Was the captain of the Salamis right?

We asked Prof. Neils Frenzen about the legal implications of commercial ships effecting the rescue of migrants at sea on behalf of coastal states.

The captain of the M/T Salamis was right in keeping to his original destination to Malta
The captain of the M/T Salamis was right in keeping to his original destination to Malta

Prof. Neils Frenzen
Neils Frenzen is Clinical Professor of Law at the University of Southern California's Gould School of Law

One week ago Italian search and rescue authorities directed two commercial ships, the Liberian-flagged oil tanker Salamis and the Turkish cargo ship Adakent, to divert from their courses to rescue two groups of migrants in distress off the Libyan coast.  Rescues like this take place almost daily, though most are conducted by national armed forces or coastguards.  Rescue operations conducted by commercial vessels raise different legal issues, one of the most important and problematic being where are the rescued persons to be disembarked.

And while disputes periodically arise between Italy and Malta when patrol boats belonging to the armed forces of one country have sought to disembark rescued persons in the other country - usually due to disagreement as to where the closest safe port is located in relation to the place of rescue - at the end of the day if the stand-off is not resolved, an AFM or Guardia di Finanza patrol boat is always able to disembark rescued survivors in their respective home ports.  This is not the case when commercial ships rescue survivors as was demonstrated by Malta's decision not to permit the Salamis to enter Maltese waters for the purpose of disembarking the 102 rescued migrants.

Some government officials characterised the initial decision of the captain of the Salamis to attempt to disembark the rescued migrants in Malta as a violation of international law.  Such an assertion is inaccurate and fails to take into consideration the complicated framework of different international laws - search and rescue, human rights, and refugee - which come in to play when migrants are rescued or otherwise encountered in international waters, particularly when it is likely that there are asylum seekers or other persons in need of protection among the rescued persons. 

While Malta's decision to bar the Salamis attracted significantly more international media attention than the events pertaining to the Adakent, these two incidents and the different resolutions highlight important legal issues.  After the two ships rescued and took on board the different groups of migrants, Italian authorities instructed both ships to disembark the rescued migrants in Libya because the migrants had departed from Libya.  The Adakent sailed to Tripoli - its planned destination before the rescue - and turned 96 rescued migrants over to Libyan authorities.  The captain of the Salamis disregarded Italy and Malta's orders to sail to Libya and continued to sail towards Malta - its planned destination before the rescue.

Both ship captains properly carried out their clear legal obligation under international law to rescue the stranded migrants. The more difficult legal question is where should the rescued persons be taken once rescue operations are completed.  While international law does not explicitly answer the question, it does impose the obligation on a ship's captain to disembark persons only in "a place of safety." Since the 102 migrants rescued by the Salamis included Eritreans and Ethiopians it is clear that many of them were asylum seekers and therefore the captain was legally obligated to ignore the Italian and Maltese orders that the migrants be returned to Libya.

Assuming some or all of the 96 migrants rescued by the Adakent were also asylum seekers, the Adakent's captain likewise should have disregarded Italian instructions to return the migrants to Libya.  Both the UNHCR and the International Maritime Organization (IMO) have issued guidelines to ship captains addressing the situations faced by the Salamis and Adakent.  The guidelines are based on the Search and Rescue Convention and the Refugee Convention and provide that if there is some reason to believe that a rescued person is an asylum seeker, the captain is obligated to take that fact into consideration when making a decision as to where to disembark the survivor.

Malta and Italy are well aware that many if not most migrants departing Libya by boat are asylum seekers and are also aware that many of the asylum claims will be granted if the asylum seeker is successful in lodging an application.  Had these two rescues been carried out by AFM or Guardia di Finanza patrol boats rather than the two commercial ships, the patrol boats would have been under a clear legal obligation to disembark the rescued migrants in a location where asylum or other claims for international protection could be properly considered.

The 2012 decision in the Hirsi v Italy case by the European Court of Human Rights condemned the Italian push-back practice which resulted in asylum seekers being returned to Libya without being given an opportunity to make asylum claims.  Neither Italy nor Malta can evade their responsibilities to consider asylum claims by diverting commercial ships to engage in rescue operations and then issuing orders to those commercial ships to return potential asylum seekers to a country such as Libya which is not a signatory to the Refugee Convention and does not provide an adequate alternate procedure to consider claims for protection.

