Was the captain of the Salamis right?

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.