Drowning in the Mediterranean: Time to think and act regionally

Europe, that is, the EU and its institutions, currently asserts the right to manage the movement of people across the Mediterranean, and with that comes responsibility, for special protection is owed to those whom it would manage. ‘Responsibility’ is multi-dimensional. Fault, in the sense of wilful or negligent conduct, may be relevant; or responsibility may follow from the breach of due diligence obligations; and actual liability itself may be contingent on circumstances, as demonstrated years after the event by the HRC decisions in Malta and Italy (on which Marko Milanovic commented so astutely). But responsibility is not only individual; it is also collective, and the present system is full of holes.

On 26 March, the EU Common Security and Defence Policy military operation in the Mediterranean – EUNAVFOR MED IRINI – was extended for two years, tasked with continuing to secure the implementation of the UN arms embargo to Libya and disrupting human smuggling and trafficking operations. But just two weeks before, the UN’s Panel of Experts on Libya noted that the embargo ‘remains totally ineffective’. Moreover, human rights violations continue to affect migrants and asylum seekers, while most of those brought back ‘end up in facilities rife with human rights abuses, hundreds of them remain unaccounted for.’ (See UN doc. S/2021/229, ‘Final report of the Panel of Experts on Libya established pursuant to Security Council resolution 1973 (2011)’, 8 March 2021, paras. 40–46).

Unlike previous EU operations, IRINI has not rescued a single person in distress at sea, despite the Commissioner for Home Affairs recognizing that securing the safety of life as a moral duty, a legal obligation, and a priority. (See ECRE Weekly Bulletin, 2 April 2021).

The Commission may have no legal competence to coordinate search and rescue, but the regime of responsibility does not stop at the point of ‘jurisdiction’. Accountability should not depend on the availability of a remedy in the individual case, and equally it cannot wait on institutional measures to correct themselves. The crisis regarding Frontex – the European Border and Coast Guard Agency – and its alleged involvement or complicity in various serious incidents is a case in point, where internal oversight is frustrated by stalling and interference in recruitment of fundamental rights advisors and external mechanisms are hamstrung by lethargy and alternative agendas. (See Catherine Woollard, Director, European Council on Refugees and Exiles, Editorial, ‘Fronting up to Frontex”, ECRE Weekly Bulletin, 2 April 2021).

The duty of rescue of those in distress at sea is incontestable, confirmed by UNCLOS and ‘operationalized’ in the SOLAS and SAR conventions (summarised by Fenella Billing here). But despite the primary role of the State responsible for a search and rescue region, an obligation deficit remains with regard to disembarkation – in large measure because no State can come close to anticipating with confidence the potential scope of its responsibilities; and none, it seems, can yet rely on the support of others.

All there is are the IMO’s non-binding guidelines on disembarkation in a place of safety, but the proposed Pact on Asylum and Migration offers a moment in which the EU can recognize that rescue in the context of SAR will only be effective with international cooperation.

The customary law is there already, and clearly identifies the key elements of legal responsibility in comparable situations – awareness of ongoing risk endangering life as sea, knowledge of obligations regarding search and rescue and human rights, and the capacity to respond individually and collectively. (See International Court of Justice, United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, 24 May 1980, ICJ Reports, 1980, p. 3, 32-3, §68).

These conditions are satisfied. The situation in the Mediterranean engages many potential actors, few of which will necessarily have a direct juridical relationship with the individuals at risk, such as would establish the jurisdictional link demanded by human rights treaties. But the circumstances and the known facts clearly raise the individual and collective responsibility of identifiable States to save lives at risk and to ensure, respect and protect human rights.

This is not a counsel of perfection, or a statement of obligation to achieve the required result in all circumstances, but rather ‘an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result’. (International Tribunal for the Law of the Sea, Seabed Disputes Chamber, Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10, §110).

What we see is a positive protection obligation, not immediately absolute in the sense of the prohibition of torture, but a positive due diligence obligation to save lives; and thereafter to treat those rescued in accordance with settled law. This will require a policy change at the regional level. It means recognizing that migration is not a security issue justifying brutality, push-backs and take-backs, but a perennial phenomenon that calls for mobilizing the obligations that bind Europe collectively as it seeks to control passage through the Mediterranean. While the primary responsibility of rescuing States is clearly delineated, it is time to move beyond the individualised model to one which recognizes the dimension of common, collective interest, which takes account of the principle of non-refoulement, and which contributes to better management overall.

A starting point for disembarkation is flag-State responsibility in the case of rescue or interception by public ships (that is, a State’s naval or equivalent vessels). But that must not be allowed to result in gross disparities between States, lest they be disinclined to engage in search and rescue. When States do commit to saving lives, they fulfil a community responsibility, as do NGO-sponsored missions.

In the case of merchant vessels or NGO-sponsored search and rescue ships, an internationally agreed and administered pool of disembarkation guarantees is needed, with no criminalisation of rescue and provision for compensating ships’ owners for at least some of the costs incurred when ships’ masters fulfil their international legal duties. A formula for equitable sharing must in turn secure prompt disembarkation and lead on to land-based assistance, processing, and solutions.

Assistance to States of transit is also need, for many of them are facing new challenges in the management of migration, but without the infrastructural capacity to accommodate, assist, protect and process non-nationals on the move. Current policy and practice merely seek to prevent migrants and refugees reaching Europe, essentially by moving border control farther and farther outwards, ‘fighting’ the traffickers, building fences, and, we suppose, ‘preventing’ illegal migration. The goals depend, as does so much of today’s migration management, on the readiness of others to do the dirty work; but as in the case of Libya, the deplorable conditions and human rights violations awaiting those returned cannot be ignored.

There is as yet no seamless web of rights and obligations when it comes to seaborne migration, but the New Pact on Asylum and Migration offers Europe a chance to make coherent sense of much of what is going on in the Mediterranean – recognizing that, as customary international law requires, the effectiveness of obligations such as rescue at sea and non-refoulement depend on working together, on practical international cooperation.