There can be honest disagreement about where rescued migrants are to be disembarked as long as the survivors will be safe and protected when disembarked.  The Search and Rescue Convention obligates countries to coordinate and cooperate among themselves to permit rescuing ships to disembark rescued persons. Malta and Italy as sovereign countries have the right to control their borders, but this sovereign power has to be applied in manner that is consistent with international human rights and refugee law by which they have agreed to be bound.

More in National
avatar
everyone including our learned professor of law.(Californian if you please). and that is the fact that since the days of the berlusconi pushbacks we have seen a change of leadership in libya. libya is no longer governed by a blood thirsty dictator called ghaddafi. no sir, these are events of long ago. god have mercy on our souls the blood thirsty ghaddafi have been disposed of....disposed of my foot...killed, brutally murdered, lynched on the orders of the government of this learned professor. and so now in libya we no longer have a dictatorship but a democracy installed by the coalition of so called democratic abiding countries including france, uk and usa. come on professor who do you think you are kidding......
avatar
@Pure Logic: the PM has the last word only in your contorted mind. A PM, or a government is still bound to respect the law, international law in particular. Your argument is very similar to Berlusconi's, who wanted to use the fact that he was elected to PM to enact law which were anti-constitutional.... needless to say the constitutional court stopped him .... enough said!
avatar
If the international community has such a bleeding heart for the "asylum seekers" why doesn't the UN open an asylum seeking office in Libya. It will prevent criminal activity in human trafficking, it will avoid these people from paying for the journey across the sea and it will prevent these people from possibly drowning in such a dangerous journey. But then the local NGOs wouldn't like that would they if they lose their jobs to Libyans?
avatar
Why did the Captain of a boat carrying immigrants throw his satellite phone overboard when vessels arrived to assist the immigrants ? Ask Thuraya Thuraya will confirm that the Captain had contacted a collaborator in Rome by satellite phone
avatar
I don't give a damn what this Professor Krip Krop Krush says. Many other professors differ completely from him and in any case the Maltese people in their absolute majority including the PL and PN do not give one hoot what this clinical professor has said. Where was he when the USA stopped all the illegal migrants passing through Mexico and erected a wall to stop them, where was this upstart when the Israelis built a Wall across land which does not belong to them to stop the rightful owners from crossing to their farms, lands and businesses. Why does MaltaToday have to bring some obscure professor who is not even considered in his home country to try and blacken a small Nation like ours who has had to bear the brunt of more illegal migrants per population than any other nation in the EU or the USA. Why can't MaltaToday start looking at Malta's Interest for once.
avatar
Whatever these foreigners say, self-preservation is the most important issue and no one is obliged to accept the destruction of his or her country and their society and culture to accomodate illegal immigrants. With all these professors spouting international law and do's and do not's one would expect the world to be heaven on earth not the hell that it is. Since it is these so-called conventions are restricting us and other countries in what they can do in the face of massive illegal immmigration where immigrants and their traffickers are abusing the conventions left rigth and centre and causing upheaval in the recipient countries, it makes sense to dump all these conventions.
avatar
I cannot understand why we should pick up economic migrants from Libyan waters. Less than 4%, yes 4% receive refugee status. The rest are of the applications are dismissed and they are deemed economic migrants. That is why some receive subsidiary protection not refugee status because as economic migrants they still have to be protected from being sent back home. The are however safe in Libya, having worked there for a number of months and years. Prof Frezen should concentrate on what happens in the US. There, and rightly so, not only are economic migrants not picked up, but they are sent back to where they came from.
avatar
Read this. Mr. Bugeja's principles still stand. We have not quite become animals yet I hope. http://www.timesofmalta.com/articles/view/20070630/local/fisherman-defies-afm-orders-to-return-migrants-to-libya.12886
avatar
Ghadkom sejrin biha. Whatever will be said, the last word is that of the PM of Malta, which already reiterated that the same situation will result in the same attitude. He has no other option, firstly due to the precedence issue, and secondly due to a political face-losing issue. Libya, for such intents and purposes, is a safe country. If it is not, the EU should use its clout to make it one, and not chose the easy way out.