Malta, Italy bide their time as conditions on the Salamis worsen

The Maltese and Italian governments still have the responsibility to ensure a safe place of disembarkation for migrants or castaways rescued at sea, according to the International Convention on Maritime Search and Rescue (SAR).

A diplomatic standoff over the safety of some 102 migrants saved by the crew of the MT Salamis, a Liberian-flagged vessel operated by Greek company Hellenic Shipping, could ensue as supplies start running low on the ship.

The ship rescued the migrants on Monday morning just before 1am.

As things stand, the refusal of the Salamis's captain to revert back to Libya, perhaps due to commercial reasons to deliver an oil shipment in Malta, will shift attention to coastal states like Malta who are legally bound to relieve shipmasters of persons recovered by ships at sea.

The Maltese government insists that the Salamis's shipmasters were guided to comply with the Italian RCCs' instructions, namely to set course to Libya as the nearest and safest port of call at 45 miles from Khoms, from where it had left en route to Malta.

But the legal quibble is now bound to turn into a political and humanitarian question reminiscent of the 2009 Pinar E standoff.

Malta's sovereignty extends to its territorial waters, and while it can adopt laws to prevent the illegal entry of people into its waters, it is still obliged to render assistance to persons, ships or aircraft in danger or distress.

Under customary international law, there may be a universal right for a ship like the Salamis to enter Maltese waters if there is a clear threat to safety of persons aboard the ship - threats which often worsen with time and where immediate port entry is needed to ensure the safety of the vessel and those onboard.

And while the migrants on board are not legally speaking "illegal immigrants" - having not entered illegally but saved on the high seas while exercising their right of innocent safe passage - Malta remains bound by the Refugee Convention's prohibition of the "refoulement" of migrants who could be refugees or seeking protection.

The 1979 SAR Convention does not define what a "place of safety" is, but its annex says it cannot bedefined solely by geographical location and reminds States of the "need to avoid disembarkation in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened is a consideration in the case of asylum-seekers and refugees recovered at sea."

Even though the Salamis could have opted for a faster resolution to the rescue by going back to Tripoli or Khoms, the potential that these migrants are indeed asylum seekers - and therefore seeking international protection - means that there is a degree of responsibility in ensuring that they are not sent back to a country which like Libya, cannot be considered safe.

The Salamis's agents claim they were directed to have the ship sail to Malta by the Italian RCC, but the Italian ambassador Giovanni Umberto De Vito said his government told the Salamis to head back to Libya.

Ultimately, once the situation worsens on the Salamis, both Malta and Italy will be unable to avoid the humanitarian situation developing aboard the tanker: as actors in this developing situation, they are ultimately responsible for saving lives at sea. Not the Salamis.

In 2009, Italy agreed to evacuate some 140 migrants from the deck of a Turkish-owned cargo ship 'Pinar E' that had rescued them in the Mediterranean Sea, breaking four days of diplomatic gridlock with Malta over who should take responsibility.

It took European Commission president José Manuel Barroso to intervene with prime ministers Lawrence Gonzi and Silvio Berlusconi. Franco Frattini, Italy's then foreign minister, had insisted later that Malta should have taken them in.

It was in fact the Malta RCC that first received a distress signal from two sinking boats that the migrants had been on for more than a week. It then asked the Turkish ship, the Pinar E, to pick them up and take them to Italy. The ship, carrying steel, was en route to Italy from Tunisia.

Although the two boats were found 41 miles from Lampedusa and 65 miles from Malta, Italy said that it was Malta's duty to take the migrants in.