1. Introduzione; 2. La giurisprudenza sull’obbligo di soccorso e il luogo di sbarco; 2.1 La giurisprudenza di merito: il caso Cap Anamur; 2.1.2 La giurisprudenza di merito più recente; 2.2 La giurisprudenza di legittimità: la sentenza della Corte di Cassazione sul caso Sea Watch 3; 2.3 La nozione di luogo di sbarco sicuro ricavabile dalla giurisprudenza; 3. Obbligo di soccorso e principio di non-refoulement nel diritto dell’Unione europea; 4. Conclusioni. Abstract: This contribution aims to analyze Italian case-law concerning NGOs involved in search and rescue activities in the Mediterranean, and will focus on the notion of ‘place of safety’ that emerges from it. The investigation will thus center on the urgent question of human security at sea. In recent years there has been a campaign of criminalization in media and political discourse that has resulted in the adoption of law aimed at criminalizing activities conducted at sea by NGOs. These measures have been accompanied by a “closed ports” policy, to the detriment of the people rescued at sea and forced to remain on board rescue vessels for up to several weeks before being allowed to disembark on land. These circumstances have led to numerous court proceedings concerning NGOs. Nevertheless Italian courts, taking inspiration from an integrated interpretation of international obligations regarding both maritime law and human rights, have consistently absolved NGOs of wrongdoing, arguing that they have acted in compliance with the duty to rescue at sea, a norm of customary international law. The Captain of any ship, including private ships such as those used by NGOs, is required to intervene in any situation of distress, and moreover benefits from a margin of appreciation in his/her choice of a port of disembarkation, given that he/she is in the best possible position to evaluate sea and weather conditions, and above all determine the safest place at which to dock, where people on board can receive assistance, food and water and where there is no risk that their rights will be violated. Italian Courts, among them the Supreme Court (Corte di Cassazione), have promoted the principle of non-refoulement and the right to asylum as essential elements in the identification of a place of safety for people rescued at sea, who must be protected regardless of other considerations, and without any form of discrimination. Ultimately this contribution hopes to highlight the contribution of jurisprudence in the process of decriminalizing NGOs involved in sea rescue operations, which, as has been underlined again and again, act in full accordance with international law. The investigation will also look into the gap between different state powers: the executive on one side, protagonist of the campaign to discredit and criminalize NGOs, and the judiciary on the other, standing firm in its opposition, in line with the international obligations to which Italy is bound.

Migrazioni via mare, luogo di sbarco sicuro e principio di non refoulement

Del Guercio Adele
2021-01-01

Abstract

1. Introduzione; 2. La giurisprudenza sull’obbligo di soccorso e il luogo di sbarco; 2.1 La giurisprudenza di merito: il caso Cap Anamur; 2.1.2 La giurisprudenza di merito più recente; 2.2 La giurisprudenza di legittimità: la sentenza della Corte di Cassazione sul caso Sea Watch 3; 2.3 La nozione di luogo di sbarco sicuro ricavabile dalla giurisprudenza; 3. Obbligo di soccorso e principio di non-refoulement nel diritto dell’Unione europea; 4. Conclusioni. Abstract: This contribution aims to analyze Italian case-law concerning NGOs involved in search and rescue activities in the Mediterranean, and will focus on the notion of ‘place of safety’ that emerges from it. The investigation will thus center on the urgent question of human security at sea. In recent years there has been a campaign of criminalization in media and political discourse that has resulted in the adoption of law aimed at criminalizing activities conducted at sea by NGOs. These measures have been accompanied by a “closed ports” policy, to the detriment of the people rescued at sea and forced to remain on board rescue vessels for up to several weeks before being allowed to disembark on land. These circumstances have led to numerous court proceedings concerning NGOs. Nevertheless Italian courts, taking inspiration from an integrated interpretation of international obligations regarding both maritime law and human rights, have consistently absolved NGOs of wrongdoing, arguing that they have acted in compliance with the duty to rescue at sea, a norm of customary international law. The Captain of any ship, including private ships such as those used by NGOs, is required to intervene in any situation of distress, and moreover benefits from a margin of appreciation in his/her choice of a port of disembarkation, given that he/she is in the best possible position to evaluate sea and weather conditions, and above all determine the safest place at which to dock, where people on board can receive assistance, food and water and where there is no risk that their rights will be violated. Italian Courts, among them the Supreme Court (Corte di Cassazione), have promoted the principle of non-refoulement and the right to asylum as essential elements in the identification of a place of safety for people rescued at sea, who must be protected regardless of other considerations, and without any form of discrimination. Ultimately this contribution hopes to highlight the contribution of jurisprudence in the process of decriminalizing NGOs involved in sea rescue operations, which, as has been underlined again and again, act in full accordance with international law. The investigation will also look into the gap between different state powers: the executive on one side, protagonist of the campaign to discredit and criminalize NGOs, and the judiciary on the other, standing firm in its opposition, in line with the international obligations to which Italy is bound.
2021
979-12-5976-142-2
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11574/199572
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