Aphrodite Papachristodoulou is a PhD researcher at the Sutherland School of Law, University College Dublin (UCD) and a member of the UCD Centre of Human Rights. Prior to joining UCD, Aphrodite worked and qualified as a lawyer at the Cyprus Bar Association.
The principle of saving the lives of those in distress at sea is not only a long-standing and fundamental tradition of seafaring, but also incorporated as a legal duty of the search and rescue (‘SAR’) system under international law. Yet, the complex character of the phenomenon of mixed migration by sea exposed the fragmentation of international law whereby the imperative of saving lives at sea is undergoing systematic obstruction in the Mediterranean Sea. This is evidenced by a plethora of alarming reports of deaths and human rights abuses of migrants intercepted by and returned to Libya (see here, here and here), with questions increasingly being asked over both the EU and its member states’ complicity in breaching fundamental principles of international law (not least the non-refoulement obligation).
European states have upped their efforts to stamp out SAR activity, particularly since 2017, including not only closing their ports to, but also targeting and criminalizing humanitarian non-governmental organisations (NGOs) that perform SAR activities (e.g. ‘Iuventa’). Unquestionably, with fewer NGO vessels in the Mediterranean and with the March 2019 EU decision to suspend all the vessels of its naval Operation Sophia, the right of irregular migrants to seek international protection vis-à-vis asylum has become elusive. These changes have brought commercial vessels to the frontline of SAR operations once again, with the burden increasingly falling on the shipping industry. This blog post sketches the issues that arise from the involvement of commercial vessels in the Mediterranean SAR apparatus and how this involvement risks jeopardising the principle of saving lives at sea.
The Shipping Industry in the SAR apparatus
Commercial vessels when conducting SAR activities are operating under the duty to render assistance to persons in distress at sea, as enshrined in Article 98 of the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’). Whilst the provision provides that the duty bearers, a priori, are states, it is nonetheless recognised that the duty applies to both states and shipmasters flying its flag, including private vessels, military and other state-owned vessels. Looking at the auspices of the International Maritime Organization (IMO), the requirement found in its International Convention for the Safety of Life at Sea 1974 (‘SOLAS’) and International Convention on Maritime Search and Rescue 1979 (‘SAR Convention’), is one that falls upon masters of ships to provide assistance and disembark the rescued persons in a ‘place of safety’.
In this respect, the EU member states acting individually in the Mediterranean have a major role to play in the operational potency of the SAR system, one that can put its effectiveness at stake in so far as it protects life at sea. The duty that is imposed upon coastal states to co-ordinate and maintain a SAR service is laid down in the second paragraph of Article 98 UNCLOS and provides as follows:
“Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose”.
As it is evident from the above provision, international law does not entail a concomitant obligation on states to accept disembarkation at their ports but rather leaves the task wide open to state governments in a way that makes room for discretion and choice. As such, it seems that states have an unlimited sovereign power, granted by their right to control their borders, which is often inconsistent with international human rights and refugee law obligations they are bound by.
In this manner, state reluctance for disembarkation and asylum processing amply increases the strain on private actors (the shipping industry in this case) and primarily discourages those vessels that might otherwise be ready to intervene. In fact, the application of this duty in practice and, specifically, to the events of the Mediterranean Sea, has attracted controversial tactics and allowed for ad hoc arrangements, where governments refuse to allow vessels to disembark rescued people in their ports. In this light, private vessels called to perform rescues are inevitably caught between their law of the sea obligations to assist people in distress at sea and an ever more populist political climate characterised by a moral panic at the prospect of migrant arrivals.
Closure of disembarkation ports
Unpacking the diplomatic (and legal) quarrels which increasingly unfold between state governments can be evidenced in two recent rescue tales involving the commercial vessels El Hiblu 1 and Nivin. The repercussions of recent tactics, like Italy’s deputy prime minister and Ministry of Interior Matteo Salvini’s policy of closing ports to and refusal of disembarkation of vessels engaged in SAR in the Mediterranean, has included further diluting compliance with this fundamental duty to render assistance. As a result, this duty has become what I will herein call a fool’s hope for the thousands of migrants who choose to face the risk of death or severe injury for the chance to escape their homeland and start a new life overseas.
