Visiting Scholar at Columbia Law School, Research Fellow at University of Cagliari (Italy). She holds a Maîtrise en Droit International from University Paris I and a PhD in International Law from the University of Milan. In 2010 she gave a series of lectures at the Academy of European Law (EUI) on “EU immigration policy and international protection: EU joint border control and international obligations”.
On Sunday, 8 May 2011, the British newspaper The Guardian reported the story of a boat carrying 72 persons, among them asylum seekers, women and children, which left Tripoli (Libya) for the Italian island of Lampedusa at the end of March 2011. After 16 days at sea, the boat was washed up on the Libyan shore with only 11 survivors. The survivors reported that during the journey they used their satellite phone, which later ran out of battery, to call an Eritrean priest in Rome for help who then alerted the Italian Coast Guard. They also said that a helicopter overflew them and threw water and biscuits down onto their boat. An aircraft carrier sighted them thereafter. No one rescued them.
This tragedy once again demonstrates the failure of states in implementing their duty to render assistance at sea, as provided by Article 98 of the United Nations Convention on the Law of the Sea, and by the Search and Rescue Convention and the Safety of Life at Sea Convention. It also highlights the lack of coordination among Mediterranean states. In this brief note I wish to cast this incident in a legal perspective. I will spell out the legal duty to render assistance at sea, explain the situation in the Mediterranean – drawing particular attention to the lack of mechanisms for coordination and cooperation – and, lastly, I will highlight how this disturbing condition results is a result of the immigration policies of the individual states involved.
The content of the duty to render assistance at sea
After the impact of the Indochinese crisis in the Seventies and in the wake of instances of non-rescue at sea, states adopted the Search and Rescue Convention (SAR Convention) in 1979 in the framework of the International Maritime Organization (IMO). The Convention aims to create an international system for coordinating rescue operations and for guaranteeing their effectiveness, efficiency and safety. States parties are to exercise SAR services in the area under their responsibility and are invited to conclude SAR agreements with neighbouring States to regulate and coordinate operations and rescue services in the maritime zone designated in the agreement. It is important to note that undertaking rescue operations does not exhaust the duty to render assistance – a duty now codified in Article 98 of the Law of the Sea Convention, but already existing as part of earlier treaty law and considered a principle of customary law. This duty is only fully met when the rescued persons can disembark in a place of safety.
During the general revision of the SAR system in 2004, the IMO’s Maritime Safety Committee (MSC) faced in particular the question of where rescued persons can and should disembark. The MSC adopted two Resolutions that entered into force on 1 July 2006, amending the Safety of Life at Sea Convention (SOLAS Convention), adopted in 1989, and the SAR Convention. These amendments aim to guarantee assistance to rescued persons while minimizing the negative consequences for the rescuing vessel and focus on the determination of the place of safety, namely the location where the rescue operations can be considered completed.
More specifically, these amendments stipulate that the state in whose SAR zone the operation takes place has the duty to provide or, at least, to secure a place of safety for the rescued persons. This does not entail any obligation by the state to authorize the rescuing vessel to enter its ports. For example, the state could reach an agreement with a neighbouring state for the reception of the rescued persons, as used to happen between Australia and Nauru (consider the so-called Tampa incident). Moreover, the SAR Convention provides the possibility for contracting parties to create SAR regions, consisting of joint SAR zones (meaning that two or more states assume responsibility, like Australia and Indonesia did in 2004). The participating states can thus create a system of coordination, including the exchange of information through Regional Coordination Centres and the use by one party of the SAR units and facilities of the other party. Furthermore, they can carry out cross-border operations in the shared zone and organize joint patrols.
The case at hand: lacking cooperation in the Mediterranean
Several States in the Mediterranean have declared a SAR region but, as of now, there exists no regional agreement on the coordination among them. For instance, the episode which is the focus of this short comment, shows that the migrants called a priest in Rome who then alerted the Italian coastguard. The Italian authorities then localised the boat (and it might be logical to presume that the helicopter overflying the boat was Italian, but no official statement has been made yet) and alerted the Maltese authorities because the boat was approaching the Maltese SAR zone. Note that Malta has not yet released any official comment.
