David Koppe is research fellow at the Institute for Public International Law, European Law and Public Law at the University of Leipzig. He does research in Public International, European and Human Rights Law with special focus on Methodology.
The following analysis questions the common reliance on international law to advocate for the protection of migrants’ life in the Mediterranean Sea. Most supporters of the protection of migrants’ life in the Mediterranean Sea affirm that European States should adopt humanitarian measures not (only) on ethical or political grounds, but rather to comply with their international obligations. A legal-dogmatic study of the international law in force, however, reveals the limits of the norms protecting human life at sea. The present analysis therefore argues that international law does not guarantee a plain safeguard of migrants’ life. Hence, pleas to international law should not replace considerations of politics and ethics.
This post focuses on three controversial issues of international law of the sea:1. Right and duty to disembarkation. While the respective provisions dealing with ships in distress clearly set up a duty to rescue people in danger at sea, they leave mostly unresolved the question of what to do with those who have been rescued. The post argues that the obligation to tolerate disembarkation is still highly controversial. 2. Aiding and abetting Libya’s human rights violations. The current European migration policy seems to prefer rescue at sea by North African states through the extension of so-called SAR-zones. As the EU and its member states are providing financial and logistical support to the Libyan coastguard this blog post will further ask if such support constitutes aiding or abetting in the commission of internationally wrongful acts pursuant to article 16 of the International Law Commission’s Draft articles on Responsibility of States for Internationally Wrongful Acts (2001). 3. Rescue operations and prosecution. As private rescue organisations are currently facing prosecution it is further asked if rescue operations at sea constitute aiding and abetting of unauthorised entry.
An obligation to give access to people rescued at sea?
The dispute on private maritime rescue operations in the Mediterranean primarily revolves around the question whether the obligation to rescue at sea, laid down in article 98 of the 1998 UN Convention on the Law of the Sea (UNCLOS) and the associated treaties, contains the obligation of the coastal state (which are mostly European, in the case here considered) to tolerate the entry and the disembarkation of migrants rescued by private operators in the Libyan Search-and-Rescue-Zone. It is worth to remark that the legal existence of a Libyan SAR-zone is still controversial because SAR has been unilaterally declared by Libya but not yet acknowledged by the States parties to the SAR convention as required by its article 2.1.4.
The principal obligation to rescue persons in distress at sea is generally unchallenged and applies to all ships at sea, no matter whether the vessels belong to a state or to private entities. According to this rule, any master of a ship who becomes aware of a situation of distress at sea, be it through a rescue centre, another ship or by its own perception, is obliged to rescue people. This obligation applies regardless of the maritime status of the sea, i.e. on the high seas as well as in the territorial sea or the coastal waters of a state.
According to section 3.1.9 of the annex to the International Convention on Maritime Search and Rescue and section 1.1 of Regulation V/33 of the International Convention for the Safety of Life at Sea, the rescued individuals must be taken to a “place of safety” within a reasonable time. The non-binding Maritime Safety Committee’s Guidelines on the Treatment of Persons in Distress at Sea MSC.167(78) specify when a location might be considered a place of safety. Pursuant to these guidelines, a place of safety is a place where rescue operations can be considered to be completed. It is also a place where the lives of survivors are no longer in danger and where their basic human needs (such as food, shelter and medical treatment) can be met. It is also a place from which arrangements can be made to transport the survivors to their destination. Thus, a “place of safety” might in principle be on board of a vessel which complies with these requirements. However, this does not imply, per se, that the master of a ship has the right of access to the territory of coastal states, and that coastal states have a corresponding duty to allow the port entrance and the disembarkation of the rescued people. In particular, this conclusion is even contradicted by the travaux préparatoires to V/33 of the 1974 Convention for the Safety of Life at Sea (‘SOLAS’), during which a Norwegian proposal to give the master of a ship providing rescue a legal right to hand over rescued persons in a port of his choice – either the next suitable port or the next port on due course – was refused. Thus, member States were fully aware of the potential failure of the obligation to rescue at sea during the event of the amendments to the SOLAS Convention. As such, it must be regarded as a deliberate omission of the contracting states.
Furthermore, such a right of the master of a ship cannot be inferred from subsequent state practice, since the obligation to tolerate entry and disembarkation is highly disputed, especially amongst coastal states like Italy, which can be regarded as specially affected states. According to the accepted methods of treaty interpretation, it is often not clear how a right to port entry and disembarkation can be legally substantiated, especially since European ports are rarely geographically the closest to the places of distress. This does not mean that such a duty of European coastal states is not politically or morally desirable, but rather that an international norm obligating coastal states to disembark rescued people at sea stands on shaky grounds. A common counterargument is that rescued people cannot be brought back to Libya due to human rights infringement of non-refoulement, but that does not logically imply the duty to access the territory of coastal states[SM1] ..
