
[2] Marco Manzone, NGOs Vessels and Port State Control Carried Out by the Italian Authority: The Interim Decision on the Suspension of the Detention of M/V Sea-Watch 4, International Bar Association (Dec. 21, 2021), https://www.ibanet.org/ngo-vessels-port-state-control.
[3] Ruth Sherlock, Desperate People from North Africa Landed on the Mediterranean Island of Lampedusa, NPR (Sep. 22, 2023, 7:20 AM), https://www.npr.org/2023/09/22/1200994889/desperate-people-from-north-africa-landed-on-the-mediterranean-island-of-lampedu.
[4] Officers, Marina Militare, Ministero Della Difesa, https://www.marina.difesa.it/EN/thefleet/personnel/Pagine/officers.aspx (last visited Feb. 9, 2024).
[5] Molly Quell, EU Court Rules Against Italy in Dispute Over Seizure of Migrant Rescue Ships, Courthouse News Service (Aug. 1, 2022), https://www.courthousenews.com/eu-court-rules-against-italy-in-dispute-over-seizure-of-migrant-rescue-ships/.
[6] Council of Europe, FAQ The Grand Chamber, European Court of Human Rights (2021). https://www.echr.coe.int/documents/d/echr/FAQ_GC_ENG.
[7] European Convention on Human Rights (ECHR), Europe’s Human Rights Watchdog,
https://www.europewatchdog.info/en/convention-on-human-rights/#:~:text=It%20entered%20into%20force%20in,legally%20bound%20by%20this%20treaty (last visited Feb. 9, 2024).
[8] Id.
[9] Efthymios (Akis) Papastavridis, Sea Watch Cases Before the EU Court of Justice: An Analysis of International Law of the Sea, EU Immigration and Asylum Law and Policy (Dec. 12, 2022), https://eumigrationlawblog.eu/sea-watch-cases-before-the-eu-court-of-justice-an-analysis-of-international-law-of-the-sea/.
[10] U.N. Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397, Art. 98, https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf; Médecins Sans Frontières, MSF partner, Sea-Watch, lodges legal appeal to release search and rescue ship from Italian detention, Reliefweb (Oct. 23, 2020), https://reliefweb.int/report/italy/msf-partner-sea-watch-lodges-legal-appeal-release-search-and-rescue-ship-italian.
[11] Sea Watch eV v. Ministero delle Infrastrutture e dei Trasporti, joined cases C-14/21, C-15/21, ¶¶ 48-50 (Aug. 1, 2022), https://www.courthousenews.com/wp-content/uploads/2022/08/ecj-sea-watch.pdf [hereinafter “Sea Watch”].
[12] Quell, supra note 5; Christian Balmer, Italy Impounds Three Rescue Ships as Migrant Numbers Soar, Reuters (Aug. 23, 2023, 9:20 AM), https://www.reuters.com/world/europe/italy-impounds-three-rescue-ships-migrant-numbers-soar-2023-08-23/.
[13] Papastavridis, supra note 9.
[14] U.N. Convention on the Law of the Sea, supra note 10 at Art. 98; Médecins Sans Frontières, supra note 10.
[15] Papastavridis, supra note 9.
[16] Sea Watch, at ¶¶ 48-50; European Commission, Maritime Transport: A Selection of Essential EU Legislation Dealing With Safety And Pollution Prevention, European Union 5 (2016), https://transport.ec.europa.eu/system/files/2017-02/maritime_safety_eu_acquis.pdf.
[17] Sea Watch, at ¶¶ 54-55.
[18] Quell, supra note 5; Christian Balmer, supra note 12.
[19] Sea Watch, at ¶¶ 86, 159; Quell, supra note 5.
[20] Sea Watch, at ¶ 68.
[21] Id.
[22] Id. at ¶ 73.
[23] Maurice Stierl, The EU’s Secret Weapon Against Migrants-Time, Al Jazeera (May 17, 2023). https://www.aljazeera.com/opinions/2023/5/17/the-eu-is-weaponising-time-against-refugees-lives-be.
[24] Id.; Marco Manzone, NGOs Vessels and Port State Control Carried Out By the Italian Authority: The Interim Decision on the Suspension of the Detention of M/V Sea-Watch 4, International Bar Association (Dec. 1, 2021), https://www.ibanet.org/ngo-vessels-port-state-control.
[25] Id.; Stierl, supra note 23.
[26] Manzone, supra note 24; Stierl, supra note 23.
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