Even though greatly reduced compared to the peaks of the previous years, migratory flows across the Mediterranean Sea towards Italy’s coasts continued in 2020 – as did the tragic deaths of migrants, compounded by the inaction of Southern European States, in particular Italy and Malta.
This was the premise of the parliamentary question that Mr Erasmo Palazzotto addressed to the Italian Government on 16 April 2020, at the 327th Meeting (XVIII Legislature) of the Chamber of Deputies. Mr Palazzotto expressed his hope that the assistance that in those very same hours Italy was providing to the migrants rescued by the Alan Kurdi vessel could mark a de facto superseding of Interministerial Decree no. 150 of the Minister of Infrastructure and Transport, the Minister of Foreign Affairs and International Cooperation, the Minister of the Interior and the Minister of Health of 7 April 2020. According to Article 1 of the decree,
For the whole duration of the national health emergency due to the COVID-19 pandemic, Italian ports do not meet the necessary requirements to be classified and defined as “places of safety” pursuant to the Hamburg Convention on Maritime Search and Rescue [SAR Convention], as far as rescues carried out outside the Italian SAR area by naval units flying a foreign flag are concerned.
In his question, the MP leveled a twofold criticism against Decree no. 150. First of all, he stressed the impossibility for the Government to neutralize its international obligations by means of a ministerial decree, as the hierarchy of sources sets the former source higher than the latter. Moreover, a legal instrument to release Italy from its duties under the SAR Convention was not even needed, as the country was equipped with the necessary structures to allow for the safe landing of migrants – as demonstrated by the continuing inflow of people by sea through Italian ports. Indeed – this was the second objection – the decree was discriminatory in two respects: on the one hand, commercial vessels of any nationality were still allowed to put into port and, on the other, migrants saved by Italian ships or in the country’s SAR area could be disembarked. But, as Mr Palazzotto stated, “in the definition of a place of safety, no flag-based discretion is admissible”: after all, if a place is unsafe for rescuees, it is so for all of them.
The Undersecretary of State for Infrastructure and Transport, Mr Salvatore Margiotta, replied on the part of the Government to the question, clarifying from the start that he could not express a view on the revision of a decree signed by four different ministers.[1] Having briefly recalled the duties of a State in matters of rescue and assistance of people in distress at sea, Mr Margiotta added that
as early as 17 March 2020, the President of the Council of Ministers notified his European partners of the impossibility of ensuring, also with respect to the rescue operations that are not coordinated by Italy, a port for the disembarkation of migrants crossing the Mediterranean Sea, as the Italian operative structures, from health offices to police, have been at all times adjusting their activities to tackle the evolution of the COVID-19 health emergency. Thus, Italy stressed the need to share with the flag States the responsibility of the management of rescue operations carried out by private vessels, so as to avoid the creation of search and rescue mechanisms that are distinct from, and parallel to, the institutional structures set up by international conventions, as well as to prevent conducts that may encourage, even indirectly, irregular migration towards Italy and the European Union, especially in light of the de facto suspension of all instruments aimed at an orderly and joint management of migration at the European level, due to the relentless spread of the virus.
The Undersecretary went on to highlight that Decree no. 150 was not at odds with Italy’s obligations under the relevant international norms. He summarized two of them:
The first is that of the essential cooperation of the signatories to the [SAR] Convention, which also entails the duty of the flag States of rescuing units to take charge themselves of the assistance to and relocation of migrants, including the identification of a place of safety for disembarking them.[2]
If, as it is reasonable on both logical and contextual grounds, this sentence must be understood to mean that such an identification of a place of safety should occur in the territory of the flag State, then this would be a misrepresentation of the obligations alluded to. It must be said that the Italian authorities have already put forth such a distorted view in the second half of the 2010s[3] (though only after having taken the opposite stance just a few years before).[4] However, the truth is that the flag State is just one of the countries involved in the choice of the place of safety where rescued people can finally go ashore,[5] no one of them being, as a matter of (legal) principle, required to a greater extent than the others to provide for such a place. Therefore, the State coordinating the rescue operation – that is, the State in whose SAR area the rescue occurred – is not compelled to open its ports merely by virtue of its role, even though it is that State (rather than the flag State of the rescuing ship) that has a last-resort responsibility in this respect.[6]
The second obligation referred to by Mr Margiotta concerned the definition of the place of safety as one where the primary needs of rescuees, including health necessities, can be satisfied. Therefore,
in a wholly legitimate way, the interministerial decree qualifies the emergency stemming from the spread of the coronavirus as a situation that makes it impossible to ensure such safe places on the Italian territory, without undermining the functionality of the national health, logistical and security structures devoted to containing the spread of the pandemic and to assisting and treating COVID-19 patients.
