The Mediterranean lacks a European mission against human trafficking. EU NAVFOR’s Operation IRINI (2020) aims to combat arms smuggling to Libya; the main objective is to enforce an arms embargo. The naval vessels involved are of course still obliged under international law to rescue people at risk at sea, but these ships do not actively search for boat migrants as was the case under Operation Sophia (2015-2020).
As a commercial ship, if you come to the rescue early, you risk being convicted of collaborating in human trafficking activities. However, if you wait too long to respond to a request for help, you risk being blamed for negligence, with all the consequences thereof. Meanwhile, the reluctance of some southern EU member states to support rescue operations and provide a safe haven for disembarkation creates a difficult situation for merchant shipping. The SOLAS requirement for the least possible delay for the assisting vessel is being flouted.
Libya has an actively operating – and sometimes gun-toting – coastguard with its own MRCC for its state controlled coastal areas. This coastguard was established with EU funding and is supported by EU countries. However, the country itself has no safe status. Shipowners commissioned for a rescue in the Libyan SAR area find themselves caught between the frameworks of the SAR Convention and the obligations of the UN Refugee Convention.
The SAR Convention, just like SOLAS, puts MRCCs in charge of rescues at sea, and the Refugee Convention requires that rescued people disembark in a safe location. However, while EU (and other) countries accept and support the Libyan coastguard and the Libyan SAR area, and some member states even have bilateral agreements with Libya, they do not categorise Libya as a safe location. It is therefore not clear to merchant shipping how to comply with all the conventions in that area.
The preferred solution
European governments cannot look away while merchant shipping carries out rescue operations. Moreover, these rescue operations are inadequately supported by member states according to the requirements of the SAR and SOLAS conventions and the UN Refugee Convention.
In the short term, ships conducting SAR operations should be assigned a safe haven as soon as possible by a recognised MRCC where disembarkation of migrants can take place quickly with full cooperation of the authorities. This also usually ensures compliance with SOLAS requirements, within the framework of the SAR Convention.
In the current situation in the Libyan SAR area, this could mean deviating from the framework of the SAR Convention or SOLAS regulations. A shipowner or captain who is forced to make their own well-considered decision due to lack of conclusive regulations should be supported by EU member states regardless of the outcome.
The KVNR believes it is up to the joint European member states to find a good long-term approach to the migrant issue that takes into account humanitarian rights, the disproportionate pressure on member states bordering the Mediterranean, and the rights and obligations of the commercial shipping sector. Also, as many boat migrants as possible should be spotted and rescued in time by (government) organisations that are trained and equipped to do so.
UN calls on EU member states to reform SAR process
The United Nations issued a statement in June 2021, confirming that shipping companies should not be obliged to follow instructions to return rescued migrants to an unsafe place. IOM and UNHCR call on member states to coordinate actions so that merchant vessels rescuing people in distress are quickly authorised to disembark in a safe place, preventing lives from being endangered.
In addition, on 26 May 2021, UN Human Rights Commissioner Michelle Bachelet called on the Libyan government and the EU and its member states to urgently reform their current SAR policies and practices in the central Mediterranean Sea. They are also called upon to support the work of humanitarian NGOs and develop a common and human rights-based approach for the timely disembarkation of all people rescued at sea.
This call is linked to the publication of the UN report ‘Lethal Disregard: Search and rescue and the protection of migrants in the central Mediterranean Sea’ in May 2021.