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29 January 2020
Can a coastal state prevent a ship from exercising the right of innocent passage into its territorial waters to access one of its ports in a maritime distress scenario deriving from rescuing migrants at sea?
In recent times, this question has been the focus of attention in Italy due to the migration movements taking place in the Southern Mediterranean, legislation that the government passed on 14 June 2019 which aimed to restrict such rights and the case of Sea Watch 3, which entered the Italian port of Lampedusa on 26 June 2019 despite a government veto.
On 14 June 2019 the government adopted Decree-Law 53/2019 that set out urgent measures concerning public order and security, which was later approved with a few amendments by Parliament as Act 77 of 8 August 2019. Decree-Law 53/2019 introduced, among others, the following rules:
It must be stressed that the above rules apply to all kinds of vessel, save military or state vessels not engaged in commercial activities.
The day after Decree-Law 53/2019's entry into force, the Interior Ministry issued its first order aimed at impeding the entry, passage and anchoring of a vessel in Italian territorial waters. On 15 June 2019 the vessel Sea Watch 3 was denied entry into Italian territorial waters under Article 1 of Decree 53/2019.
On 12 June 2019 Sea Watch 3 had rescued persons in distress (migrants seeking asylum or claiming refugee status) in the Mediterranean Sea in Libya's search and rescue zone, 47 nautical miles from the Italian coast. After completing the rescue of the persons in distress, the captain of the vessel refused to consider ports located in Libya and Tunisia as safe ports and headed towards the Italian island of Lampedusa, which was the nearest safe port to disembark the refugees or asylum seekers in her judgment.
As a result of the order issued by the Italian government, Sea Watch 3 remained waiting in international waters. Due to the deteriorating health conditions of some of the persons on board the vessel, its captain decided to enter Italian waters on 26 June 2019 and moored at the port of Lampedusa, thus violating the order issued on 15 June 2019. Sea Watch 3's captain was arrested and faced criminal proceedings for resistance against public officials (an analysis of these offences is outside of the scope of this article). However, at the arrest hearing, the Agrigento Criminal Court issued an order revoking the captain's arrest. In taking its decision, the court had the chance to analyse and comment on Decree-Law 53/2019 (although it must be stressed, as the judge did, that the decree has only administrative effects).
The Agrigento Criminal Court affirmed that:
The right of innocent passage through territorial sea, established under Articles 17 to 19 of UNCLOS, can be impeded only in the event that the circumstances set out in Article 19 apply. Decree-Law 53/2019 seems to repeat the rule already set out in Article 19 of UNCLOS. Further, according to Article 24 of UNCLOS, a coastal state cannot impair the right of innocent passage other than in accordance with the provisions of the same convention. Therefore, it seems that the right of innocent passage must remain within the ambit of UNCLOS and that the Italian government, as Decree 53/2019 states in its recognition of Italy's international obligations, does not have the authority to impose further restrictions on vessels exercising the right of innocent passage.
The right of access to a port is different from innocent passage and coastal states retain the right to control access to ports in their jurisdiction. However, the right of access in maritime distress is a customary right protected by international law.(1)
Rescuing persons in distress at sea is regulated by international conventions, such as UNCLOS, the International Convention on Maritime Search and Rescue(2) and the International Convention for the Safety of Life at Sea.(3) The guidelines set out by the International Maritime Organisation and the European Union on places of refuge do not apply to rescue operations of persons at seas, as search and rescue rules prevails.
Affording rights to coastal states outside the boundaries of international obligations might pose the risk of undermining rescue operations at sea. Although Decree 53/2019 has been described by the press as a rule set out for non-governmental organisation (NGO) vessels, it applies to all types of vessel, so there could be the risk that a commercial vessel will be reluctant to engage into a rescue activity of persons in distress at sea if it will entail delays, uncertainty and the risk of levying fines, as they are elements which are not welcomed by commercial entrepreneurs.
Therefore, the Agrigento Criminal Court decision and its comments on Decree-Law 53/2019 should be welcomed not only by NGOs involved in rescue operations, but also by the entire maritime community. That said, Decree-Law 53/2019 remains effective and applicable at the time of writing. However, the Italian government is discussing the possibility of introducing some amendments.
For further information on this topic please contact Marco Manzone at Dardani Studio Legale by telephone (+39 010 576 1816) or email (email@example.com). The Dardani Studio Legale website can be accessed at www.dardani.it.
(1) It has been said that the right of access in a distress situation is more absolute, as the limitations set out under Article 19 should not apply. See Van Hooydonk, "The Obligation to offer a place of refuge to a ship in distress", in Lloyd's Maritime and Commercial Law Quarterly, 2004, pp3 47-374.
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