Closed Ports, Dubious Partners
In March and April 2020, Malta and Italy declared their ports closed to boats rescued from distress at sea, citing the strain imposed by Covid-19 as the reason. The Alan Kurdi and the Aita Mari, both of which had performed rescues in the Mediterranean, were therefore kept in limbo at sea for close to two weeks, before the survivors were finally transferred to a passenger ship, where they were quarantined until it was clear that they did not carry Covid-19 infections. In a third incident, a boat in distress was first left adrift and then intercepted by a private vessel, at the behest of the Maltese authorities, which disembarked the survivors in Libya, where they were put in detention – seven perished trying to reach a merchant vessel, five more died before reaching Libya.
Malta has not ratified the 2004 amendments to the law of the sea treaties governing Search and Rescue (the SAR and SOLAS Conventions), which specify that persons rescued from distress at sea must be delivered to a Place of Safety, and has not accepted the corresponding IMO Guidelines. Malta’s concern was that the state in charge of the respective Search and Rescue (SAR) would end up having to provide such a Place of Safety; given the large size of the Maltese SAR zone (250,000 km2, comprising among others the Italian island Lampedusa) in comparison to the size of the island itself and its proximity to the northern African coast, Malta feared disproportionate obligations. However, the fact that it has not ratified these amendments does not mean that Malta has no law of the sea obligations towards persons in distress at sea.
Firstly, this study shows that port closures are governed not only by the law of the sea and human rights law, but also by WHO law. While restrictive measures in ports are permissible in cases of communicable diseases such as Covid-19, states must choose those measures that least interfere with international mobility. Since, in the case of Covid-19, a 14-day quarantine is sufficient to make sure passengers are not infected, a blanket port closure is not justified.
Secondly, non-refoulement obligations continue to apply even in emergency situations; a derogation is not permissible under international law. The situation in Libya has, if anything, deteriorated. Libya can therefore still not be considered a place of safety, and pushbacks to Libya violate non-refoulement. A state cannot escape its international obligations by instructing private actors to commit the violation; in such cases, their actions are attributable to the state itself under international law. This means that Malta is responsible for the pushback to Libya.
Table of contents
1. Summary of Recent Events
1.1. Port Closures
1.2. The Case of the Alan Kurdi and the Aita Mari
1.3. Private Pushbacks to Libya
2. Port Closures
2.1. The SAR Regime: Accessing a Place of Safety
2.2. The Covid-19 Pandemic as a Justification
3. Private Pushbacks to Libya
3.1. The Situation in Libya
3.2. Pushbacks to Libya Continue to Violate the Law of the Sea
3.3. Pushbacks to Libya Continue to Violate Non-refoulement
3.4 Pushbacks by Private Actors are Attributable to Malta