By most accounts, the MT Salamis episode last week was the story of a mutiny. For the Government, the captain mutinied against international law by disobeying instructions to take the migrants back to Libya. For the Government’s critics, it was Malta’s mutiny against the spirit if not the letter of human rights law and the principles governing the saving of lives at sea.

So which was it? It would seem one has to side with one or the other. But that would be a mistake. Neither is completely wrong or completely right.

The issue boils down to two questions. Should Malta have accepted the migrants? And should the captain have been instructed to take the migrants back to Libya?

Both the Government and its critics agree that if you answer yes to one question (whichever), you must answer no to the other. If Malta had no intention to take the migrants, then surely there was no alternative than to instruct the captain to take them back to Libya. If, on the other hand, Malta recognises that Libya is unsafe for returned migrants, then surely Malta was bound to accept them.

Unfortunately, both arguments are flawed. Malta should not have accepted the migrants. But it was wrong to instruct the captain to return them to Libya.

Both sides are clear about the absurdity of the other’s position but not of their own.

Take the critics who accused Malta of quibbling about law when lives were at stake. Joseph Muscat and Manuel Mallia pointed out that at stake was a key principle that determines whose obligation it is to accept migrants in the circumstances we saw last week.

If one accepts that migrants picked up in Libyan waters are to be brought to Malta, since Libya itself is ruled out, we could easily find ourselves in a situation where virtually all migrants detected in Libyan waters or on high seas (but in Malta’s search and rescue area) would be brought to Malta.

It would be possible for an EU State (say, Italy or Greece) to use its surveillance equipment to instruct a vessel to pick migrants up and avoid the risk of these migrants ever entering its waters because if they’re picked up early enough they would have to be brought to Malta.

And we don’t have to strain too hard to see that if it’s unacceptable for a captain to return migrants found at sea to the Libyan authorities, it should also be unacceptable for stowaways to be returned. But what happens then?

It’s not just Malta and Italy that come out of the Salamis episode with spots on their record

Human smuggling would suddenly become much easier. No longer would smugglers need to invest in boats; they’d just need to bribe someone to get people on a ship.

Of course, Malta could have accepted this ship and made clear it did not signify a change in Malta’s long-standing position on the issue. But that would have simply postponed matters. The situation would have repeated itself. At some point Malta would have to take the same stand it took last week.

But just because Mallia was right on this point doesn’t mean we must accept his reported statement that Libya had to be safe as the migrants had just come from there. If I’ve just come from a burning house, does the fact that I was there make it safe?

Libya is not burning and migrants sometimes spend many months (if not more) there before coming to Malta. But it’s one thing to be taking one’s chances at being undetected in a large country; it’s another to be handed directly to the authorities with a deeply unreliable reputation for human rights protection.

If Libya is unsafe when it comes to push backs, then it’s unsafe for any migrants to be returned there. Indeed, although Mallia claimed that the captain was breaking international law in disobeying the orders by Malta (and Italy) to return the migrants to Libya, that’s not entirely clear.

Ship captains have their own guidelines (not laws, but strong guidelines nonetheless) when it comes to saving lives at sea.

The guidelines’ notion of what’s a safe country would not include Libya today.

In a way, the critics didn’t make their case strongly enough. They took aim at Malta but neglected Italy, which had also issued the same instructions. We’ve had not one but two EU member states issue orders that went against the spirit if not the letter of human rights law and the captain’s own professional guidelines.

Here’s a situation where each option leads to absurd consequences. If Malta accepted the migrants (now or on some other occasion), a new legal regime would come into effect that could realistically mean all migrants from Libya end up in Malta.

If the migrants were returned to Libya, ignoring human rights concerns would be legitimised. And if one refused to accept the migrants as well as to send them back, the ship would be in limbo until a State took it in on humanitarian grounds.

When all possible options are absurd, that’s a strong sign that it’s the legal regime itself that is in crisis. It has no clear disembarkation rules. But those will never be resolved until they are twinned to fair rules for burden sharing.

It’s not just Malta and Italy that come out of the Salamis episode with spots on their record.

It’s the rest of Europe, too, scolding Malta for being irresponsible but unwilling to live up to its own responsibilities.

ranierfsadni@europe.com