Three United Nations Special Rapporteurs issued a warning last week in response to Italy’s new code of conduct that would limit the ability of signatory nongovernmental organizations (NGOs) to rescue refugees and migrants at sea; the Special Rapporteurs cautioned that it threatens lives and breaches international standards. [OHCHR Press Release; UN News Centre] Italy drafted the code of conduct, with support from the European Commission – the executive organ of the European Union – seeking the signature of NGOs engaging in rescue missions in the Mediterranean Sea. [European Commission Press Release] The code of conduct aims to limit the loss of life and migratory flows from North Africa, but human rights organizations and UN experts have criticized it because of the counter effect that it is projected to have on the lives of migrants and refugees. [OHCHR Press Release; HRW; Deutsche Welle; UN News Centre] Critics find particularly concerning the provisions that bar NGOs from entering Libyan waters to undertake rescues, ban NGOs from using light signals to communicate with vessels at imminent risk of sinking, and force NGOs to return to port to disembark rescued people, rather than transferring them to other vessels if they need to remain at sea to rescue others. [HRW] Italy and the other EU Member States are obligated to protect, respect, and fulfill the right to life for all, including migrants, under Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights).
The Special Rapporteurs’ Statements
The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Agnes Callamard; the UN Special Rapporteur on the human rights of migrants, Felipe González Morales; and the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Nils Melzer, criticized the provisions set forth in the code of conduct for limiting the life-saving activities in which NGOs engage. [OHCHR Press Release; UN News Centre]
Callamard stated that the code of conduct “could lead to more deaths at sea, and the resulting loss of lives, being foreseeable and preventable, would constitute a violation of Italy’s human rights obligations.” She reminded Italy and other European Union Member States that they must adhere to their obligations under international human rights law, including protecting the right to life, when developing similar plans. [OHCHR Press Release] A similar statement was issued by Special Rapporteurs Gonzvález Morales and Melzer, highlighting that “[t]he solution is not to restrict access to international waters” and warning that it “will result in more deaths of migrants at sea.” [UN News Centre] The UN High Commissioner for Refugees and the International Organization for Migration have expressed similar concerns, reminding the European Union and Italy of their international human rights obligations. [HRW; Deutsche Welle]
In addition to addressing the code of conduct, Callamard criticized the European Commission’s broader Action Plan, Action Plan on measures to support Italy, reduce pressure along the Central Mediterranean route and increase solidarity, that includes investing in State authorities’ efforts at the the Libyan border. Callamard warned that the funding to capture migrants and refugees in the Mediterranean Sea and return them to Libya would place them at risk of more violence, including deliberate killings and death due to torture, malnutrition, and inadequate medical care. [OHCHR Press Release] The other two Special Rapporteurs noted that this was an attempt “to move Europe’s borders to Libya,” a country that “cannot be regarded as a safe place to disembark.” [UN News Centre]
Callamard concluded by reminding the European Commission and European Union Member States of their obligations to “fully accept their shared responsibility, including the reception and relocation of refugees and migrants.” [OHCHR Press Release] González Morales and Melzer called on the European Union to tackle the real issue, which they identify as the disproportionate migration flow on countries like Greece and Italy. [UN News Centre] They concluded by suggesting an approach that would relocate migrants and refugees to all European Union Member States and that would expand visa regimes to provide more options for settlement. [UN News Centre] Callamard has also asked the European Union and Italian and Libyan authorities for clarification on the issues she raised. [OHCHR Press Release]
The Code of Conduct
The code of conduct introduces a set of rules that NGOs involved in Search and Rescue (SAR) activities that signed on to the code must abide by in order to address the “complexity of rescue operations” and “safeguard the security of migrants and operators.” [Euronews]. Specifically, NGOs that subscribe to the code of conduct must not enter Libyan waters except in situations of grave danger; not turn off or delay regular transmission signals; not send light signals to vessels carrying migrants unless necessary to preserve life; communicate to competent national authorities the technical suitability and relevant capability certifications of their crew and equipment; ensure that SAR activities do not take place in areas where official authorities are present; must not transfer rescued persons to another vessel; ensure that the State is continuously updated on the SAR activities taking place; cooperate with the competent Maritime Rescue Coordination Center in advance of independent initiatives; commit to receive on board judicial police officers conducting investigations; make known to Italian authorities upon request where the NGO is registered and its sources of funding; transmit “relevant information of interest for investigation purposes” to Italian Police Authorities; and collect the boats and engines used by migrants and report the traffickers and smugglers. [Euronews] Failure to comply with the code of conduct would result in an NGO being barred from Italian ports, which would necessarily mean that migrants and refugees would have to be taken to a different country. [Reuters]
NGOs have played a significant role in rescuing refugees and migrants crossing from Libya to Italy since 2014. [HRW] However, the European Commission and European Union Member States, in particular Italy, have struggled with the influx of migrants and refugees and have taken measures to decrease the flows. [European Commission Press Release] The code of conduct is part of the broader Action Plan and was developed in response to the increasing number of people that have died in the Mediterranean Sea since January 2017 when trying to migrate to Europe. See European Commission, Action Plan on measures to support Italy, reduce pressure along the Central Mediterranean route and increase solidarity, SEC(2017) 339, 4 July 2017, 2; IOM, Missing Migrants. Italy first presented a draft of the code of conduct at an informal meeting of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs on July 6, 2017. [HRW]
Italy’s Human Rights Obligations
Regionally, Italy is a State party to the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) and its protocols. The European Convention protect the right to life under Article 2.
Additionally, Italy is a party to several UN human rights treaties, including the International Covenant on Civil and Political Rights, which also requires States parties to protects the right to life under Article 6.
Italy is also a State party to the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming to the abolition of the death penalty; International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Optional Protocol of the Convention against Torture; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of Persons with Disabilities; the Convention for the Protection of All Persons from Enforced Disappearance; the Convention on the Rights of the Child; and the Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and on the involvement of children in armed conflict. See OHCHR, Ratification Status for Italy.
The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Special Rapporteur on the human rights of migrants, and Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment are three of the thematic special procedures overseen by the UN Human Rights Council. They are independent experts responsible for monitoring, reporting, and providing recommendations on human rights from a thematic or country-specific perspective. In pursuit of their mandates, they conduct country visits, receive information from civil society, and issue reports and statements.
The European Commission is an institution of the European Union headquartered in Brussels and Luxembourg with satellite offices in the EU and delegations outside of the EU. See European Commission, Locations. The European Commission is the EU’s politically independent executive arm responsible for proposing EU laws and policies, monitoring their implementation, enforcing EU law together with the Court of Justice, and representing the EU internationally. See European Commission, About. An individual may contact and engage with the European Commission in various manners, including by suggesting changes or new policies, responding to a public consultation on an issue of concern, launching a European Citizens’ Initiative, or making a formal complaint if EU law is not being implemented correctly. The EU and its 28 Member States are required to ratify the European Convention on Human Rights.
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