Italy versus NGOs: The Controversial Interpretation and Implementation of Search and Rescue Obligations in the Context of Migration at Sea

In the persistent absence both of a legal safe passage between Africa and Europe and a large scale search and rescue (SAR) operation, non-governmental organizations (NGOs) filled the gap left along the Central Mediterranean migratory route by the restrictive policies of the European Union and its Member States (IOM, 2017). Between 2016 and 2017 NGOs became the largest providers of SAR services offshore Libya, rescuing thousands of human lives at sea (Italian Coast Guard, 2017). Notwithstanding this extraordinary work, non-governmental savings face several criticisms at governmental level. Institutional skepticism has gradually been translated in a domestic practice aimed to hinder non-governmental savings. Consistently with the European Border and Coast Guard Agency, Italian politicians have repeatedly stated that humanitarian assistance close to, and occasionally within, the twelve-mile Libyan territorial waters is a pull factor of irregular migration and helps smugglers to achieve their objectives at reduced costs (Frontex Risk Analysis for 2017; Repubblica.it, 23 April 2017). With the specific purpose to ensure that NGOs’ vessels act within, and abide by, a set of clear rules, the Ministry of Interior has adopted a Code of conduct which - notwithstanding its misleading wording - is not legally binding for NGOs (Interno.gov.it, 2 August 2017). Rescuing NGOs face also material obstacles at sea. For instance, during two different distress events, the Libyan Coast Guard was mandated by the Maritime Rescue Coordination Centre Rome to interfere with saving activities initiated by the NGOs’ vessels Sea-Watch 3 and Open Arms (HRAS 2018). More recently, different NGOs’ vessels have been denied the authorization to access Italian ports to deliver rescued migrants. Political and material barriers took soon the form of concrete suspects of links between NGOs and smugglers. In April 2017 the Italian Senate Defense Committee started a general enquiry on their actions in the Mediterranean sea, and few months later the office of the prosecutor in Sicily accused the German-based NGO Jugend Rettet (August 2017) and the Spanish-based NGO Proactive (March 2018) of abetting illegal migration. Their vessels were preventively seized and banned from operating at sea. From the contradiction behind this background of criminalization of non-governmental savings arises the need to undertake a legal analysis aimed to investigate the evolving role of non-governmental SAR organizations in light of customary and treaty obligations and recent normative and jurisprudential developments. To this aim, further to a preliminary overview of the tendency to the ‘non-governmentalization’ of SAR initiatives in the Mediterranean space, we will focus on sensitive and interrelated questions concerning the legality of non-governmental savings, their independence, and the relevance of State instructions for non-governmental SAR initiatives. Finally, we will assess the implications of the NGOs’ action for the international legal system in terms of interpretation and realization of a multitude of international provisions inspired by the primary need to save human lives and we will conclude acknowledging the importance to looking forward the adoption of an adequate model of cooperation between governmental and non-governmental rescuing entities.