While the sea continues to return the lifeless bodies of migrants on the beach of Cutro, in the last few hours, off the coast of Libya , as reported by the press agencies, a new shipwreck would have taken place.

There is no point in recriminating who should have done what and the political debate on the point does not seem conclusive at all. The continuous handing over of responsibility does not appear to be a useful exercise for resolving the age-old question and guaranteeing the safety of those who venture out to sea. It was probably the political choices that have alternated over the years that have not been decisive.

In the past, the European Court of Human Rights in Strasbourg unanimously condemned Italy for the pushbacks to Libya in the Hirsi case. And it certainly cannot be claimed that the aforementioned phenomenon of the arrival of refugees and migrants by sea is new and/or unprecedented. Far from it.

Because for years and years and since the most remote times there have been countless people, throughout the planetary context, who have had to assume, probably despite themselves, the determination to jeopardize their lives, their everything, aboard ships and/or other makeshift boats, to go in search of work, more appreciable living conditions, new and unprecedented training opportunities, or to try to obtain international protection from persecution or any other form of threat to one's life, freedom or security, often placing their fate in the hands of unscrupulous criminal traffickers.

“ Boat people ”, to put it briefly according to a definition that has become common, because this is what it is about, to indicate, in essence, all those who have decided in the past, or decide today, to venture into the sea in such precarious conditions . The right of these people to go in search of more appreciable living conditions would seem to be counterbalanced by the duty of the States to take action to make the conditions feasible. Probably, as suggested by many, it would be appropriate to implement humanitarian corridors , and/or set up safe recovery channels for those who intend to travel to reach safe shores and undertake new life experiences.

After all, precisely that of saving life at sea represents and summarizes an inviolable obligation of all States and is imposed, or at least should be imposed, on any potential bilateral agreement aimed at combating clandestine and/or deemed illegal immigration. So much so that the legislative power of the State (in particular the Italian one), as far as is known, is subject to the limit imposed by the provisions contained in the ratified International Conventions and European Regulations, with the result that by virtue of the provisions of articles 10, 11 and 117 of the our Constitution, the International Conventions themselves and International Law cannot in any way undergo derogations and/or limitations of any kind deriving from the discretionary choices of the political authority.

This obligation is based, among others, on two fundamental texts: meanwhile, the United Nations Convention on the Law of the Sea of 1982 (UNCLOS Convention), which states that "every State must require that the master of a vessel sailing its flag, to the extent practicable to do so without jeopardizing the ship, crew or passengers: (a) render aid to any person found at sea in danger of dying; b) proceed as expeditiously as possible to the rescue of persons in danger, if he becomes aware of their need for assistance, to the extent that such action can reasonably be expected of him"; therefore, the International Convention for the Safety of Life at Sea of 1974 (SOLAS Convention) which, for its part, obliges the "master of a ship who is in a position to be able to provide assistance, having received information from any source of the presence of persons in distress at sea, to proceed with all speed to assist them, if possible by informing the persons concerned or the search and rescue service of the fact that the vessel is carrying out such an operation".

On the regulatory level, therefore, "nulla quaestio". Critical issues , in fact, would generally seem to arise when it becomes necessary to descend from the ideal level to the existential one . The circumstances that may come to the attention of those who find themselves having to provide are many, and not always easy to resolve. Even when the rescue operation has been brought to a favorable conclusion, the immediately following onset of difficulties of various kinds has not been infrequent when it has been a question of obtaining the "nulla osta" (the expression is permitted) of a State on landing of migrants and refugees, above all when these (i.e. in almost all cases) do not have detailed documentation capable of certifying their identity, and therefore to identify them not only in their physicality, but also in terms of correspondence to the reality of what documented result. The problem exists, in all its practical complexity, and its management hardly seems to have taken place in a linear manner.

On one point it should be understood: the duty of any ship's master to provide immediate assistance should correspond to a similar duty of all States to provide mutual collaboration when it comes to intervening to provide the appropriate and dutiful assistance, fully assuming the responsibility to take care of the survivors and, at the same time, to allow those rescued at sea to be promptly taken to a place of safety.

The duty to take action to save lives at sea should concretely be of a general nature and extend to those, without distinction, who are in the position of power and duty to intervene.

Probably, at the European level , the solution could be to establish common rules of conduct that are suitable not only for guaranteeing the efficiency of the rescue duty but also the agreed management of the burdens of re-distribution of migrants throughout the European territory to the in order to allow for a welcome that can truly be said to be useful for ensuring appreciable living and working conditions for everyone.

What better time than the current one to implement an original and functional EU-branded rescue and reception plan?

Giuseppina Di Salvatore – lawyer, Nuoro

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