On the alleged complicity of coastal states in human rights abuses
It has been recently claimed that the EU’s support to the Libyan coast guard leads to the responsibility of European states in human rights abuses perpetrated in Libya. Nevertheless, the European Council recently confirmed that the EU would increase its logistical and educational support for the Libyan coastguard. The training support provided by EUNAVFOR MED Operation SOPHIA is aimed at enabling the Libyan coastguard to rescue at sea. According to the report on the human rights situation of migrants and refugees in Libya by the United Nations Support Mission to Libya (UNSMIL), refugees and migrants in Libya are facing arbitrary detention, torture, sexual violence, forced labour and killing. The EU’s support for the Libyan coastguard may therefore be considered as aiding or abetting in the commission of an internationally wrongful act. The responsibility of a state in connection with the act of another state is dealt by article 16 of the draft articles on the Responsibilities of States for International Wrongful Acts (ASR) and requires, among other things, that there must be a nexus between the contribution and the principal wrongful act. It is still controversial whether the subjective element merely requires knowledge of the wrongful act or if it requires that the aid or abetting is given with a view to facilitating the commission of the wrongful act. It is not disputed, however, that not every contribution to the principal act establishes the responsibility of the aiding and abetting state, but only one which actually promotes or substantially facilitates the wrongful act of the principal. Whether this condition is fulfilled is a question of fact. Thus, it needs to be proven that the training and support of the Libyan coastguard makes a substantial contribution to the human rights violations on refugees and migrants and that the human rights violations are facilitated by the support of the EU or its member states. This could be challenged, because the migrants rescued at sea by the Libyan coastguard could possibly be (or should be) protected from the human rights violations by the Libyan militias and smugglers. As far as the Libyan government’s own human rights violations are concerned, these consist above all in the fact that the Libyan government does not sufficiently fulfil its human rights duties. The human rights charge against Libya therefore consists primarily in an omission to protect migrants from abuses (see page 55 et seq. of the report). To what extent this omission against the backdrop of the armed conflict in Libya and the fact that numerous migrants are afraid to report abuse and rape by militias and smugglers to the Libyan authorities, can be supported by the EU’s training support needs to be further elaborated. Thus, it could be asked how the inadequate protection of migrants in Libya against ill-treatment and torture by private militias is facilitated or promoted in a substantial way by the EU’s or the member states’ support for the Libyan coastguard, and against the backdrop that these human rights violations probably take place prior in time to the sea rescue when the migrants are still in the hands of the smugglers. After all, it can be doubted whether it can be assumed that there is a substantial link between the assistance and the principal acts which is constitutive for responsibility pursuant to article 16 ASR.
Rescue operations and the crime of smuggling
Criminal provisions tackling trafficking and unauthorised entry have their roots in the Palermo Protocol and in European Union law (Directive 2002/90/EC). The fact that article 31 of the Geneva Convention relating to the Status of Refugees prohibits the punishment of the refugee for the principal offence (unauthorised entry) does not preclude a priori the punishment of the aider and abettor of the unauthorised entry. In this respect, the prohibition of imposing penalties under article 31 of the Geneva Convention merely constitutes a personal ground for setting aside personal liability of the refugee and does not affect the unlawfulness of the unauthorised or illegal entry as such and hence the possibility of participating in the unauthorised or illegal entry into the territory. In addition, any contribution can be considered as illegal which facilitates the illegal entry into the national territory without permission, whereby the humanitarian motivation of the aider and abettor is actually irrelevant for the classification of the contribution as facilitation. If anything, the motives are generally used to determine the mens rea of the aider and abettor’s intention and does not eliminate his intention and knowledge as such. Criminal liability is generally not waived or justified because the perpetrator invokes humanitarian convictions to justify his or her contribution. Generally, freedom of belief does not confer a positive right to unilaterally correct decisions or omissions of the legislator. According to article 1 para 2 of Directive 2002/90/EC, the Member States may decide not to impose sanctions. However, the decision to punish falls into the discretion of the EU member states. At most, a justification for the contribution could be based on a conflict of duties or on the basis of necessity, both leading to impunity of the aider and abettor (the former justification was applied in the case of Cap Anamur pursuant to article 51 of the Italian Criminal Code based on the assumption that there is an obligation to rescue at sea). However, a conflict of duties requires a conflict between the duty to act and the duty to refrain. The private rescuers at sea would therefore have to be obliged to enter the respective coastal waters. Such a specific duty of the private rescuers to enter a certain territory cannot, however, be conclusively inferred from the relevant sources of international maritime law (see above), especially since individuals cannot violate article 33 para. 1 of the Geneva Convention because they are not bound by that Convention nor by article 3 of the European Convention on Human Rights. It could therefore be challenged that there is a real conflict of duties. This does not mean, however, that it would not be possible to imagine cases in which things would be different. If the rescuers mistakenly belief to be obliged and thus have felt into error, it could be challenged that this error was unavoidable for them, since governmental officials at least the Italian ones clarified their point on that issue. Aiding and abetting could also be justified by necessity, too. However, such a justification presupposes that the danger or risk to be prevented cannot be prevented in any other way than by the offence which is at issue. In particular, it could be stated that medical care and the provision of nutrition and water on board the private rescue vessel could be considered an alternative to the illegal entry of foreign territory. In recent decisions on a rule 39 request, the ECtHR rejected to grant the master of a vessel the right to disembark the rescued people in Italy, although measures under rule 39 do not anticipate subsequent decisions on the admissibility or merits of cases before it. The European Court, however, affirmed that essential care must be guaranteed to individuals in necessity. This decision has been recently confirmed by the ECtHR. After all, it is by no means clear that private rescue operations at sea do not constitute facilitation of unauthorised entry at all.
The present analysis shows that international law does
not guarantee a plain safeguard of migrants’ life. Advocates of migrants’
rights should raise ethical and political arguments, rather than relying on
normative precepts which appear to be overestimated.
 SAR-zones do not constitute maritime zones established under international law pursuant to UNCLOS. Depending on the location of the ship or boat concerned (territorial sea, EEZ or high seas), they are thus subject to the legal regime of UNCLOS.
[SM1]This raises further counterarguments on the compliance of Tunisia with refugee law, I would just cut this reference unless you intend to tackle this counterargument too.