In March 2019, El Hiblu 1, a Turkish oil tanker, was hijacked by the 108 migrants it rescued. The reason behind the hijacking, as the master of the ship admitted, was the migrants’ realisation that they were to be taken back to Libya, which was the original course of the vessel. Thereafter, the shipmaster lost control of the vessel and, after numerous threats, changed the course of his vessel and headed towards Europe, hoping to disembark the migrants either in Italy or Malta. Subsequently, Italy’s deputy prime minister treated this situation as an ‘act of piracy’ and refused to allow access to the distressed vessel in order for disembarkation to take place, leading to a deadlock. Eventually, the Maltese special forces intervened and restored control to the shipmaster, disembarking the rescued persons to a Maltese port. Emphatically, what this instance demonstrates is that, from the shipping industry’s perspective, compliance with the principle of saving lives at sea comes with a great burden, one that can have grave economic as well as legal consequences. The vessel indeed incurred delays and additional commercial costs as a result of deviation from the ship’s original route when it was forced to change its direction towards Europe. Although shipmasters are well aware of the long-established moral and legal obligation to rescue people in distress at sea, it is clear that commercial pressures and the lack of adequate infrastructure for rescue operations are likely to undermine the ability and willingness of private vessels to engage in such operations, especially given this very recent incident which highlighted to an alarming extent the possible repercussions.
The heated atmosphere can be observed in another similar instance in November 2018. The Nivin, a Panama-flagged cargo ship, upon rescuing more than 80 migrants in the Mediterranean took them back to the port of Mistrata, Libya (its planned destination). Subsequent to that, the rescued migrants on board categorically refused to disembark the vessel for ten days, with the result of a forceful and violent removal from the vessel by Libyan security forces, to transfer the migrants to a detention centre. Several migrants informed the Associated Press that a number of commercial vessels had bypassed them before they were eventually rescued by the Nivin, even though they had witnessed their sinking rubber boat. Similar occasions of deliberately ignoring distress calls have been witnessed in the past, whereby masters of private vessels opt to avoid their international legal responsibility in this respect (one further example is the left-to-die boat). Certainly, such behaviour stands contrary to the master’s duties and undoubtedly questions primarily their moral constitution.
The Nivin incident, in principle, amounts to a maritime push-back, which is in violation of the non-refoulement principle, yet, like many other cases, it was not judicially challenged (see Amnesty report). Whilst not underestimating the role that commercial vessels play, it is clear that such engagement – in the light of scarcity of alternative vessels to intervene – can lead to privatised push-backs, where migrants are returned to territories where they face rights abuses. On this view, the European Court of Human Rights in the landmark case Hirsi Jamaa v Italy, remarked that Libya does not constitute a place of safety and that the return of rescued people back to Libya will likely breach international law.
It is staggering to witness the ways in which states arguably manipulate their SAR obligations by directing commercial vessels to perform rescues in order to curb migration, thereby turning a blind eye to the harmful system of arbitrary detention in Libya. Had these rescues been conducted by the state’s patrol boats, then the state would have been under a clear legal obligation to disembark the rescued persons in its home port, where their claims for international protection could be properly assessed . In this respect, the act of merely directing a rescue operation does not adhere to the meaning of rendering assistance at sea as provided by Article 98 UNCLOS. For this assistance and duty to be properly and effectively considered to come to an end, states need to cooperate and coordinate the rescue with the result of the rescued persons being disembarked to a place of safety (see Regulation 33, SOLAS and Annex to the SAR Convention paragraph 1.3.2).
These examples reveal a breakdown of state cooperation in contravention of maritime conventions leading to a weakened international SAR system, inadequate in preserving the principle of savings lives at sea. The post also brought to the forefront an acute challenge to the ability of a master of a commercial vessel to comply with human rights and customary norms along with its law of the sea obligations when conducting rescues. Given the hostile reception that commercial vessels are likely to face in attempting to disembark migrants post-rescue, it is difficult to see how the shipping industry can be actively incentivised to play not only a more proactive role, but also one that complies with international human rights standards. On the other hand, it is worth remembering that SAR was predominantly conceived as an immediate response to an accident and overreliance on commercial vessels should not be considered a policy solution to this on-going cardinal humanitarian crisis.