In these words, an undue switch between subject and object in the causal relationship can be noticed. Even though the protection of health in the place of disembarkation is a reasonable objective, such a place is not eligible for landing people if it is not safe for them, rather than the other way around. That is, ineligibility cannot be established based on the risk that disembarked people may pose to those living in the place of safety. It is true that, should the rescuees actually imperil the health system of the host country, then that State would become unsafe also for them; however, the argument according to which a small number of people could have such a deleterious effect on a whole country should be supported by evidence. The Undersecretary’s line of reasoning is even more problematic as said harmful effect, apparently, is only considered under certain circumstances:
This would be limited to the cases where Italy did not play any coordination role in the search and rescue operations and, therefore, did not take on any of the obligations stemming from said coordination. At the same time, I have already recalled the responsibility of the rescuing unit’s flag State, which, by virtue of the aforementioned principle of cooperation provided for by the SAR Convention, is called upon to cooperate with Italy in identifying a shared solution to the management of shipwrecked people. Whenever, on the contrary, the rescue is carried out in the Italian SAR area with the help of the Country’s naval units, Italy is obliged, even in the face of the current emergency, to take charge of the devising of every appropriate solution to save migrants and the identification of suitable places where these can be disembarked and hosted. This provides a partial answer to your [i.e., the interrogating MP’s] query on the difference that objectively exists between different cases: a ship flying the Italian flag or that carried out a rescue in Italy’s SAR area and cases where such conditions are not met.
Mr Margiotta’s defense of the measure at issue or the measure itself appear to be flawed in at least three respects. Firstly, there is a problem with the purported legal basis of the policy, and a potential misalignment between such a justification and the policy itself. Indeed, if the duty of a State to allow for the disembarkation of people rescued at sea rests on the fact that the rescue took place in the SAR area of that State (which is also required to take on the coordination of the operation), then it seems illogical to conclude that the ports of the State must be open also to people saved by vessels flying its flag outside its SAR zone and even, perhaps, in the SAR zone of another country. Conversely, if the abovementioned duty is to be attributed to the State of the flag of the rescuing ship, the State supervising the SAR area where the operation was carried out is not required to open its ports. The only way to reconcile the two stances is by merging the respective legal bases, so that both the State of the flag and the State responsible for the SAR area are obliged to permit disembarkation. To ascertain what the position embraced by Italy is, however, would be both hard and pointless, as all three options are ill-founded, the duty to allow for disembarkation resting on a completely different ground.[7]
A second issue is the internal inconsistency of the measure, whose promulgation is allegedly premised on both the preservation of Italy’s safety and the protection of the rescuees’ health (as stated in the preamble of the decree). As to the latter point, one may wonder how refusing admittance of migrants – who are often fleeing from persecution and other disastrous conditions – may be deemed to be more beneficial to them than welcoming them into the Country, albeit plagued by COVID-19.[8] True, this does not necessarily amount to refoulement, as Italy expects the flag State to take responsibility for these people. But this is an unwarranted expectation: if COVID-19 is a reason for labelling one’s own ports as unfit, then, already in April 2020, most European countries could have legitimately done the same, since – as recalled in the preamble of Decree no. 150 itself – the pandemic has a global reach.
The third flaw has already been mentioned and concerns the discriminatory approach taken by Italy. Indeed, the criterion of the “safe place” is an objective one that cannot be made dependent on the circumstances of the rescue operation. All migrants must be treated equally, and the same principle of non-discrimination must guide the treatment of migrants, on the one hand, and other sea travelers, on the other. In patent disregard of such principle, the Government considered the Italian territory as safe for most people coming from abroad, by land, by air and by sea.
