Italy’s migration policy is in breach of international law, say legal experts
Italy’s new far-right government has enacted its controversial new antimigration plan, which provides for the pushback of mostly male asylum seekers of adult age rescued in the central Mediterranean whom Rome does not deem qualified for international protection.
The move has sparked a row in the country and has provoked the protests of jurists, lawyers and charities who consider it a breach of international law on rescue at sea.
The first test of migration policy under the country’s new prime minister, Giorgia Meloni, the leader of a party with neo-fascist origins who once said Rome should “repatriate migrants and sink the boats that rescued them”, came on Saturday when Humanity 1, a rescue ship run by the German NGO SOS Humanity, was allowed to enter the port of Catania in Sicily with 179 passengers onboard.
Italian authorities began disembarking children and the sick: 144 passengers were moved to a reception centre while the rest, all males over the age of 18, were left on the ship and are likely to be pushed back into international waters.
Italy’s new interior minister, Matteo Piantedosi, defined these people as “residual cargo”, or men who do not need to be rescued.
On Sunday, after a quick inspection of the rescue boat Geo Barents, run by Médecins Sans Frontières and carrying 568 asylum seekers, 217 people were left on the ship. Volunteers reported people sleeping on the decks, as feverinducing infections and scabies spread.
But on Tuesday all remaining migrants on the Geo Barents were allowed to disembark due to their physical and psychological condition. MSF team leader Riccardo Gatti had said some had had “serious skin infections … not to mention psychological problems, with many of them having panic attacks. Three people have already jumped into the sea.”
More than 30 of the 35 migrants still aboard the Humanity 1 started to refuse food and water on Tuesday.
“Everyone has a right to disembark and we expect everyone to do so,” said Wasil Schauseil, a spokesperson for SOS Humanity. “We do not think this is valid under international law.”
The French charity SOS Mediterranee on Tuesday said its Ocean Viking rescue ship, which had been off Sicily, was heading for a French port after Italy refused to take the 234 people onboard.
Italy’s migration policy is reminiscent of the standoffs orchestrated by the former interior minister Matteo Salvini,
now Meloni’s infrastructure minister, during his stint as interior minister in 2018-19.
However, while Salvini closed the ports to NGOs, often forcing boats to remain several miles from the coast, the strategy of the Meloni government has the aim, on one hand, to please the EU by providing aid to the most vulnerable and, on the other, of blocking people they do not consider qualified for international protection, pleasing a part of their constituency who voted for them.
Magistratura Democratica, an independent Italian association made up of judges and prosecutors, said in a statement that Italy’s move was in breach of international law and asked the government for the “immediate disembarkation of all the people”.
“The survivors are in Italian territory and within its jurisdiction,” said Omer Shatz, a lecturer in international law at Sciences Po and legal director at Front-Lex, an organisation challenging EU migration policies. “Preventing disembarkation, let alone expulsion, of those onboard, would constitute a grave breach of Italy’s obligations under customary and treaty human rights, refugee and maritime law.”
Italy ordered Humanity 1 to leave the port of Catania on Sunday but the captain refused to comply until all survivors had disembarked.
“We supported the captain’s decision,” said Alessandro Gamberini, a lawyer for SOS Humanity. “If he leaves the port, he will be the one to break international maritime rescue laws.”
The Italian government is attempting to apply an interpretation of the EU’s Dublin regulation, which stipulates that asylum seekers have to remain in the first European country they enter.
Piantedosi maintains that when the asylum seekers set foot on the German-flagged Humanity 1, they set foot in Germany and, consequently, Berlin would have to take care of them. The Italian interior ministry has defined NGO ships as islands under the jurisdiction of the flag countries.
Fulvio Vassallo Paleologo, a former professor of asylum law at the University of Palermo, said the law did not work that way. “Once a ship enters the port, both the vessel and the people onboard are subject to the jurisdiction of the coastal state. In theory, their interpretation would make sense if the boats were in international waters and if the flag states agree with this choice. But that’s not the case.”
“Italy exercised effective control and its state jurisdiction over the survivors based on its own actions,” Shatz said. “Once Italy invited the vessel to dock at its port, it cannot discriminate between the survivors, who are all subject to its jurisdiction.”
Some legal experts have suggested Italy’s plan could rebound on Rome and that letting only some of the migrants land while pushing back others could be prosecuted.
Salvini is facing charges for kidnapping asylum seekers when, as interior minister in August 2019, he prevented 147 people onboard the NGO ship Open Arms from disembarking. Piantedosi was his chief of staff and was investigated over the incident initially before charges were dropped.
Salvini has maintained he was protecting the country and alleged the presence of the humanitarian boats encouraged smugglers.
According to official statistics, the humanitarian-run boats account for only 15% of all such arrivals in the country, with the remainder reaching Italian shores on their own in fishing boats.