The Supreme Court recently upheld the decision of the Agrigento Criminal Court in the Sea-Watch 3 case.
During Summer 2019, the vessel Sea-Watch 3 rescued persons in distress (migrants seeking asylum or claiming refugee status) in the Mediterranean Sea. The persons in distress were later brought to the Port of Lampedusa as a place of safety ending the search and rescue operation, notwithstanding the refusal of the Italian government to grant the vessel access to the port. On arrival at Lampedusa, the captain of the vessel was arrested, but the Agrigento Criminal Court later revoked the captain's arrest (for further details please see "Sea-Watch 3: can coastal states limit right of innocent passage?").
Proceedings before Supreme Court
The local prosecutor in Agrigento appealed the Agrigento Criminal Court's order to revoke the arrest of Sea-Watch 3's captain before the Supreme Court. The first-instance court had excused the vessel's captain of the criminal offences brought against her having acted under the duty to render assistance to persons in distress at sea.
The prosecutor put forward various arguments, but this article focuses on whether the duty to render assistance to persons in distress was deemed to have been concluded as soon as said persons were taken on board the vessel, therefore considering the vessel itself to be a place of safety and that the rescue operation had come to an end. Hence, the conduct of Sea-Watch's captain could not be excused.
The Supreme Court examined the international legal framework which had been used to justify the action of Sea Watch 3's captain – namely:
- the 1974 International Convention for the Safety of Life at Sea;
- the International Convention on Maritime Search and Rescue 1979 (SAR Convention);
- the United Convention of the Law of the Sea 1982; and
- the customary principle of international law of rescuing persons at sea.
According to the court, Sea-Watch 3's captain had correctly followed the rules of international law.
Further, the court stated that the duty to render assistance in favour of persons in distress at sea cannot end after rescuing said persons from the sea and embarking them on the rescuing vessel – rather, it implies the duty to disembark the rescued persons in a place of safety. According to the court, a rescuing vessel cannot be considered a 'place of safety' under the SAR Convention, as it is only a source of temporary relief for the saved persons and remains vulnerable to navigation risks.
The court cited Paragraph 3.1.9 of the Annex to the SAR Convention (as amended in 2014), according to which:
Parties shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships' intended voyage, provided that releasing the master of the ship from these obligations does not further endanger the safety of life at sea. The Party responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and co-operation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the Organization. In these cases, the relevant Parties shall arrange for such disembarkation to be effected as soon as reasonably practicable.
Moreover, the Supreme Court relied on Paragraphs 6.12 and 6.13 of the International Maritime Organisation's Maritime Safety Committee Resolution 167(78) adopted on 20 May 2004 setting out the Guidelines on Treatment of Persons Rescued at Sea. According to Paragraph 6.13 thereof:
Even if the ship is capable of safely accommodating the survivors and may serve as a temporary place of safety, it should be relieved of this responsibility as soon as alternative arrangements can be made.
Finally, the court cited a further reason why a vessel cannot be considered a place of safety: migrants or asylum seekers must be entitled to demand international protection according to the Geneva Convention 1951 and this right cannot be exercised while at sea on board a rescuing vessel. Although not constituting a primary source of law, the court applied Resolution 1821 (2011) of the Council of Europe. According to Article 5.2 of the resolution: "it is clear that the notion of "place of safety" should not be restricted solely to the physical protection of people, but necessarily also entails respect for their fundamental rights". Therefore, according to the court, a vessel cannot be deemed a place of safety, as fundamental rights, such as demanding international protection, cannot be exercised.
In the light of the above, the court concluded that a ship cannot be considered a place of safety under the SAR Convention.
Without examining the controversial rules of Decree-Law 53/2019, the Supreme Court ended proceedings concerning the arrest of Sea-Watch 3's captain by giving a clear and straightforward interpretation of the concept of 'place of safety' in search and rescue operations: the rescuing vessel cannot be deemed a place of safety.