The COVID-19 emergency was first addressed by the Italian authorities with Decree-Law no. 6 of 23 February 2020, which inter alia provided for the possibility of restricting or suspending transport services, including maritime transport. These were effectively halted, also in the territorial sea and with a few exceptions, by means of the Decree of the President of the Council of Ministers of 1 March 2020, which also introduced a mere notification requirement for people entering the Country after having visited areas “at epidemiological risk”, possibly leading to quarantine. The very same measure was reiterated by two subsequent Decrees of the President of the Council of Ministers, of 4 March and 8 March 2020 respectively (the latter decree repealing the former one and the 1 March decree). Another Decree of the President of the Council of Ministers, dated 11 March 2020, entrusted the Minister of Infrastructure and Transport and the Minister of Health with the power to regulate, limit and suppress transports for health reasons. Such power was exercised by the two ministers on multiple occasions.
With Interministerial Decree no. 120 of 17 March 2020, the duty of notification to health authorities was extended to all travelers arriving to Italy by any means, who necessarily had to quarantine. The subsequent day, the few exceptions set forth by said provision were enriched by Interministerial Decree no. 122, which excluded cross-border workers and healthcare personnel from the abovementioned obligation. On 19 March 2020, a new decree of the same kind (no. 125) prohibited cruise ships flying a foreign flag from landing at an Italian port, whereas the service of Italian cruise ships was suspended and travelling vessels were required to disembark all passengers, irrespective of their nationality, at the respective (Italian)[9] final ports of call; foreign passengers had to be immediately transferred abroad. Finally, with an Ordinance of 28 March 2020, the Minister of Infrastructure and Transport and the Minister of Health set the modalities to be followed for the entry into the Country. More specifically, each person crossing the border had to notify the reasons for their travel and state both the place where the period of quarantine would be completed and the private means of transportation that would be used to reach that place; in case, upon arrival, such a place could not be effectively reached, the Civil Protection would indicate one. Transport services, including maritime ones, had to ensure safety conditions aimed at preventing infections and collect the previously mentioned information. The ordinance confirmed and expanded the class of people exempted from this regulatory framework, adding the staff of freight services.[10] These limitations, together with their exceptions, were later repeatedly prolonged, with the Decrees of the President of the Council of Ministers of 1, 10 and 26 April and 17 May.
Even though, beginning with the Decree of the President of the Council of Ministers of 22 March 2020, the severe restrictions to free movement previously enforced at a local level were extended to the whole Italian territory, and despite Decree-Law no. 19 of 25 March 2020 provided for the possibility – “based on the principles of adequacy and proportionality with respect to the actual [health] risk” – of restraining or barring access to Italy, from February to mid-May[11] no generalized, absolute limitation was ever imposed. Moreover, people travelling for work or health reasons or other cogent needs were exempted from abiding by the restrictions to internal movement, whereas the norms concerning the entry into the country could be exceptionally waived by the Government in order to comply with European and international rules (thus including, in principle, those relating to migration and asylum).
All in all, this picture proves that, notwithstanding the strict limitations enacted in the Spring 2020 to curb the pandemic, Italy still permitted the inflow of a potentially large number of people, thanks to the exemption of certain categories of travelers or the carving out of exceptions arguably based on need.
Since the measure taken by Interministerial Decree no. 150 was tied to the health emergency, which has been repeatedly extended by the Italian Government, as of 31 March 2021 this norm is still officially in force. On 12 April 2020, and thus only a few days after the enactment of said decree, the Head of the Civil Protection Department issued Decree no. 1287, which laid down the procedures to be followed with respect to two categories of migrants. Those who reach the Italian shores autonomously may be hosted on the Italian territory in dedicated areas and buildings – therefore, not directly in the pre-existing reception facilities for immigrants, which have been the object of detailed rules to prevent the spread of COVID-19[12] – where they are provisionally quarantined. Those who are rescued at sea and cannot be attributed a place of safety pursuant to Decree no. 150 are instead isolated on ships docked at Italian ports. This was the fate of the people rescued by the Alan Kurdi and Aita Mari vessels in April 2020 and of many thousands of other migrants in the subsequent months. This raises issues relating, inter alia, to the right to health of the people spending quarantine aboard and their right to apply for asylum, which has often been impeded.[13]
Paolo Turrini
A quotable version of this post was published in the Italian Yearbook of International Law: Turrini, “The Classification of Italy’s Ports as Places Unsafe for Migrants Rescued by Foreign Vessels Outside the Country’s SAR Area”, IYIL XXX (2020), 2021, pp. 516-522; available here.
