The Role of Flag States of ngo Vessels under Italy’s New Migration Policy

On 4 and 6 November 2022, the Italian Ministry of Home Affairs, in agreement with the Ministry of Defense and the Ministry of Infrastructures and Transport, issued two inter-ministerial decrees effectively prohibiting two ngo humanitarian vessels from staying in Italian territorial waters for a longer period than “necessary”. As the former Minister of Home Affairs stated, such decrees were the “first act” of a policy aimed at calling on flag countries to respect their international law obligations. In the context of a press release, the Minister even stated that migrants saved at sea and in need of international and complementary protection could be informed of the possibility to apply for asylum on board of the rescuing vessels. The present comment offers an evaluation of the compatibility of such policy, finally given legal status in the Italian Law Decree n. 1/2023, under international law, bearing in mind both what it is legally required of shipmasters vis-à-vis rescued migrants and State obligations under international law.