The impact of the new Italian security regulation on the search and rescue of migrants at sea

• Main Author: Giovanni Marchiafava
• Format: Article
• Language: English
• Published: Hrvatska Akademija Znanosti i Umjetnosti 2020-12-01
• Series: Poredbeno Pomorsko Pravo
• Subjects: security decree bis; public security; maritime border; territorial sea; innocent passage; search and rescue at sea; migrants; javna sigurnost; granice na moru; teritorijalno more; neškodljivi prolazak; traganje i spašavanje na moru; zapovjednik broda
• Online Access: https://hrcak.srce.hr/file/363450

On 15 June 2019, Decree Law No 53 of 14 June 2019, named Security Decree bis, entered into force in Italy, establishing new provisions on order and public security, converted into Law No 77 of 8 August 2019. The Decree deals also with preventing and combating illegal immigration at sea. It modifies the current Italian Immigration Law. The Decree provides that the Italian Minister of the Interior, with respect to his role as coordinator among the competent national authorities in checking borders and international obligations, can limit and prohibit the access, transit and anchorage of vessels in the territorial sea. These measures can be adopted for security reasons, or, if the current immigration law has been breached, as provided by UNCLOS, and shall be adopted by the Minister of the Interior in agreement with the Minister of Transport and the Minister of Defence, after informing the Prime Minister. According to the Decree, if the shipmaster of the vessel does not comply with such a decision, he will be subjected to a pecuniary penalty. On 22 October 2020, Decree Law No 130 of 21 October 2020 entered into force in Italy, amending the provisions of the Italian Immigration Law which were introduced by the Security Decree bis. The new Decree provides that the Minister of the Interior cannot limit and prohibit the transit and anchorage of vessels in the territorial sea if search and rescue operations are immediately communicated to the competent rescue coordination centre and the flag State. These operations must be undertaken according to the instructions given by the competent authority in compliance with international obligations related to the Law of the Sea and refugee status. If the shipmaster does not comply with the measure adopted by the Minister of the Interior, he will be subjected to a criminal and a pecuniary penalty. This paper aims to analyse the Security Decree bis and its impact on Maritime Law. Such an analysis is also based on a consideration of recent rulings of the Italian Courts related to measures prohibiting the access of vessels carrying migrants rescued at sea to territorial waters. Recent developments in the Italian security regulation are also examined.