[1] Interestingly, the Undersecretary of State said he was representing only one such ministries, although one may argue that he was in fact representing the whole Government, to which the question was addressed.
[2] In the case of the Alan Kurdi, a German-flagged ship, such a responsibility would rest with Germany – as explicitly affirmed by the Italian Government: Ministry of Sustainable Infrastructures and Mobility, “Alan Kurdi: porti italiani privi dei requisiti di sicurezza richiesti da convenzione Amburgo”, 9 April 2020.
[3] See Turrini, “Between a ‘Go Back!’ and a Hard (to Find) Place (of Safety): On the Rules and Standards of Disembarkation of People Rescued at Sea”, IYIL, 2018, p. 29 ff.
[4] In sharp contrast with what was stated by Mr Margiotta in his reply, in 2009 Italy and Spain lamented that “in the majority of the operations where Spanish- or Italian-flagged ships have been involved, the Governments responsible for the SAR regions, where persons have been rescued, have failed to provide a safe place for their disembarkation”: International Maritime Organization (IMO), Measures to Protect the Safety of Persons Rescued at Sea: Compulsory Guidelines for the Treatment of Persons Rescued at Sea, FSI 17/15/1 (2009), quoted in Trevisanut, “Which Borders for the EU Immigration Policy? Yardsticks of International Protection for EU Joint Borders Management”, in Azoulai and de Vries (eds.), EU Migration Law: Legal Complexities and Political Rationales, Oxford, 2014, p. 106 ff., p. 132.
[5] IMO, Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea, FAL.3/Circ.194 (2009), para. 2.3. See also, along similar lines, the Model Framework for Cooperation following Rescue at Sea Operations involving Refugees and Asylum-Seekers prepared by the UNHCR, that can be found in International Journal of Refugee Law, 2012, p. 485 ff., pp. 492-494. The negotiation by some European States, including Italy, of a Regional memorandum of understanding on concerted actions and procedures relating to the disembarkation of persons rescued at Sea, under the aegis of IMO, appears to have been on hold since 2014; seemingly, the same cooperative approach was taken in the memorandum, with the State supervising the SAR area where the rescue was carried out having only a “primary responsibility” in matters of disembarkation (see infra note 6): Hesse, “Persons Rescued at Sea”, November 2011, pp. 11-14, available here.
[6] Note that such responsibility does not translate into an obligation, because the government responsible for the SAR area merely “should” accept disembarkation on its territory: IMO, cit. supra note 5, para. 2.3. Italy, together with Spain, proposed to amend the SAR Convention so that “[t]he Contracting Government responsible for the search and rescue region, where the rescue operation takes place, shall exercise primary responsibility for ensuring that […] the persons rescued at sea are disembarked from the vessel involved in the rescued operation and delivered to a place of safety under its control” (IMO, cit. supra note 4, emphasis added), but the move was stopped by Malta’s counter-proposal, which wanted disembarkation to happen at the “port closest to the location of the rescue”.
[7] That is, on a customary norm that requires each State in the position to do so to welcome people risking their life and health at sea, irrespective of all other circumstances. See, again, Turrini, cit. supra note 3.
[8] As noted by Algostino, “Lo stato di emergenza sanitaria e la chiusura dei porti: sommersi e salvati”, ASGI, 21 April 2020.
[9] Even though not specified, this must be presumed.
[10] Consistently with the idea that trade flows had to be preserved, in the same period, Italy joined other States in “reaffirm[ing] the need for critical infrastructure such as […] seaports to remain open to support the flow of essential goods” (Joint statement on “Open markets, flow of essential goods and supply chain connectivity” promoted by Italy, Canada, Chile, Egypt, Guyana, Malawi, New Zealand, Singapore, Sweden and Rwanda, 21 May 2021, available here.
[11] A general ban to access Italy was enforced, for a very short period of time, only by means of Decree-Law no. 33 of 16 May 2020, and again, subject to some exceptions.
[12] See, e.g., the circulars issued by the Ministry of the Interior on 26 March and 1 April 2020.
[13] “Criticità del sistema navi-quarantena per persone migranti: analisi e richieste”, 10 December 2020.
Italy's Diplomatic and Parliamentary Practice on International Law 