Legal Update on the Captain Morgan Incident

This week aditus foundation, Jesuit Refugee Service Malta and Integra foundation filed three complaints in three different fora with respect to the situation of around 167 migrants currently being held aboard the private vessels Europa II and the Atlantis, just outside Malta’s territorial waters. The Maltese government chartered a number of private pleasure craft vessels to accommodate migrants rescued in Malta’s SAR zone in the period between the 28th and 29th April 2020 and 6th May 2020. The migrants were transferred from private and AFM vessels involved in the rescue to the chartered vessels and have remained there since the beginning of May.

UN Mechanisms

Two complaints were sent respectively to the UN Special Rapporteur on the Rights of Migrants and to the UN Working Group on Arbitrary Detention. Both procedures are UN Special Procedures which means they don’t operate on the basis of any treaty but on the basis of the Charter of the United Nations and, as such, have a broader scope. In this sense, they are not considered to be judicial bodies, but they have a strong political authority.

The UN Special Rapporteur on the Rights of Migrants is special rapporteur on the human rights of migrants and has the mandate to examine ways and means to overcome the obstacles existing to the full and effective protection of the human rights of this vulnerable group. Special rapporteurs are in charge of holding inquiries into violations and to intervene on specific issues or urgent situations.

The Working Group on Arbitrary Detention has as its mandate to investigate cases of deprivation of liberty imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration of Human Rights or in the relevant international legal instruments.

Legal considerations

In both complaints we highlighted that their situation is an urgent one in view of their rapidly deteriorating physical and psychological state. The complaints were based on the assertion that Malta’s actions breached a number of articles contained in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights, in particular:

  1. Right to be free from torture or to cruel, inhuman or degrading treatment or punishment
  2. Right to liberty and security of the person
  3. Right to be treated with respect for inherent dignity of the human person
  4. Right to an effective remedy, and
  5. Right to seek and to enjoy asylum from persecution.

In particular, we noted that the duration and the conditions on board the ferries, which are not adequate to host persons for a length of time on the high seas, amount to on-going de facto detention that is reaching the severity necessary for the situation to be considered as inhuman treatment. The reason for such detention remains unclear, if at all existent and it appears to have no time limitation and thus indefinite. As a result, the detention of such migrants cannot but be considered as arbitrary. Moreover, the decision to detain the migrants upon such vessels does not appear to have taken into consideration relevant factors on an individual basis, nor to have taken into consideration the physical and mental health effects and vulnerabilities of the persons concerned.

We furthermore noted that they have no access to adequate national remedies due to the fact that from the moment of their detention aboard the two vessels, the migrants have been denied access to UNHCR and other organisations. It remains impossible for them to seek recourse to the national legal system without such information and support. The migrants have no opportunity to demand reassessment, re-evaluation or access safeguards against unlawful and arbitrary detention.

In view of the above, we maintain that that the decision to keep migrants detained on private vessels, is unreasonable, unnecessary and disproportionate.

Lastly, we highlighted that the individuals aboard the vessels left their countries origin for various reasons, which reasons may include fear of persecution, violence, war or civil strife. In Libya, refugees are unable to secure protection for a number of reasons. Not only has Libya not ratified the 1951 Refugee Convention, but the State has not established a functioning asylum procedure to identify and protect refugees from return to their countries of origin. However, over 3 weeks from their interception and detention, no steps have been taken by Malta to register or process the asylum claims of the persons aboard. Thus, by denying access to territory to asylum-seekers, Malta is violating their fundamental right to seek and enjoy asylum in Malta.

European Commission for breaches of European Union Law

A complaint for breaches of European Union law was filed with the European Commission. The European Commission is the EU’s politically independent executive arm and in addition to proposing legislation, it is also tasked with ensuring that EU law is properly applied in all the Member States.

Any individual or group can file a complaint with European Commission about any law, administrative action, absence of measure or practice by a Member State that may be in breach of Union law. The Commission will then assess the complaint and will decide whether to initiate formal infringement procedure against the country. It can either decide not to initiate proceedings, or close proceedings if they feel that there are other mechanisms that are more appropriate. However, if the Commission feels that there is a breach it may take a country to the Court of Justice and if it wins the case, the country will have to take all actions to remedy the violations which may also include financial penalties.

Legal considerations

Although search and rescue operations remains a Member State exclusive competence regulated by international law, we argued that the current situation calls into play EU external border control and should be guided by the applicable relevant human rights law and EU acquis. It is clear that with Malta’s actions at sea in relation to these incidents it is engaging in EU external border control affecting the interests of the European Union.

Article 77(1)(b) of the Treaty on the Functioning of the European Union provides for the implementation of a common policy on the crossing of external borders. This has translated into a number of measures, primarily the Schengen Borders Code (SBC) which lays down common measures on border control at external borders that reflect the Schengen acquis. In this regard, we considered that Malta’s decision to place the groups of rescued persons on vessels just outside national and, by consequence, European Union territory, is unequivocally one of border surveillance, border check and border control as defined by the SBC.

Article 4 of the SBC lays down clearly that, in applying the Regulation, Member States shall act in full compliance with relevant Union law, relevant international law and obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights. The provisions of the Refugee Convention and of the EU Charter of Fundamental Rights are therefore not of a merely indicative nature, but a binding one.

