Many civil society actors and experts in maritime law have denounced the discretionary, if not outright political, nature of the administrative detentions of NGO vessels. Until now, the only official public statements had been those of the Italian authorities, which have always tried to justify the measures. Now, however, we know that there are also entirely different views: positions that are being taken and confidential documents coming from the flag states involved. There are three states so far: Spain (the flag country of the Open Arms and Aita Mari), Norway (the Ocean Viking and Geo Barents) and Germany (the Sea-Watch 3 and 4, Alan Kurdi, Sea-Eye 4).
The role of the flag countries is not at all secondary, as those who have no experience in navigation might assume. In maritime law, the responsibility for safety standards falls primarily on the flag authorities, and only secondarily on the country of the port of call, which in this case is Italy. The latter is able to carry out inspections, called Port State Controls (PSC), within a common framework established in Europe by Directive 2009/16/EC and the Paris Memorandum. The framework is meant to limit the risks to people and the marine environment, but also to prevent conflicts between states by standardizing the system of controls.
From May 2020 to date, all Mediterranean NGOs have been subject to one or more administrative detentions of their vessels in Italian ports. The main accusation invoked has been the “transport,” i.e. rescue, of an excessive number of people and the lack of certifications corresponding to this activity. In April, the Coast Guard told this newspaper that, as a result of a note sent on January 29, 2020 by the General Command to the flag countries, and after the first detentions of ships, Spain and Norway had taken “corrective action, certifying the vessels for the activities carried out,” i.e. Search and Rescue (SAR). Germany was not on the list of compliant countries, and for this reason its ships ended up receiving special treatment: they were detained at the end of each mission.
However, the Spanish and Norwegian authorities gave il manifesto another version of the events: “Spain has not established a specific technical standard for SAR operations. There is, in fact, no international code or convention approved by the IMO [International Maritime Organization] that would mandate certain technical requirements for these vessels,” says the Directorate General of Merchant Marine of the Ministry of Transport in Madrid. A similar response came from Oslo: “Norwegian authorities would like to point out that no mandatory special requirements have been adopted for ships which alone or together with other ships assist persons in distress at sea,” said the Norwegian State Secretary of the Ministry of Foreign Affairs, Jens Frølich Holte. “It is therefore a purely voluntary decision by the owner to obtain these additional notations from their classification societies.”
In reference to the “voluntary ‘Rescue’ class designation,” Holte specified that this “is not a mandatory certification required by the Norwegian Maritime Authorities or, in our opinion, any international legislation.” This certification is issued by private entities, such as Rina or Bureau Veritas, and has been obtained by several humanitarian ships. However, this only worked to avoid subsequent detentions in the case of the Ocean Viking, and only because between July and December 2020, the ship received technical adjustments in Augusta based on the indications of the Italian Coast Guard. In particular, this involved the installation of large inflatable rafts to be used in case of emergency. Oslo then certified the modifications and approved “the transport of 286 people, compared to a previous capacity of 41,” according to the Italian Coast Guard. So, rather than issuing a SAR certification as such, the flag authority seems to have increased the maximum number of passengers provided for in the statutory certifications.
The same has taken place in recent weeks for the German ships and for the Geo Barents (their capacity was nominally increased from 83 to 383 persons, which led to the ships being freed from detention). Whether this will secure them from future detentions by the Italian authorities remains to be seen. The Coast Guard, which is “directly and functionally” subordinate to the Ministry of Infrastructure, led until February 2021 by Paola De Micheli (PD) and then by Enrico Giovannini, says that its requests are aimed at increasing safety standards, but, since they do not have clear regulatory backing, the risk of arbitrariness is clearly present.
Article IVb of the Solas Convention (for the protection of human life at sea) establishes that rescued persons are not to be “counted” when establishing the ordinary requirements of a ship: the rule places the protection of life above any other consideration. Nor do we find in any international treaty a codification of the difference between “occasional” and “systematic” rescue activities, which the Italian authorities are invoking, and which ends up equating shipwrecked persons with passengers in the case of the NGO vessels. Nor is there a naval class for private ships destined for SAR activities.
This is why the German authority Bg-Verkehr (a classification society that fulfils similar roles to the Italian Coast Guard) is disputing the Italian interpretation: “This provision of the SOLAS Convention is very important for everyday practice, since the master of a ship can never know beforehand whether a critical situation will arise at sea and how many persons will have to be rescued in that event,” says Christian Bubenzer, spokesman for the Ship Safety Division. He adds that “Furthermore, if the number of life-saving appliances earmarked for persons in distress at sea was indicated in the ship safety certificate beforehand, it would conflict with the shipmaster’s unconditional obligation to provide assistance to all persons in distress at sea.”
One can indeed increase the maximum number of certified passengers and the corresponding safety equipment, but one cannot prevent that ceiling from being exceeded in actual SAR operations. The Ocean Viking has already done this twice in the past seven months. In both cases, of course, the captain rescued everyone they could: 422 were disembarked on February 8 and 572 on July 8, both times in Augusta. A ship’s arrival in port with more people than the number of passengers certified by the flag administration has been used on almost every occasion to initiate an “extraordinary” PSC and then detain the ship, but fortunately this has not been the case with the Ocean Viking.
However, the Open Arms is a different story. On October 3, 2020, the Italian Coast Guard stated that the ship was “in possession of certifications that allow it to carry out search and rescue activities and accommodate 320 people on board,” and expressed “satisfaction” towards the Spanish authority for the initiatives to make “the NGO vessels fulfil the standards of safety and protection of the marine environment in connection to the SAR service.” However, on April 17, 2021, a PSC was initiated in Pozzallo which claimed to find 16 irregularities on the humanitarian ship, including 7 that constituted “a ground for detention.” The result: it was detained for 69 days.
The Coast Guard told il manifesto that the inspection, which they claimed was an ordinary one, identified “deficiencies that may commonly be found on any ship, regardless of the type of service performed, and whose seriousness led to the administrative detention.” However, PSCs don’t “commonly” last between 12 and 16 hours, as in the case of Open Arms and other NGOs. On June 29, the Ministry of Transport in Madrid replied to il manifesto’s inquiry with a terse comment: “Without a doubt, it is inconsistent that the Italian administration is praising a ship for its high safety standards and at the same time it is detaining it for alleged safety deficiencies.”