(by Giuseppe Paccione) The arrival of other migrants by sea continues, where Italy is the protagonist, which is struggling with this continuous arrival of NGO ships that recover people in international waters who are often left at the mercy of the waves on dilapidated and dangerous boats, the more often than not with the complicity of human traffickers. The sea Mediterranean it has become the most dangerous, but also fatal, sea crossing with a fairly high death toll, according to data recently presented by the Nations Refugee Agency.
We know well that the area of the immense Mediterranean basin continues to claim many victims, so I believe it is essential to address the factors that could be an obstacle to the rescue of those who, for various reasons, decide to cross this large stretch of sea when their life is really in jeopardy. THE captains in charge of their own ships, under international law, they are obliged to assist such individuals who risk their lives at sea. Obstructing vessel commanders from their duty to save endangered lives often results in the tragic death of so many people who migrate to Europe as they cross the international waters of the Mediterranean.
The duty of the captains to provide assistance to individuals in distress constitutes the legal effect of a remote moral tradition and general practice of seafarers, that is, of a moral duty that was elevated to a legal obligation, which has been inserted into the United Nations Convention on the Law of the Sea (CNUDM) or Montegobay Convention of 1982, in that for the safeguarding human life at sea (SOLAS) and in that on search and rescue (SAR).
The UNCLOS obliges each State to require the commander of a ship, who possesses his nationality, to assist any person who is at sea in a particular circumstance of danger, to proceed quickly to the rescue of individuals who risk losing their lives. The SOLAS Convention stipulates that the captain of a ship must proceed swiftly to rescue people who ask for help because their lives are at risk, where it is necessary to minimize the time that individuals spend at sea.
The obligation to provide assistance to people in distress is becoming more and more important in the sphere of sea routes and voyages of hope which highlight many dangers and risks for the lives of individuals. The transit has resulted in the loss of the lives of many people who have embarked on the sea route to reach the European continent. We know well that many of these individuals, who migrate, aim to find a life that is sufficiently dignified and of economic opportunity, others flee because of wars, violence or persecution. They board ships that are often dilapidated and fragile, knowing that they have to face a very dangerous sea route in order to reach European countries, which are perceived as safe and which can offer a new peaceful and safe life. Nevertheless, the journey by sea, which would take them to safe destinations, must be considered equally fraught with dangers, because the boats are unsafe and overcrowded.
Although the international maritime legal order requires the master of the ship to proceed to rescue people whose lives are in danger, there are various factors that could hold back the master himself from the binding procedure of providing assistance to the shipwrecked, such as, for example, the conduct of States to reject small boats carrying migrants and asylum seekers on board, to deny disembarkation to rescued persons, to prosecute the masters of ships who have assisted such individuals, to criminalize, stop or obstruct the modus operandi of ships providing assistance could have an adverse effect on the duty of the ship's master.
Regarding the issue of refoulement, reference is made to the practice of stopping those who claim the right to asylum and migrants before they reach the territorial sea of a coastal state, a practice adopted by many EU countries, considered incompatible with the rules of the law. international, as happened in the case Hirsi Jamaa et alias c. Italy, which may undermine the ship's master's duty to assist those in the situation of losing their lives at sea. The policy of putting a wall on ships carrying people saved from the danger of being wrecked in international waters and not crossing the maritime borders of the coastal state shows the reluctance of governments to allow these people to enter their territory. The masters of ships flying the flag of such states may hesitate to have to rescue and embark the same people that the state concerned is trying to avoid their entry. Tactics of dodging the entry of migrants and asylum seekers into the territory could interfere with commanders' duty to provide assistance, as enshrined in international law.
A further modus operandi related to the States that could be an impediment to the implementation of the duty of each commander to provide relief to individuals who find themselves in the situation of being shipwrecked at sea is to deny disembarkation to those who are saved from the danger of drowning at sea. It has happened that states have refused to disembark migrants and refugees on their shores; this could lead to the captains of rescuing vessels not enforcing their duty to intervene in rescue operations and, subsequently, to bring such persons on board due to fears that certain coastal states may be reluctant to allow disembarkation. However, the binding fulfillment for coastal states is based on coordination and cooperation to ensure that masters of ships assisting by boarding individuals in distress at sea are released from their obligations under the SAR Convention. , and the responsibility to ensure that such coordination and cooperation materialize in such a way that the survivors being assisted are disembarked from the ship that rescued them, of course, in a safe place. Instead of ensuring their modus operandi travel along the same lines as their duties, according to the provisions of international law, the States themselves often express their dissent to granting the disembarkation of refugees and migrants, although this triggers the duty to welcome them. Their refusal to get them off the ships that have them rescued entails not only the violation of the binding commitments that they have taken on internationally, but also the impediment to the captains of the vessels from providing rescue to those in danger of being wrecked. .
In addition to the conduct of States that could affect the obligation of a commander who commands a ship to provide assistance at sea, there are other factors that could hinder the mandatory implementation of the intervention to rescue the shipwrecked. One of the missing factors is the lack of radio communications equipment aboard the often dilapidated ships on which migrants and those longing to be recognized as refugees travel on the sea trafficking they cross. We know well that the UNCLOS and SOLAS categorically evoke the duty of the commander of a vessel to proceed swiftly to rescue individuals who are in danger, if he is informed of his necessary intervention to assist the castaways who are risking their lives at sea. . Furthermore, it should not be forgotten that the boats or floats with which these people use for the Mediterranean crossing are unsuitable for navigation, without having a radio instrument on board to communicate, so it becomes difficult for those who find themselves in the hinge of the danger of being able to transmit the distress call to the nearest ships, consequently, the captains of the ships would not be able to initiate the immediate rescue intervention. In addition, fears of letting shipwrecked people aboard could endanger their crew or passengers, which would affect the duty of the commander to provide assistance.