The moment SBC applies, effect must be given to the safeguard provisions in Article 4 of the Regulation, and to Articles 6, 18 and 47 of the Charter in particular. Firstly, Malta is exercising full control and authority over the individuals being kept on board the vessels. It is clear that this is not a mere restriction of movement for the purposes of border control but a deprivation of personal liberty contrary to Article 6 of the Charter. Secondly, we contended that the right to asylum, guaranteed under Article 18 of the Charter, would be rendered theoretical when border control and surveillance results in the prevention of asylum-seekers from physically accessing and exercising their rights. Lastly, the persons on board do not have access to legal counsel and do not have any access to an effective remedy for the rights that have been breached.

Europa II – Credit: MaltaToday

The ill-treatment aboard the Captain Morgan ships must be stopped at once!

We are disgusted at the situation of over 160 men detained on the Captain Morgan ships, some for more than three weeks. In detaining them out at sea, Malta is denying them basic human rights, dignity and voice. The human body and the human spirit can only endure so much. These young men have been exposed to too much trauma, we fear their physical and mental well-being will deteriorate fast. Malta is responsible for their ongoing detention out at sea and for the conditions they are forced to endure.

We remind the authorities that these are compounded by the psychological distress that they would have been forced to endure in the past weeks and months throughout their journey, including the violence that they would have been exposed to in Libya. 

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Prioritise life and let them in!

We are utterly disillusioned by the news that, once more, in the space of less than two weeks, almost 150 people are stranded out at sea in Malta’s SAR, while Malta waits for other European states to step in and offer support.

Yesterday morning, NGOs and media sources reported that some 78 migrants had been rescued from a vessel in distress in Malta’s SAR. They are currently aboard the Marina, a commercial vessel, close to Lampedusa waiting for directions from Malta, the state responsible for ensuring rescue and disembarkation in a safe port, about where to disembark. NGOs monitoring the migrants’ situation have reported that they are lacking food, water and medical care.

A further 57 rescued migrants are on board the Captain Morgan vessel, Europa II, normally used for coastal cruising. The Europa II was chartered by the Maltese government in order to board migrants that were transferred from the private vessel that rescued them. The government has stated that they will remain there, on the high seas, until there are concrete commitments for their relocation from other European states.

Although the migrants aboard the Europa II have been provided with food, water, basic supplies and emergency medical care, this is nowhere near enough to fulfill Malta’s international human rights obligations. This action by the Maltese government directly undermines the protection of human life at Europe’s borders.  

We recognise the challenges that Malta and Italy are facing to deal with the increase in boat arrivals with little or no support from other Member States. In spite of this and although facing demanding circumstances, the Italian authorities allowed rescued migrants from two vessels to disembark in Lampedusa this weekend.

However, these challenges cannot be used as an excuse to abdicate our responsibility to save lives and to ensure that the rights of all within our jurisdiction are safeguarded. This duty is not only a legal but also a moral imperative which can never be subjected to political conditions, such as the availability of concrete offers of relocation.

While it is no doubt important to safeguard public health and secure our national borders, this cannot, and should never be, at the cost of the life or safety of others, especially those fleeing conflict zones and seeking refuge.

We urge the government to prioritise the safety and security of the men, women and children on board the Marina and Europa II, and to allow the rescued migrants to disembark in Malta.

We also appeal to Member States to act on the basis of the principle of solidarity and the fair sharing of responsibilities. Case-by-case arrangements and ad hoc solutions are contributing to dangerous political games and unnecessary suffering. We urge you to prioritise life and let them in!


  1. aditus foundation
  2. African Media Association Malta
  3. Anti-Poverty Forum Malta
  4. Association for Justice, Equality and Peace (AJEP)
  5. Blue Door English
  6. Christian Life Community Malta
  7. Church Homes for the Elderly
  8. Dar Hosea
  9. Department for Inclusion and Access to Learning
  10. Fondazzjoni Sebh
  11. Great Oak Malta Association
  12. Integra Foundation
  13. Jesuit Refugee Service Malta
  14. Justice & Peace Commission
  15. Kopin
  16. Kunsill Nazzjonali taż-Żgħażagħ
  17. Malta Emigrants’ Commission
  18. Malta LGBTIQ Rights Movement (MGRM)
  19. Migrant Women Association Malta
  20. Moviment Graffitti
  21. OASI foundation
  22. Office of the Dean of the Faculty of Education  
  23. Office of the Dean of the Faculty for Social Wellbeing
  24. Repubblika
  25. Paolo Freire Institute
  26. People for Change Foundation
  27. Salesians Osanna Pia Home
  28. Segretarjat Assistenza Socjali tal-Azzjoni Kattolika Maltija
  29. SOS Malta
  30. St Jeanne Antide Foundation
  31. The Daphne Caruana Galizia Foundation
  32. Women’s Rights Foundation  

The Government must provide information on rescue operations

We are deeply concerned that the fate of around 62 migrants in distress at sea remains shrouded in secrecy. For more than 24 hours, men, women and children were known by European and Maltese authorities to be in distress within Malta’s Search and Rescue Zone, yet nothing is known of actions taken to ensure their safety. We remain in the dark as to whether the Government decided to rescue them, to refuse their entry to Malta, to return them to Libya or to let them drown.  

It is disconcerting that news of migrants about to drown and who could be saved by Malta’s prompt intervention does not trigger any sort of response from the Government. We wholly appreciate Malta’s challenges in managing the arrival of migrants and refugees. Yet it is nonetheless abhorrent that these challenges render us insensitive to loss of life right at our doorstep.

The Government must not remain silent before such tragic incidents and must fully disclose policies, decisions and actions that could result in loss of life.

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