FRANCESCA MUSSI

The summer of 2018 will be remembered as one of the hottest in Italy with regard to migration issues, as highlighted by several episodes that occurred between June and August off the Italian coast.

The first episode dates back to the night of Saturday June 9th 2018, when 629 migrants were rescued from overcrowded boats in the Central Mediterranean in search and rescue (SAR) operations carried out by NGOs and the Italian navy. Migrants were taken on board by the Aquarius, a rescue vessel operated by the German NGO SOS Méditerranée and flying the flag of Gibraltar. The Aquarius was on its way to Italy, whose Maritime Rescue Coordination Centre (MRCC) had coordinated the rescue operations. Then around 35 nautical miles off the southern coast of Italy, Italian authorities ordered the Aquarius to stop. Italy refused access to its ports and prohibited disembarkation of the rescued migrants on Italian territory, stating that the Aquarius should have gone to Malta instead. For its part, Malta refused to allow the rescue ship to dock in its ports, as it had nothing to do with the rescue mission, which was overseen by the Italian coastguard. For another 24 hours, the Aquarius remained on stand-by, floating between Malta and Italy. Maltese and Italian vessels supplied the Aquarius with water and food, but neither country offered the migrants safe haven. The political impasse was solved on 11 June thanks to the intervention of the Spanish Prime Minister, Pedro Sanchez, who allowed the Aquarius to dock in the port of Valencia.

Just ten days after the Aquarius incident, another similar episode of denial of access to ports by Italy occurred, after the Dutch-flagged ship of the German NGO Mission Lifeline rescued hundreds of migrants off the coast of Libya.

In July, an Italian coast guard ship, the Ubaldo Diciotti, carrying 67 migrants transferred on board after being rescued in the Mediterranean by an Italian oil rig supply vessel was not immediately allowed to dock in Sicily. Migrants eventually disembarked after a four day stand-off, only after the intervention of the President of the Republic, Sergio Mattarella, who persuaded the Italian Prime Minister, Giuseppe Conte, to open the port of Trapani.

The last contentious case erupted on the night of August 15^th 2018, again involving the Ubaldo Diciotti. After being rescued in the Maltese SAR area by two patrol vessels of the Italian coastguard, 177 migrants remained trapped on board. The ship was anchored at the port of Catania, however Italian Minister of the Interior, Matteo Salvini, refused to allow the migrants to disembark and threatened to return them to Libya if other EU Member States would not “step in to help.” Seven days after the rescue intervention, the ban was lifted for 27 unaccompanied minors, whereas 150 other migrants had to wait three more days. On August 25^th – after a failed attempt by the European Commission to promote a voluntary distribution of incoming migrants – the Italian government authorised the disembarkation and announced that 100 migrants would be hosted on Italian soil by the Italian Episcopal Conference, 20 by Ireland and 20 by Albania. Despite this apparent happy ending, that same day the Chief Prosecutor of Agrigento opened an investigation against the Italian Minister of the Interior and the head of his ministerial cabinet for three alleged offenses: kidnapping, illegal arrest and abuse of office. A few days later, two more offences were added to the list: kidnapping for the purpose of compulsion, indicating that Mr Salvini may have prevented the landing to obtain an agreement from the EU to redistribute the migrants; and the omission of official acts, since the Ministry indicated the port of Catania was only needed for a ‘technical stopover’, thus neglecting the Coastguard’s request for a safe haven.

Much ink has already been spilled by legal scholars on the above-mentioned episodes, especially with regard to the Aquarius case. This article focuses attention on the last episode involving the Ubaldo Diciotti. Leaving aside the political dimensions, which has been exhaustively analysed elsewhere, this contribution briefly considers three legal issues related to the right to liberty of the persons onboard, the Italian Interior Minister’s threat of returning migrants to Libya and the possible transfer of 20 migrants to Albania.

The right to liberty of the persons onboard

The 177 migrants on board the Diciotti could not get to land for ten days, blocked by order of the Italian Minister of the Interior. Such a circumstance initially forces us to consider whether the migrants onboard were already under Italian jurisdiction, even though they had not set foot on Italian soil.

It is a well-established rule of customary international law that a vessel is subject to the jurisdiction of its flag State (Papanicolopulu, 2018: 131). Although it is not expressly stated in the United Nations Convention on the Law of the Sea (UNCLOS), the international treaty establishing a comprehensive legal framework to govern all activities and uses of the world’s seas and oceans, the flag State’s jurisdiction extends also to the persons on board the ship. Indeed, as the International Tribunal of the Law of the Sea (ITLOS) has noted in the judgment concerning the M/V ‘Saiga’ (No 2) case:

the ship, everything on it, and every person involved or interested in its operations are treated as an entity linked to the flag State (para. 106).

When that ship belongs to the State’s coastguard and State officials are physically present, those on board are under the effective control of the State, which in itself is a basis for jurisdiction, as affirmed by the Grand Chamber of the European Court of Human Rights (ECtHR) in the case Hirsi Jamaa and others v. Italy.

In light of the above, there seems to be little doubt that the 177 migrants on the Ubaldo Diciotti ship were under Italian jurisdiction. As a consequence, the Italian Government must respect, protect and fulfil the human rights of those onboard, including their right to liberty.

In this regard, article 5 of the European Convention on Human Rights (ECHR) states that no one shall be deprived of his/her liberty save in exceptional circumstances and in accordance with a procedure prescribed by law. Even in such cases; “Everyone who is arrested shall be informed promptly, in a language which he or she understands, of the reasons for his arrest and of any charge against him.” Furthermore, they are “entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A similar provision can be found also in article 13 of the Italian Constitution, according to which no one may be “detained, inspected, or searched nor otherwise subjected to any restriction of personal liberty except by order of the judiciary stating a reason and only in such cases and in such manner as provided by the law.”

