Imagine going to Berlin and getting arrested at the airport because the German police don’t recognize your Italian ID card. Something similar happened to the NGO ships seized in Italian ports. Among them are Sea-Watch 3 and Sea-Watch 4: their flag state is Germany, but the Coast Guard has been keeping them under arrest since July 9 and September 20, respectively.
The NGO has challenged the measures before the Regional Administrative Tribunal. On December 23, the administrative court passed the ball to the Court of Justice of the European Union. The case is complex from a legal point of view, and decisive from a political one: its outcome will inevitably influence the latest strategy deployed against humanitarian ships.
Since the establishment of the PD-M5S government, the Italian authorities have been accusing the NGOs of the fact that their ships are not classified as SAR vessels, i.e. for search and rescue activities. This is the reason for the continuous and careful inspections, which normally take place according to intervals established by international regulations, and the requests for additional safety measures, ostensibly to protect the people on board and the marine environment.
According to the Italian Coast Guard, the German classification of Sea-Watch 3 and 4 as “cargo vessels” (a category which includes all ships not carrying passengers) supposedly doesn’t fit the activity that is actually and “systematically” being carried out. The problem is that there is no such thing as SAR certification for a ship, either under German or international law. After the seizure of the ships, Germany once again confirmed the correct classification of the two vessels.
The tangles that the European Court of Justice will have to unravel concern the interpretation of EU Directive 2009/16/EC on the control powers of port states. To simplify, the EU Court of Justice must establish the following: whether the directive applies to ships classified as cargo vessels but used systematically for a non-commercial activity, such as SAR; whether the continuous inspections are legitimate; whether the port state can demand a reclassification of vessels by the flag state; and whether this request is legitimate for a category not provided for in the regulations.
There is a gap in EU law regarding SAR activities carried out by civilian vessels, also referenced by the recent European Pact on Immigration and Asylum. It remains to be understood whether, in the absence of a formal SAR classification, civilian ships are forbidden to carry out this activity, or whether they can do so with other certifications. It is interesting that the Regional Administrative Court referred the decision to the European Court due to the existence of “interpretative doubts,” but then suggested readings that were favorable to Sea-Watch on all controversial points. And that it requested an emergency procedure at the European Court, because the decision will affect the fate of the other five ships blocked in port and of the two at risk of similar measures.
Beyond the juridical level, the matter raises two paradoxes. NGO ships are being requested to make structural modifications based on an equivalence between shipwrecked persons and passengers (since SAR activities are carried out systematically and not occasionally). But do the ships of the Coast Guard, which is the institution that carries out search and rescue activities, respect those characteristics?
“Obviously not,” says Vittorio Alessandro, a retired Admiral of the Coast Guard and member of the Committee for Rescue at Sea. “The class 300 patrol boats, which have carried out the greatest part of the rescues in Lampedusa, are designed and set up for emergency interventions: to go out of the port, perform the rescue and immediately bring the rescued to land. The problems and risks of remaining on board arise only when ships are prevented from docking for many days. Only in this way it would be possible to call rescue vessels an additional risk instead of a solution for the emergency.”
The second paradox is that the SAR certification that Italian authorities are requiring from Germany does not even exist in Italy. Or, rather, there is a technical body accredited for the classification and evaluation of naval vessels: it is called the Italian Naval Register (RINA), and it has a long history that begins in June 1861, three months after the proclamation of the Kingdom of Italy. On February 21, 2020, it classified the Italian ship Mare Jonio, owned by Mediterranea, as a rescue vessel. But the Italian Coast Guard did not recognize this certification, and warned the tugboat that it should not carry out any rescue activities “in a stable and prearranged manner.”
In August of this year, the same certificate was issued to the Norwegian-flagged Ocean Viking. The NGO SOS Mediterranée’s ship remained under arrest until December 21, and was freed only after five months and numerous modifications demanded by the Coast Guard. These included—according to the press release—the installation of larger life rafts, additional life jackets, diving suits and additional safety equipment to be used in the event that the Ocean Viking had to be evacuated while there were survivors on board (one of the reasons for the blocks was that NGO ships were unable to guarantee the safe evacuation of shipwrecked people if their own ship were to meet with misfortune).
In response to a query by il manifesto, RINA explained that its designation of a “Rescue” vessel is “attributed to ships that, in case of need, have the accommodations and equipment to safely rescue and accommodate shipwrecked people on board. In order for a ship to operate systematically as a rescue vessel, it is necessary that it also comply with the applicable statutory regulations that are defined by the administration of the flag state.” It sounds definitive, but we are still back to square one.