Halfway Through 2023: A Year of Unparalleled, Avoidable Migrant Tragedies at Sea

In April 2023, I wrote about the Crotone migrant shipwreck which occurred on February 26, 2023, and ‘shocked’ the European Union (EU). Approximately 94 lives were lost, several others are still missing, and 86 survived. The incident was yet another paradigm of the delayed/non-assistance saga that has been unfolding in the Mediterranean Sea region at the expense of human lives, as the EU continuously fails to provide legal and safe pathways to protection. The calls to end the practice of non-assistance at sea, which undermines well-established obligations of international law of the sea are countless.

The ‘migration crisis’ has once again been thrust into the spotlight in what can be described as the second deadliest shipwreck on record in the Mediterranean since the April 18, 2015, a migrant shipwreck off Libya that killed some 1,100 people. This time, the incident unfolded outside Greece, near the tourist destination and coastal town of Pylos. The events are currently being reconstructed and efforts are still in place to locate those missing (presumed dead), which according to the UN amount to approximately 500 people. The International Organization for Migration has calculated that in total, approximately 750 people were traveling on the boat, of whom 78 are dead and 104 survived the wreck.

The facts in a nutshell

From what we know so far, the Hellenic Coast Guard on the morning of June 13, 2023, received information about an overcrowded boat within Greece’s Search and Rescue Region (SRR), carrying passengers without life jackets. This information was forwarded by Frontex (the European Border and Coast Guard Agency) to the Greek authorities (as well as the Italian and Maltese authorities), who first spotted the boat at 12:47 EET. Following this, the Hellenic Coast Guard was again alerted by AlarmPhone (an alarming number to support rescue operations) that the people on the boat were in distress and asking for help. Despite this information about a potential distress situation raised with the Hellenic Coast Guard and the fact that later that evening the boat in distress made contact with a Hellenic merchant vessel (‘Faithful Warrior’) that was in close proximity as well as with a coast guard vessel from Crete, no rescue attempt was initiated.

The International Legal Framework Surrounding Rescues at Sea

The duty to assist persons in distress at sea without delay is a well-established moral norm and a core principle of customary international law, now codified in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) under Article 98. Certainly, when formulating this duty, the drafters of UNCLOS did not have in mind the massive migration movements or shipwreck tragedies we are witnessing in the last decade. Consequently, distress situations have become regularized in the maritime space, where regrettably thousands of migrants perish each year.

The duty extends both to State-owned vessels (e.g., coast guards) or other vessels (e.g., merchant vessels) and coastal States in the vicinity, and assistance shall be rendered to ‘any person’ found at sea (regardless of a person’s nationality, status or the circumstances in which they are found).  Moreover, coastal States have authority over their search and rescue (SAR) zone and hold an obligation of due diligence to provide adequate and effective SAR services in their SRR (the International Maritime Organization’s (IMO) Maritime Safety Committee has divided the world’s oceans into 13 national SAR regions). For instance, if a boat in distress finds itself within a State’s SRR (e.g., Italy), it is the responsibility of that State (Italy) to coordinate the operation and ensure that assistance is rendered.

With regard to the central meaning of the term ‘distress’, which I have analyzed previously here, in the case of Kate A Hoff, the US-Mexican General Claims Commission illustrated that a situation of distress may still arise even if the vessel is not ‘dashed against the rocks’, meaning that the danger to the vessel or person may not be acute but will still qualify as a claim of distress. Further clarifications have been provided by the Parliamentary Committee of the Council of Europe (PACE), which published a report in 2012 setting out indicators of what the notion of ‘distress’ entails. Amongst these were: a) how crowded a boat is; b) how great the distance from the shore; and c) how many people on board presented clear signs of distress.

Analysis

With this in mind, it can be anticipated that an overcrowded boat (and thus unseaworthy) together with evidence generated by aerial pictures showing that the passengers had no life jackets, coupled with prior knowledge of the history of casualties taking place across the various Mediterranean Sea routes, should have indicated a reasonably certain danger to the lives of persons that will qualify as distress.

