The sea migrations have intensified exponentially in the last decade, assuming the character of a massive phenomenon, difficult to qualify as exceptional, in the Mediterranean.
Some are identifiable broken, such as those of the eastern, western and central Mediterranean, along which boats, mostly without a flag, transport human beings to the coasts of European Union countries. In particular the route of the Central Mediterranean it has Italy as its point of arrival, with departure mainly from Libya and Tunisia.
A complex phenomenon
The migratory phenomenon described poses significant problems from the point of view of the applicable law, as the human beings who make up the “migratory flow” can be traced back to different categoriesto which different rules apply. They are found asylum seekers, who, due to the well-founded fear of being subjected to persecution for reasons of race, religion, citizenship, belonging to a particular social group or political opinion, leave their country of origin to obtain protection in a foreign state. Some are fleeing armed conflicts. Others migrate from countries where respect for fundamental human rights is not guaranteed. There may be migrant workers, often referred to atechnically as “economic migrants”, who undertake the journey to seek better living conditions. They may include victims of trafficking in human beings, or migrants trying to cross borders irregularly.
The “journey” is often managed by criminal organizations and the sea route represents only the last segment of a much longer route that crosses several countries. The cost of the “ticket” is significant, if the per capita GDP of the countries of origin is taken into account. Crossing the Mediterranean can cost 3,500 dollars for individuals from countries where the annual per capita income is around 400 dollars.
The quality of the boats used does not meet high quality standards with the consequence that human lives are endangered and it is not infrequent for the occurrence of shipwrecked.
The legal framework of reference
Saving lives at sea is one of the oldest obligations deriving from the international law of the sea. Undoubtedly resulting from customary lawit finds correspondence in a plurality of contractual norms, such as the Geneva Convention on the High Seas of 1958, the United Nations Convention of Montego Bay of 1982 (art. 98), the Convention on the safety of life at sea of 1974 ( so-called SOLAS), the Hamburg Convention on search and rescue (so-called SAR) of 1979.
Under the latter each Contracting State assumed the relief responsibility if necessary, coordinate in a delimited area of its competence, not corresponding or limited to its territorial sea or other marine areas, but overlapping with them. At the end of the rescue operations, it is mandatory to take the survivors to a place Safe on land where survivors are no longer at risk and can see their basic needs met.
Rescue is carried out by ships flying the flag of a certain State, whose law is also applicable at sea as regards the obligations to protect rescued individuals. Sometimes it can be military shipsoften participating in specific operations related to the migratory phenomenon, or of merchant ships.
The protection obligations are complex and derive from the set of applicable rules deriving not only from the international law of the sea, but also from the law of human rights, by refugee law, if asylum seekers are involved, by the provisions of the Palermo Protocols additional to the United Nations Convention on Transnational Crime, for contractors, by European Union law, in the case of involvement of member countries. In this context, in addition to the rules on the protection of fundamental rights, the rules of the so-called asylum system of the Union appear to be relevant.
What are pushbacks
The standards mentioned are also applicable at sea. Nevertheless there have been cases where the boats instead of being rescued have been rejected (c.d. pushbacks), preventing them from approaching the coasts.
In the specific context of the Mediterranean, the European Court of Human Rights of Strasbourg, sanctioning the opposition of this practice to the protection of fundamental human rights. In particular in the case Hirsi and others v. Italy, reaffirming the extraterritorial applicability of the European Convention on Human Rights (ECHR) for the protection of all those who fall under the jurisdiction of the contracting parties, considered that the refoulement integrated a violation of guaranteed rights as it implies exposure to the risk of violations in the third country (so-called par ricochet protection).
Likewise, more recently, in the case Safi and others v. Greece the Court also reiterated theobligation to the national authorities to protect life, pursuant to art. 2 of the ECHR, through rescue operations at sea.
The obligations to protect human rights, deriving not only from the ECHR but also from general international law, require ensure protection to all individuals falling under the jurisdiction of the flag state, including at sea. Consequently it seems difficult to deny that they are applicable also in the case of pushbacks, therefore the admissibility would be doubtful of the latter where they imply violations of these obligations.
Cover photo EPA/ERDEM SAHIN