ACT Alliance EU Blog Post: 7 Aug 2018
The European Union has been facing many external and internal conflicts and controversies due to its recent issues with search and rescue (SAR) operations on the Mediterranean, and with how the rescued third country nationals are allocated among the EU Member States (EUMSs).
Despite the complexity of international maritime law, the obligation of any shipmaster to provide assistance to persons in distress at sea and the obligation of coastal states to establish search and rescue centres are not debatable. However, despite the international framework, these obligations have been reinterpreted and re-evaluated from the perspective of the EU’s declared aim to keep arrival numbers low and increase removal of persons out of the EU who do not need international protection. Such returns have proven difficult, expensive and lengthy, with a multi-level legal process containing appeals and delayed procedures. Therefore reducing numbers by keeping people out of EU territory has become a trend, using mechanisms like the EU-Turkey Statement from March 2016 or the Memorandum of Understanding (MoU) with Libya from 2017.
As the jurisdiction of States, party to the European Convention on Human Rights (all EUMSs), and their non-refoulement and prohibition of collective expulsion obligations under the jurisdiction do not only arise from territorial jurisdiction but also from de facto control, EU Member States have been careful when sending their coast guard or other state agents to the high seas to perform SAR operations.
Due to Italy’s cooperation with Libya (MoU), the Libyan coast guard has been active in search and rescue using equipment and know-how from Italy and the EU, receiving instructions from the MRCC (Maritime Rescue Co-ordination Centre) from Rome but taking the rescued persons back to the Libyan coast.
Libya is a country with tremendous internal problems, its internationally acknowledged central government has limited territorial jurisdiction. Its coast guard is allegedly staffed in part by local criminal gangs and paramilitary groups, smugglers and traffickers. The local camps where intercepted persons are taken operate under inhumane, degrading conditions. Slave trade, rape and other severe human rights violations regularly occur.
By its indirect involvement in these operations, Italy is responsible for refoulement by proxy, and through its financial involvement, the EU is also contributing. The above-mentioned aim of keeping third country nationals out of EU territory and jurisdiction has led to a number of ‘creative’ suggestions from various bodies – European Commission, Council of the European Union, some EUMSs. Among these suggestions are the recent Council Conclusions proposing disembarkation platforms outside the EU territory, a ‘smart’ reinterpretation of the UNHCR-IOM proposal of the regional disembarkation mechanism inside the EU, and the ongoing criminalization of SAR NGOs like SOS Mediterranee, Proactiva Open Arms or Sea Watch. The latter resulting in a rising percentage of deaths at sea despite the reducing number of arrivals to ‘before 2015’ levels.
All these actions are contrary to logic, international law, human decency and even the EU’s and its Member States’ long-term self-interest. Research shows that open borders, circular migration, multi-cultural societies and global markets benefit both Europe and third countries but there is short-term political gain to be had by feeding a crisis-mood related to a perceived uncontrollable migratory pressure changing Western civilization. It brings more votes. Not taking into consideration that it costs lives, African and Middle Eastern lives…
 United Nations Convention on the Law of the Sea
 International Convention of maritime search and rescue
 The internationally binding norm not to send persons back to countries where they may face persecution. – 1951 Convention Relating to the Status of Refugee
 Since the European Court of Human Rights’ (ECtHR) judgement of Hirsi Jamaa and others v Italy