Between the Devil and the deep blue sea

I was away on a short holiday when the latest crisis started to unfold; and by the time I got back, Spain had already announced it would be taking responsibility for the 600 passengers on board the Aquarius.

I therefore missed most (but not all) of the public diplomatic wrangling that surrounded this particular case: but from the little I saw and heard, it all sounded eerily familiar. Malta and Italy in a standoff over a shipload of rescued migrants, also involving Spain... it was like an uncanny feeling of déjà-vu. Surely this had all already happened... and quite recently, too. I myself clearly remember writing about something similar, and it couldn’t have been that long ago...

And sure enough, it didn’t take long to unearth at least one analogous incident: though whether it’s the specific case I had in mind, I can’t rightly say. But on July 10, 2011, a Spanish warship (the Almirante Juan de Borbón) had rescued 111 migrants in international waters, and similarly ended up stuck out at sea with all passengers and crew aboard... as Malta, Spain and Italy refused to allow the ship into their harbours. The standoff lasted six days, until eventually the passengers were transferred to a Tunisian navy ship, and (presumably) taken to Tunisia.

There were admittedly a few differences: in the 2011 incident, the rescue operation had been co-ordinated by the Maltese authorities, after receiving a distress signal from within Malta’s SAR zone... but way, WAY outside our territorial waters.

The rescue vessel was a Spanish warship, not an NGO rescue boat; and it was involved in NATO operations at the time. Having been ordered to pick up those migrants by Malta, it proceeded to bring them directly here... only to be halted 40 nautical miles out at sea, on the basis that – according to international maritime law – they should really have been taken to the ‘nearest safe port of call’.

That would have been Lampedusa, at the time of the rescue: but Italy had meanwhile declared Lampedusa to be at ‘full capacity’, and therefore ‘not safe’ as a ‘port of call’. Spain, it seems, disavowed responsibility for the matter, and even NATO got called into the fray, as the ultimate military authority over the ‘Almirante Juan de Borbon’. (It was, in fact, NATO that eventually ordered the transfer to a Tunisian navy ship: which also means that none of the individual countries involved can claim to have in any way ‘resolved’ the crisis).

On its part, Malta dug its heels and insisted on its international maritime legal rights: accepting to take in only five migrants who needed emergency medical assistance. All the while, the rest of the 111 passengers and 250 crew were left stranded at sea, under the blistering July sun, for almost a week.

There are differences, yes: but also striking similarities. For one thing, the arguments raised on all sides are practically identical. And I don’t just mean across the span of the seven or eight years that separate the actual events: they are identical to each other... as in, all countries justified their own stands in exactly the same way.

Consider Italy’s position in 2011, for instance. Its government had for years been insisting on a pan-European approach to what it argued was a pan-European problem. It consistently complained that the EU had ‘abandoned’ Italy and other Mediterranean/frontier states; and consequently, its decision to close its own borders to irregular migration was also an act of ‘protest’ against European policy at the time (though naturally, you can replace ‘protest’ with ‘blackmail’ and it won’t make any difference whatsoever).

Malta’s position has on the surface always been very similar. How often have we raised those very arguments on the international stage? And with what success? That is perhaps why – ironically – we had spent just as long vociferously supporting and Italy’s demands, and even repeating them in almost the same words: Italy claimed Lampedusa was ‘full up’; Malta had been saying the same thing about itself for years.

The only discernible difference is that Maltese governments – of all hues – have only ever threatened to take such drastic retaliatory action themselves. Italy – though it changed policy completely under Renzi, much to Malta’s benefit – has crossed the boundary from threat to action more than once. In 2011 as much as today, it was a matter of Italian national policy to simply refuse entry to rescued migrants, in all circumstances. Today, that same policy is even buttressed by a very clear electoral mandate.

Personally, I am unaware of any other country that chose to simple absolve itself of its international obligations so thoroughly and so cavalierly: at least, not in the context of an international migration crisis. Malta’s handling of such situations might not always have been a global beacon of best practice... but I don’t think it would be fair to accuse either the 2011 government, or today’s, of anything remotely comparable to Italy’s ‘closed doors’ policy.

Other than that, however, Italy and Malta – even Spain, for that matter – have consistently been on the same page for years. ‘This is a European problem’; ‘no one country can bear the full brunt alone’, etc. Even now, local politicians are out-doing each other with tweets and updates about ‘solidarity’ and ‘Europe doing its bit’... and to be fair, it is difficult to disagree with at least part of that argument. Without turning this into a back-envelope global economic diagnosis... the phenomenon we call ‘irregular migration’ stems very literally from the enormous disparity of wealth and stability that separate Europe from Africa. Whether each individual asylum seeker is fleeing conflict, poverty, both or neither...  at this point it all becomes rather irrelevant. They are all trying to get to Europe for a better standard of life. Clearly, then, this very much IS a ‘pan-European problem’... as Italy, Malta and other southern states have been howling for years.

But there is precious little use in being legally (or morally, or ethically) ‘right’... if it doesn’t translate into anything tangible. Going back to the comparison between 2011 and 2018... what’s changed in the meantime? The arguments are the same; the outcome was similar, though maybe not identical... and both Italy and Malta started and ended occupying almost exactly the same policy position. Both are standing on their ‘legal rights’, even when those ‘rights’ are manifestly being ignored by everyone else.

What this also means is that the 2011 experience – if not, our entire combined experience with migration in general – has not resulted in any workable policy that can avoid such undignified stand-offs in future. I would say the reason for this failure also emerges from a direct comparison between the two scenarios: it is no coincidence that Italy and Malta’s position has remained the same (closing an eye at the Renzi interlude)... if the laws, treaties and political rules of engagement have all remained equally unchanged.

One of the more pressing issues that has not changed one iota is the ambiguity of international maritime law itself. ‘Nearest safe port of call’ is clearly not a good enough definition to exactly pin-point whose responsibility any particular vessel may be, in any particular circumstance. It is inadequate in itself: and all the more so, if any country can apparently just change the status of its own ports, from ‘safe’ to ‘unsafe’, at the simple flick of a switch.

To end this on a very blunt note, I feel ‘international maritime law’ – along with all other relevant laws and treaties – also has to be far more specific when it comes to spelling out the actual consequences of illegality. What is supposed to happen when a ‘safe port of call’ refuses to admit a stricken vessel, anyway? Do the country’s Port Authorities get arrested by the ‘International Maritime Police’? Do they face an ‘International Maritime Tribunal’, and get sentenced to an ‘International Maritime Jail’?

Em, no. As we saw in 2011 – and again today – the reality is that nothing happens at all. There are no consequences for refusing to abide by such laws... beyond a little political fall-out, of the kind that even a tiny country like Malta (let alone Italy) can easily take in its stride. So, unless we start talking about introducing some kind of tangible punitive system in such cases – fines, international sanctions, action in the European Courts of Justice and/or Human Rights, etc. – there is no reason under the blistering sun why the exact same crisis scenario will not simply keep happening, in exactly the same way, every single time.

It is not, after all, just migrants and asylum seekers who get stranded in such cases. We’re all stuck between the same Devil, and the same deep blue sea.