ECJ issues ruling on detaining NGO migrant rescue ships

The European Court of Justice (ECJ) on Monday issued legal guidance on the rights of ports controlling ships from humanitarian organizations carrying out search and rescue operations.

The court ruled a port country can take detention measures in the "event of a clear risk to safety, health or the environment." The ruling added it is up to the port country to demonstrate such risks.

The case provides an example of tensions between rescue organizations and countries like Italy on the EU's southern border, which deal with thousands of migrants attempting to enter the EU illegally on dangerous makeshift boats.

According to the UN, nearly 2,000 people were reported to have died or gone missing while attempting to cross the central and western Mediterranean in 2021.

Over 53,000 people arrived by sea to Italy in 2021, an 83% rise from the previous year, the UN said.

What is the legal background of the Sea Watch case?

The ECJ guidance stems from a dispute between Berlin-based humanitarian organization Sea Watch and Italian port authorities during Mediterranean rescue operations in 2020.

The German-flagged vessels, Sea Watch 3 and Sea Watch 4, rescued hundreds of people at sea and disembarked them at the Sicilian ports of Palermo and Porto Empedocle.

Port authorities inspected the ships and concluded they were not certified for search and rescue activities at sea, on grounds that the vessels had taken far more people on board than they were authorized to accommodate.

The port detained the ships over "technical and operational deficiencies giving rise to a clear risk to safety, health or the environment."

Sea Watch then accused Italian port authorities of "exceeding the powers" of a port state according to international law. An Italian court sent the case to the ECJ to "clarify the extent of the port state's powers of control and detention over ships operated by humanitarian organizations."

Rights of humanitarian ships

Sea Watch on Twitter called the ECJ guidance a "victory for sea rescue," providing "clear legal security for NGOs," adding that "arbitrary controls" would come to an end.

The court said international maritime laws stipulate a "fundamental duty to render assistance to persons in danger or distress at sea."

The ECJ said people who were brought on board a ship run by organizations like Sea Watch following a rescue mission "must not be taken into account" when verifying whether the rules on safety at sea have been complied with.

"The number of persons on board, even if greater than that which is authorized, cannot therefore, in itself, constitute a ground for a control," the ECJ said in a press release.

The ECJ also said that regularly using cargo ships not registered for rescue operations could provide grounds for controls. However, this does not mean a port state can demand a ship provide proof that it meets requirements applicable to another type of vessel classification.

However, after the people have disembarked, the port state has the right to inspect a ship for other violations, the court said. If an inspection reveals deficiencies, that port country can adopt "corrective measures" that are "suitable, necessary and proportionate."

It is now up to the Sicilian court to rule if the specific circumstances in these cases justified the actions by the port authorities.

wmr/aw (Reuters, AFP)