Some Mediterranean States have recently engaged in a debate at the IMO that centred precisely on the application of the amendments to the SAR and SOLAS Conventions and on how competences and responsibilities could be shared and combined in rendering SAR services. Spain and Italy submitted to the IMO Sub-Committee on Flag State Implementation (FSI) a joint statement (FSI 17/15/1, 13 February 2009) in which they complained about the non-compliance of some coastal States in the implementation of their SAR obligations. They found that
“in the majority of the operations where Spanish- or Italian-flagged ships have been involved, the Governments responsible for the SAR regions, where persons have been rescued, have failed to provide a safe place for their disembarkation”.
They thus highlighted the excessive burden of responsibility left on the ship masters of the rescuing units and proposed further amendments to the SAR and SOLAS Conventions. These amendments would in particular provide that disembarkation and transport to a place of safety would have to be carried out under the control of the state primarily responsible, i.e., the state responsible for the SAR zone where the persons were rescued. In the episode at hand, according to The Guardian, a spokesman for the Italian coastguard said that Maltese authorities were advised that the vessel was heading towards their SAR zone. Consistently with the position expressed at IMO, Italy relied on the state in whose SAR zone the rescue operation was supposed to be performed. Such a behaviour, legally justifiable, might however be criticised in the light of the practice Italy and France referred to in the above mentioned amendment proposal. We can then wonder whether Italian authorities, being the first alerted of the situation, might have had an obligation of due diligence and needed to make sure that the vessel would actually be rescued. Either way, such an obligation would not have nullified or diminished Malta’s duty to render assistance.
This proposal was however contested by Malta (which has not ratified the 2006 amendments yet), criticising the lack of considerations for “geographic realities”. Malta develops its argument on the basis of its own particular situation; namely, that it is a small island, which has unilaterally declared an enormous SAR zone (more than 700 times the size of its land mass). It thus proposed a model in which the central concept is “that disembarkation should occur in the nearest safe haven namely that port closest to the location of the rescue which may be deemed as a place of safety”. On its view, rescued persons should be disembarked in the nearest port to the place of rescue, regardless of whose zone they are found in. In the situation at issue, the closest port would have been in Libya. Note that to the extent that the migrants are not refugees or otherwise internationally protected, they can in principle be diverted back. But given present circumstances, they might fear mistreatment or even torture in Libya. The principle of non-refoulement might thus inhibit such a course of action, a point to which I will return shortly.
The extension of SAR zones generally follows states’ shoreline and guarantees proximity to the land. Malta, by its own admission, sometimes has difficulties in dealing with the rescued persons in its SAR zone. The SAR Convention asks States to guarantee continuous and efficient SAR services in the area under their responsibility. A State should declare only such a SAR zone, that it can actually operate.
When immigration policies endanger the safety of life at sea
The present situation threatens the life of migrants and generally undermines the safety of navigation in the whole Mediterranean area. The disagreement between the Mediterranean states foretells the existing difficulties in possibly reaching a SAR agreement which would determine who has to intervene and where. But only such agreement holds promise that tragedies due to lack of cooperation do not repeat in the future.
The disagreement between Mediterranean states on the content of the duty to render assistance is inextricably linked with their immigration policy at the national and EU level. EU Mediterranean states (mainly Greece, Italy, Malta and Spain) have adopted in the last years a defensive approach towards irregular migration by sea consisting mainly in push-back operations. Without entering into a detailed analysis of such measures, it is worth recalling that these operations have been strongly criticised by both NGOs and scholars because they are in tension with obligations stemming from human rights and asylum law (in particular the principle of non-refoulement).
Such mechanisms, it is crucial to note, are used in order to try to avoid that migrants enter their jurisdiction, which would trigger a host of obligations, including the orderly reception of migrants and processing their possible requests for asylum. When performed at sea, non-entry mechanisms may violate human rights and asylum law as well as obligations stemming from the law of the sea. Notably, the duty to render assistance, as described above, applies without any consideration concerning the status of the person in need. Should the person be the passenger of a cruise boat or an irregular migrant trying to make his or her way to Europe on an unsafe vessel does not matter.