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Judgment of the Court of Justice of the European Union in Joined Cases C-14/21 and C-15/21 | Sea Watch (Judgement No 138/2022 : 1 August 2022)

Ships of humanitarian organisations systematically carrying out activities relating to the search for and rescue of persons at sea may be subject to controls by the port State 

by Amber Capshaw, University of Arkansas, intern to the Family Law Italy ROME

During the summers of 2019-2020, a humanitarian organization, Sea-Watch-3 (based in Berlin, Germany), carried out search and rescue operations in the Mediterranean. Due to the agreeable summer weather conditions, they have seen a rise in the number of boats leaving the Libyan coast seeking a better life in Europe. However, this migration is perilous and deadly, resulting in hundreds of deaths annually. Sea Watch disembarked persons from two of these ships in the ports of Palermo, Porto Empedocle, and Lampedusa. These ships were then subject to inspections by the harbor master’s offices of those ports. In one specific instance occurring 2019, a young German sea captain, Carola Rackete, disembarked 42 Libyan migrants at the port of Lampedusa in Southern Italy. Matteo Salvini, Italy’s former interior minister, refused to take the migrants (as Rackete was aiding illegal immigration to Italy)–yet Rackete persisted with her mission. Rackete was arrested but released after judge Alessandra Vella ruled that Rackete had been carrying out her duty and had not committed any act of violence. Rackete insists that the issue of migration is being exploited for political purposes in Italy.

The inspections of the ships arriving in Italian ports revealed that the ships belonging to Sea Watch had taken many more passengers on board than they were authorized to accommodate. Additionally, the ships were registered for cargo—not as search and rescue ships. Sea Watch brought two actions for the annulment of those inspections before the Regional Administrative Court of Sicily (Italy). Sea Watch claimed that the harbor master’s officers had exceeded the power of the port State, as derived from Directive 2009/16 (interpreted in light of the international law). The Regional Administrative Court of Sicily has referred questions to the Court of Justice for a preliminary order to clarify the extent of the port State’s powers of control and detention over ships operated by humanitarian organizations. Direction 2009/16 dictates the law within the EU regarding the monitoring of international standards for safety, pollution prevention, and on-board living environments for ships–additionally, the law dictates jurisdiction within port waters. The Court, sitting as the Grand Chamber, holds that Directive 2009/16 applies to any ship located in a port or in waters within the jurisdiction of a Member State and is flying the flag of another Member State including ships operated by humanitarian organizations. Secondly, the Court pointed out that the objective of Directive 2009/16 is to increase compliance with the rules of international law and EU legislation relating to maritime safety and security. Once a ship has finished disembarking in a port, the port state has the power to subject the ship to an inspection in order to verify whether the rules on safety at sea have been followed. Then, the port State must be able to demonstrate serious indications of danger to the health, and safety. And on-board working conditions. In the event that the inspection reveals the presence of deficiencies, the port State has the power to adopt corrective measures as it deems necessary. 

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