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Sea Watch, the flag? It does not make The Netherlands responsible for the refugees, Dutch jurist says

di Benedetta Di Matteo

 

Sea Watch is sitting still in Catania. It has been two weeks since the ship that belongs to the German NGO – and that flies under the Dutch flag- has been involved in another case of international media attention. Even though the Netherlands finished their inspection of the ship, it still needs to wait; Dutch authorities, in fact, want to make sure that the ship is actually able to carry more people on board, for a long period of time. It is difficult to say whether the inspection will end shortly or if, as it happened in Malta, will hold the ship away from the Central Mediterranean for a longer time. In the meantime, the legal stance is still rather unclear. First of all with regards to the obligations of the flag state. How to Dutch experts weight in on the question? We asked Jorrit Rijpma, professor of EU law at Leiden University.

Professor Rijpma, because of its Dutch flag, what is the legal situation of the Sea Watch vessel?

Very unclear. The Law of the Sea poses an obligation on ship captains to come to the rescue of people in need, which is what happened here. 

So there the law is very clear: we need to save lives at sea, no matter whether it is done by a state, a commercial vessel or an NGO. The whole problem then is that international law of the sea only says that a place of safety should be found. This does not only mean that a person should be physically safe, the person needs to be brought ashore and this cannot be done in a country where his life would be in danger, either because he is a refugee or because he would put into camps like in Libya. 

We do not have a problem at sea, we have a problem at land, because Italy does not want to take these migrants in is because once they disembark in Italy, Italy becomes responsible for their asylum requests under the Dublin rules. The real problem then are the Dublin rules, and if we want to get to a structural solution for the problem of the people rescued at sea, we need to come up with a more equitable and solidary mechanism to divide the responsibility for refugees and asylum seekers over the Member States of the EU. 

What should the Netherlands have done if the situation on the boat got worse?

We do not know exactly what the responsibilities of the flag state are. What I do know is that the ship was in Italian territorial waters, so if the situation deteriorated, I do think it would have been a responsibility of the Italians. If you want to establish responsibility, you would need to argue that the Netherlands has effective control over the people on the ship, and the question is do they really? They are not there, they are not controlling the ship, it is not Dutch territory, it is not a Dutch navy vessel, it is a ship flying the Dutch flag. 

Is there something that the Netherlands can do find a more structural solution to this problem? They were talking about taking off the Dutch flag. That hasn’t been done, but do you think there is that realistic possibility in the future? 

This would be a very political decision to take. It would also need to be legally possible under the Dutch legislation on granting a ship the Dutch flag. Of course, these rules could be altered, a state is free to decide under which conditions it grants its nationality to a ship, but to do so just for such specific situations to me seems undesirable. If the Netherlands were to withdraw the registration of NGO rescue ships, the question is what solution that would that bring. It would not solve the obligation to rescue people and it would not solve the question on where to disembark. So any solution cannot be a unilateral one, not even a bilateral one, it has to be taken at the EU level. All we can see at EU level right now is political solutions at an ad-hoc basis but nothing permanent. The situation is further complicated because the EU strictly speaking does not have competence to legislate on Search and Rescue.

But that should not prevent it from going into the direction of a real EU asylum system that is not reliant solely on national authorities. But again, it is very challenging. Just look at the very complicated negotiations on the proposal for a reform of Dublin. And of course, it does not help that this issue has been incredibly politicized, not only in Italy but equally so in the Netherlands. However, the solution will have to come from Europe. I don’t think the problem is so much giving people immediate assistance, but the problem is what comes after disembarkation. Who is responsible for dealing with the people that are rescued. Now there Europe does have the power to adopt rules. Politically it remains a complicated issue; Italy has been rightly asking for European solidarity and maybe not getting enough of that in the past.  

We can be sure that this will happen again. How can states like the Netherlands then be involved?

I think they don’t want to be involved and unfortunately what I think is that they will continue to be invoking the fact that the ship flies our flag does not make the Netherlands in any way responsible. I think that is the argument that will be put forward.

Do you think that is true, under a maritime law perspective?

Right now, it is unclear what the responsibilities of the flag state are, I would be inclined to think that being the flag state is not enough to make you responsible, because having flag state jurisdiction is something else than having effective control. I also think that in practical terms these people would need to disembark in Italy in any case, it is difficult to sail all the way to Barcelona or the Netherlands. Only after disembarkation you should come up with a distribution system. But as I said, also in the Netherlands migration and asylum remains a highly sensitive topic, as proven for instance by the recent discussion on the regularization of asylum children. I am sympathetic to the Italian stance, not towards its government but towards the sentiment that this is a European problem.

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