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Search and Rescue

Priority: Boat migrants: Libyan bottleneck

Dutch Shipowners:

“Shipowners and seafarers know better than anyone else how far from home and emergency services you are while at sea. And, in the event of an emergency, you become dependent on the few nearby who can help you. Therefore, there is no question that a crew is committed to helping those in need.”

However, shipowners commissioned to carry out a rescue in the Libyan SAR area finds themselves caught between the frameworks of the SAR Convention and the obligations of the UN Refugee Convention.

KVNR - Cathelijne Bouwkamp - Maritime Security & International Law _web
Contact

 

Cathelijne Bouwkamp
Maritime law and Security

+31 10 2176 279
+31 6 4168 5465
bouwkamp@kvnr.nl

KVNR - Nathan Habers - Public Relations, Crisisco├Ârdinatie en Geopolitiek - web
Press inquiries

 

Nathan Habers
Public Relations


+31 10 2176 264
habers@kvnr.nl

Context

The international framework for maritime search and rescue (SAR) operations is laid down in the SAR Convention. Worldwide, all sea areas are comprehensively divided into SAR areas (IMO, in force 1985). A captain’s SAR rights and obligations are stated in the globally applicable UN conventions UNCLOS and SOLAS. Each SAR area borders a state and has a so-called Maritime Rescue and Coordination Centre (MRCC). Under the SAR Convention, the MRCC has control over rescue operations within that area.

Responding to a request for help from an MRCC
A report of people in distress at sea arrives at the responsible MRCC through those involved or other MRCCs. The MRCC in charge then issues an order to a ship relatively close to the people in distress to assess the situation. What type of vessels are involved plays a part in this; the nearest vessel is not always given the assignment. After a report from the ship, the MRCC (i.e. not the ship) decides what action is needed. Sometimes a ship is instructed to monitor the situation until the coastguard arrives. And sometimes it is instructed to take people on board. This may be the case if the endangered vessel is at risk of sinking. In general, this SAR system works well in practice.

The role of commercial shipping
Seafarers try to rescue people in distress, sometimes under harsh conditions. If they have to take people on board, they do so immediately. All persons taken on board receive the best possible care, food and shelter. However, a merchant vessel is not equipped for rescues of groups of people. These ships do not have adequate facilities (food, medicines, accommodation, security) to keep large groups of people on board for a long time. Furthermore, carrying out an SAR mission involves a lot of stress for crew members. Sailing to the designated coordinates without knowing what situation and how many people they will find, searching for the boat or perhaps people in the water; adults, children, dead or alive. People may be pregnant, sick and infectious, fearful, aggressive, or have terrorist motives.

In short, a rescue of boat migrants is an enervating process for which a seafarer has not been trained. In addition, there is a risk that the boat migrants may not be satisfied with the course of action and this may create an unsafe situation on board, and also, therefore, for the crew. Consequently, it is of utmost importance that a relatively small crew of a commercial ship is able to hand over responsibility for a group of migrants to professional authorities in a safe port as soon as possible.

The challenge: the Libyan bottleneck

People regularly want to reach Europe by crossing the Mediterranean Sea from Africa in boats; these people are known as ‘boat migrants’. This includes both migrants and refugees (mixed migration). The crossing is usually arranged by human traffickers who do not consider the safety and chances of survival of these people.

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

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.

State of play - 12 January 2023

On 25 November 2022, European migration ministers decided to reconvene the EC Contact Group on Migration at relatively short notice. This Contact Group focuses on the migration situation in the Mediterranean Sea.

On 1 June 2021, the KVNR, together with ECSA and several MEPs including Sophie in 't Veld of Renew Europe, organised the webinar ‘Commercial shipping and search & rescue in the Mediterranean’ on migration and the impact on, and position of, the shipping industry. The keynote speaker was Monique Pariat, director-general of the European Commission Migration and Home Affairs. During the webinar, she pledged to make efforts to have ECSA join this Contact Group in which member states are working on this issue. The webinar can be viewed here.

With EU member states planning to reconvene the Contact Group in 2023, this commitment will again be followed up by ECSA.