As far as the Diciotti case is concerned, it is not fully clear on which legal basis (either at the international or national level) that the deprivation of liberty of the migrants is grounded and, above all, whether there exists a sufficient, precise procedure prescribed by law on this point. The Italian Government has not specified on which grounds the detention has been ordered, nor has it produced a detention order, that in Italy can be issued only by judicial authorities. One can therefore rightly conclude that the 177 migrants on board the Diciotti have been arbitrarily deprived of their liberty.

The Italian Interior Minister’s threat of returning the migrants to Libya

The Italian Interior Minister threatened to return the migrants trapped on the Diciotti back to Libya in order to put pressure on the EU. Even though no follow-up action was taken, one may question whether the practice of returning migrants is compatible with international human rights law and international refugee law.

Photo credits: Spectator

In principle, States have the power to determine the admission of non-nationals into their country, detention of migrants and removal or expulsion of non-nationals. However, they must do so in such a way that upholds the rights of individuals within their territory and under their jurisdiction in order not to infringe the international legal norms that comprise the multilevel system of asylum. This system is based on different legal sources. The principle of non-refoulement, as set out in article 33(1) of the Convention relating to the Status of Refugees (Refugee Convention), has played a key role in regulating how States deal with refugees and asylum seekers. This principle protects any person from being transferred (returned, expelled, extradited, etc.) from one authority to another when there are substantial grounds for believing that the person would be in danger of being subjected to violations of certain fundamental rights.

The expansion of international human rights law has broadened the scope of this obligation and now requires States to protect non-nationals from being returned to countries in which their life is threatened, or where they risk being subjected to torture or inhuman and degrading treatment, regardless of their immigration status. Non-refoulement is included explicitly in article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and implicitly in article 7 of the International Covenant on Civil and Political Rights (ICCPR).  In addition, at the regional level, Italy is bound by article 3 of the ECHR, which implicitly prohibits the return of anyone to a place where they would face a real risk of ill-treatment in breach of the CAT. Moreover, the principle of non-refoulement is widely, but not uniformly, accepted as a norm of customary international law.

As far as Libya is concerned, it is described by the UN as a country where systematic violence towards refugees and migrants occurs widely. Multiple reports by human rights NGOs have described the grave, harrowing conditions there. Amnesty International, for instance, has reported that tens of thousands’ of refugees and migrants are being subject to torture and other human rights abuses at the hands of Libyan state officials and non-state actors operating inside and outside of Libya.

The situation of irregular migrants in Libya is even more complicated by a legal framework and official rhetoric which do not recognise the existence of refugees on Libyan territory. Libya has not signed the Refugee Convention nor the Protocol relating to the Status of Refugees. Moreover, refugees and asylum seekers are not distinguished from other migrants residing in the country, all of whom fall under the generalised category of ‘economic migrants’ (Hamood, 2008). Refugees are not accorded special treatment. No legislative amendments introducing the specific legal category of ‘refugee’ into Libyan law have been adopted for the purpose of protection of third-country nationals.

In light of the above, it seems quite clear that if the 117 migrants onboard the Diciotti ship had been returned to Libya, the operation would have openly violated the non-refoulement principle.

The possible transfer of 20 migrants to Albania

The disembarkation was finally authorized by the Italian authorities after Albania and Ireland had offered to accept 20 of the migrants each, while the rest would have been housed by the Italian Episcopal Conference.

From a legal point of view, neither the situation of the migrants hosted by the Italian Episcopal Conference nor that of those transferred to Ireland raise concerns. In the former case, migrants remain on Italian territory and will become part of the public protection system if they apply for asylum, like any other applicant. In the latter case, Ireland is an European Union (EU) Member State and the transfer is regulated in accordance with the Dublin III Regulation (Regulation no. 604/2013), which sets the admission criteria and mechanisms of determination of the Member State in charge of examining the request of international protection presented by a third-country national or stateless person in the EU. However, the Dublin III Regulation does not cover transfer to a non-EU country, such as Albania, whose legislation on international protection does not abide by the European asylum system. In legal terms, this implies that national, EU or international law does not allow such a transfer; therefore, migrants can only be moved to a non-EU country if they choose to do so.

Conclusion

Migration at sea is a highly sensitive issue in Italy, as the country represents one of the main gates of entry into the EU for refugees and undocumented migrants.

The considerations developed above show that the new Italian government’s approach in the Diciotti case can be questioned both from a legal and a practical point of view.

On the one hand, the basic human rights of 177 people – such as the right to liberty – have been violated in order to avoid their disembarkment onto Italian territory, even though these people were already under Italian jurisdiction in terms of international human rights law. In addition, it is important to highlight that, despite the rhetorical battles over migration currently taking place, it will be extremely difficult for Italian authorities to translate into legal terms the political decisions that have been taken in the last months.

On the other hand, the reaction of the Italian authorities had no real practical benefits, apart from the meagre results of  relocating  a maximum of 40 migrants.

As for now, it is not clear whether the case will be effectively examined on its merit before either an Italian or an international court. What is fully evident is that the harshness of Italy’s new policies to refugees and migrants will not quell their desire for mobility.

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Meet the author

Francesca Mussi (PhD, University of Milano-Bicocca) is a Research Fellow in International Law at the School of Law of the University of Trento. Her research fields of expertise include access to justice, migration at sea and related crimes and counter-terrorism. She can be reached at francesca.mussi@unitn.it