UPDATE 25 Mar. 2019: On 19 March, the Minister of Interior published the “Directive on the unified coordination of maritime border surveillance activities and the fight against illegal immigration”. See the text in Italian: http://www.interno.gov.it/it/servizi-line/documenti/direttiva-coordinamento-unificato-dellattivita-sorveglianza-frontiere-marittime-e-contrasto-allimmigrazione-illegale
(ANSA on Info Migrants) The Italian government is looking at using the tool of a decree in order to block NGOs working in migrant search and rescue in the Mediterranean. The possibility is being examined by the country’s interior and infrastructure ministries.
A governmental decree may be the Italian government’s way of stopping NGOs working in migrant search and rescue in the Mediterranean. The country’s interior and infrastructure ministries, headed by Matteo Salvini and Danilo Toninelli, respectively, are looking at the possibility, by examining how it could be made compatible with Italian and international law.
‘Definitively’ resolving the NGO issue
Deputy Premier and Interior Minister Salvini said the goal of the decree would be to “definitively” resolve the issue of NGOs. “We’re working on sealing off Italian territorial waters to unwanted ships,” he said. Toninelli expressed the same concept in a different way. “We’re not planning a naval blockade. We’re creating a law that would prevent the NGOs from entering, for public order,” Toninelli said.
Despite the statements, the objective isn’t as clear as it may seem. The situation of the NGO ship Sea Watch 3 is one example. Denying access to a ship after it carries out a rescue at sea could put Italy at risk for a series of international violations, the first of which is the Hamburg Convention. The convention requires anyone at sea to rescue anyone in distress at sea and take those rescued to a safe place.
Choosing the laws to start with
Those working on the issue at the interior and infrastructure ministries are trying to identify laws that deal with transiting ships, not with rescues at sea, that don’t conflict with laws on the rescue of shipwrecked people. One aspect is Article 83 of the shipping code, which allows “limiting or banning transit and stopping of ships in territorial water for reasons of public order, shipping safety and protection of the marine environment.”
Another is legal text from the UN Convention on the Law of the Sea, the 1982 Montego Bay treaty that was ratified by Italy in 1994. Articles 17 and 19, combined together, allow for the possibility of blocking entry by ships into territorial waters in the event of possible danger to national security. Article 17 states: “ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.”
Article 19 defines the meaning of innocent passage: “so long as it is not prejudicial to the peace, good order or security of the coastal State.” Therefore, if the ship violates one of the points indicated in the article, passage in territorial waters then becomes “prejudicial to the peace, good order or security of the coastal State.” Article 19 indicates 12 such activities, one of which directly cites immigration. It bans passage in the event of “the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State”, as well as “any other activity not having a direct bearing on passage.”