Salvini and Open Arms: is there a boundary to the duty of rescue at sea?


The two events have substantial differences: the current one concerns a private boat subject to an entry ban under the security decree bis, the second a military ship – the Gregoretti – not subject to the decree. But from a legal point of view, as mentioned above, the definition of the duty of rescue of migrants at sea will play an essential role, which works in the same way both for the captain of the warship and for the captain of the boat of the private ship (NGO ).

The obligation to rescue

On this point, an important indication was given by the Court of Cassation, with the judgment 6626/2020, published last February 20, after the granting of the authorization to proceed on the Gregoretti case. The decision concerns a third episode of the Salvini-Ong clash, perhaps the most famous: it is the story of Carola Rackete, commander of the Sea Watch 3 boat – of the NGO of the same name – arrested for resistance to public officials and violence against warships. The Sea Watch 3 had entered the port on June 23 in Lampedusa to land 42 migrants rescued in Libyan waters, contravening an interministerial decree issued on the basis of the security decree bis, and in fact “ramming” a patrol boat of the Guardia di Finanza that had tried to prevent docking.

The Court, recalling several international Conventions signed by Italy – which in the hierarchy of sources of law have a role superior to national standards, including those of the safety decree bis – gave a very broad definition of the duty to rescue at sea, establishing that this is mandatory and can be said to be fulfilled only with the disembarkation of migrants, which must take place “as soon as reasonably possible” in a place where they can seek international protection, or an operation which according to the Cassation “certainly cannot be carried out on the ship”. The resolution of the Council of Europe 1821 of 2011 is called in support, which establishes that “a safe place” is one where the physical protection of people is guaranteed but also “respect for their fundamental rights”. The arrest of Rackete was therefore declared illegitimate, because only by docking on the quay – also against the Italian entry ban – did he fully fulfill the rescue duty imposed by the applicable supranational legislation. This regardless, concludes the Cassation, from the fact that the patrol boat of the Guardia di Finanza cannot be classified as a “warship”, because there was a non-commissioned officer and not an officer in command: the fulfillment of the duty of rescue would have in each case made arrest illegitimate despite the collision.

This is a ruling that focuses on the migrant’s duty to help, in fact greatly reducing the line that distinguishes refugees from economic migrants, for whom international protection does not work, establishing that first of all we must allow them to disembark, given that the assessment of the status takes time, and certainly cannot be done at sea.

Boundary protection

The focus of the trial against Salvini, for the Gregoretti affair, will be the legal qualification of the then minister’s decision not to authorize the landing until he received the demonstration of availability of other European States for the distribution of migrants.

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