In June 2018, Italy and Malta’s refusal to allow the Aquarius, a rescue vessel of the French NGO SOS Méditerranée with over 600 rescued migrants on board, to disembark in its ports, kicked off a series of incidents following the same pattern. Ships carrying saved migrants are refused entry to the closest ports, opening the stage for days, sometimes weeks, of dispute among European states until they finally agree on the reception. This marks a further escalation of the deterrence policy the Italian government has been engaged in by restricting NGO search and rescue (SAR) operations in the Mediterranean and closely cooperating with the Libyan regime.
In this context, cargo vessels start ignoring their duty of rescuing people in distress because they fear the economic loss of being stuck at sea for weeks and Operation Sophia, the quite modest and the only common European contribution to sea rescue, faces an uncertain future. Last year one out of fourteen attempted crossings ended in death, adding up to more than 2,200 drowned migrants. This year already 200 deaths were counted and Sea Watch 3, the last remaining rescue vessel in the Mediterranean, was allowed disembarkation only after the intervention of the European Court of Human Rights.
Search and rescue in the Mediterranean – a legal grey area?
Following these developments, public awareness of the situation is higher than ever. However, uncertainty remains as to the legal basis of non-governmental sea rescue and the practices of European states. From a general point of view, we can clearly state the obligation under treaty and customary law to save people in distress – a fundamental principle of international maritime law. This duty is binding not only for any boat having notice of people in need of rescue but also for coastal states to use any information they have to perform SAR operations themselves or to delegate this duty to vessels in proximity of the incident.
The situation is less clear regarding the right of European states to refuse entry to vessels with rescued migrants on board. While international law establishes that a ship (and the people on it) sailing under the flag of a certain state is under this state’s jurisdiction, current practice of the European countries suggests uncertainty as to who is responsible for the asylum seekers. In the case of the Diciotti, however, a ship of the Italian coastguard which was blocked in a Sicilian port for nearly a week by Italy’s Interior Minister Salvini, and investigations have been opened for alleged illegal detention.
Finally, interrogations remain as to the Italian practice of cooperating with the Libyan coastguard. From a legal point of view, even if the migrants involved never entered Italian territory, Italy has certain obligations towards them. De jure, because of the Libya agreements which ensure that Italy can be held liable for potential human rights violations committed by the Libyan coastguard. De facto, because only Italy possesses information on migrant vessel incidents, which it selectively passes on to Libya, leaving the migrants thereby at the mercy of Libyan militia.
By forcing the migrants to return back to Libya, Italy violates two principles of human rights conventions it is bound by, namely the prohibition of collective expulsion and the non-refoulement principle banning returns of asylum seekers to states where they risk torture or inhuman treatment. However, these circumstances are part of daily life in Libyan refugee camps.
NGO sea rescue – a “migrant taxi service“?
Another hotly debated issue is the role of NGO rescue operations acting as a “pull factor”, encouraging further migrant departures from North Africa as they increase the chances of a successful journey. Not everyone would go as far as Italy’s Deputy Prime Minister Di Maio (Five-Star Movement) branding NGOs as a “migrant taxi service”. Many people do think though that NGOs bear at least part of the responsibility for the death toll of migrants at sea, an assumption that seems to be confirmed by numbers showing a decrease in departures from Libya as SAR activities in the Mediterranean have also been going down.
However, a detailed look at the data shows that the presence of SAR measures cannot be held liable as a pull factor because the number of migrant crossings started to drop before SAR activities did. In fact, the drop can rather be linked to the start of the cooperation between Italy and Libya, leading to increased action of the Libyan coastguard against migrant smuggling.
Looking even closer at the data, we can see that while irregular arrivals to Italy via the Mediterranean have decreased since the start of the cooperation in 2017, absolute death rates have gone up considerably since Salvini took office and engaged in the deterrence of NGO sea rescue. As a matter of fact, this means that the risk of death is now at the highest rate ever recorded.
In public debates, especially if they have become so emotionally charged like the one on immigration, it is crucial to keep in mind the actual facts. In this case, they show us that indisputable legal obligations of European states are currently breached in a permanent manner. Conformity with the law is the foundation of the European democratic order and should not be disregarded under any pretext.
Moreover, the facts remind us that NGOs cannot be held responsible for rising death rates in the Mediterranean – but rather, the absence of their life-saving activities. Finally, the current situation is proof of the urgent need for the European Union to find a permanent common solution for the reception of asylum seekers. This reformed reception system will have to truly be based on solidarity between the European states and, most importantly, respect the migrants’ right to life and humane treatment.
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