As for the burning argument that the migrants did not place an explicit distress call to alert authorities, the 1979 International Convention on Maritime Search and Rescue provides in Article 2.1.9 of the Annex that ‘on receiving information that a person is in distress at sea in an area within which a Party provides for the overall co-ordination of search and rescue operations, the responsible authorities of that Party shall take urgent steps to provide the most appropriate assistance available’ (emphasis added). This is also reflected in Regulation 33 Chapter V of the 1974 International Convention for the Safety of Life at Sea with reference to shipmasters who are in a position to be able to provide assistance ‘on receiving information from any source’ (emphasis added). It needs to be stressed that the word ‘signal’ was originally included in the aforementioned provision and was later replaced by ‘information’ in the 2004 IMO amendments.

In light of the foregoing, this amendment is important to comprehend as it arguably expands the scope of protection to cases where, for example, individuals might not have the means or are unable to make a distress call themselves to alert the authorities. Hence, it is reasonable to assume that the lack of a direct distress call alone does not relieve coastal States of their international obligations on rescue at sea. After all, a Rescue Coordination Centre is a unit responsible for promoting the efficient organisation of SAR activities within its SRR, and must be capable of objectively assessing a situation and acting on the basis of relevant information. To support otherwise would undermine the very purpose of the duty to render assistance, which is to protect human life at sea, and the entire SAR system.

Since the State responsible for the SAR area here was Greece, it should have at least ensured that the information about people in distress received from AlarmPhone several hours before the boat capsized was handled appropriately by making an objective assessment of the situation. As Seline Trevisanut has argued, while Article 98 (2) of UNCLOS does not require a coastal State to directly undertake a SAR operation, the wording suggests that it is not a mere obligation to provide the means, ‘but an obligation to reach a certain level of service’.

It follows, that the Hellenic Coast Guard had a due diligence obligation to exercise best efforts to activate the available SAR services in that geographical area and to employ all adequate measures to provide rescue services to preserve the safety of life at sea. Nonetheless, the Greek authorities after observing the course of the boat by a coast guard helicopter (17:35 EET), argued that the boat maintained a steady course and speed until late evening. However, shipping activity documented in an animated map shows that the migrant boat had barely moved from its location in the previous 7 hours. This casts doubt on the Hellenic Coast Guard’s claim that the boat had not experienced any problems. Even more troubling is the fact that a coast guard boat from Crete ‘discreetly observed’ the boat from a distance hours before it sank. Consequently, the argument that no direct distress call was made to the Greek authorities becomes inconsequential given the clear evidence of the boat’s condition, AlarmPhone’s earlier request for help and the continued involvement of several actors.

Lastly, there have been reports from the Hellenic Coast Guard supporting that the migrants refused assistance, arguably because they wished to continue to Italy. Conversely, there are also statements that deny this information. It needs to be noted that the circumstances of the shipwreck are yet to be clarified as there are contradictory statements from the authorities and the testimonies of the survivors are still pending. However, as per the law of the sea, it is clear that assistance shall be rendered when life is in danger at sea, regardless of whether or not it has been refused.  This follows from UNCLOS, which provides no explicit or implicit exception to the duty to rescue. In light of the foregoing, where States fail to comply with their duty to save life at sea, international responsibility of the State will arise.

Conclusion

In my view, assuming the above facts are correct, the necessary elements were present to activate the duty to render assistance at sea as it was then up to the Hellenic Coast Guard who received the information from two different sources about the overcrowded migrants’ boat in their SRR, and therefore should have ensured the cooperation and coordination of SAR activities.  This is not another case of migrants ending up missing; as unpalatable as this may seem, this is a case where migrants called for help, several actors witnessed and came in close contact with the boat in question, and yet all parties involved chose to remain inactive.

Certainly, current efforts to address the particular challenges faced by migrants at sea are not effective, as the attention is deflected to security measures for deterring people to leave their countries in the first place, rather than efforts to provide for an adequate SAR system which will preserve their rights and lives. However, migration – which in essence means human mobility – will not stop, as people will continue to flee persecution, violence, poverty, environmental degradation and political unrest in their countries.

A plethora of questions remain unanswered in the Pylos shipwreck; What steps did Frontex take after its first sighting of the migrants’ boat the morning of June 13, 2023? Why did the merchant vessels that were in close proximity to the migrant boat fail to provide rescue services? How did the other authorities, Italy and Malta, who received the information, respond? Whilst a conclusive determination on accountability is difficult to be made at this stage, the Pylos shipwreck is an appalling illustration of the ongoing failure of the EU and its Member States both to address the structural causes of the increasing number of border deaths and to provide a humanitarian migration response in the context of external border management.

Photo: Mzximvs VdB (2012)