If you asked a sailor what they would do if a person went overboard, their answer would without a doubt be: try to save them. I was once told by a skipper that in order to get a sailing boat license you need to pass an exam which includes a rescue at sea. It is maritime law; the law of the sea with all its conventions, that imposes on all the duty to rescue a person in distress at sea. Thus, all search and rescue operations in international waters are supported by a clear legal framework and long-standing maritime principles.
However, this fundamental principle has become a thorn in the side of European policy makers and politicians.
Since the start of the war in Libya in 2011, the country has been in a constant state of instability, leading people to flee, attempting to cross the central Mediterranean Sea in unseaworthy boats.
The law of the sea is well-thought-out and leaves few grey areas. Naval assets in the central Mediterranean used to work together in harmony under this framework. Until June 2018, the main authority coordinating rescue operations in the central Mediterranean was the Rome Maritime Rescue Coordination Centre (MRCC). It signalled distress calls to any asset present at sea, whether it was a civil search and rescue ship, a merchant vessel or the navy, and assigned “places of safety” to disembark the rescued. European navy vessels and aircraft also participated in the European Operation Sophia.
Nonetheless, following the formation of a new government in Italy in June 2018, the coordination of rescues from Italy stopped and Italian ports were closed. The coordinating authority of the area of the central Mediterranean, defined as the Libyan Search & Rescue (SAR) zone, is now the 2017-established Libyan Joint Rescue Coordination Centre (JRCC). Vessels rescuing people in this area need to coordinate with the Libyan authorities, but it has frequently proved to be an ineffective replacement.
Leaving the capabilities of the Libyan authorities aside, the functioning of a Libyan JRCC nonetheless creates a paradox. This is due to the assignment of a place of safety in Libya which according to international humanitarian charters and conventions cannot be considered as such since it cannot guarantee neither safety or human rights.
As previously mentioned, the maritime law is clear. The SOLAS and the UNCLOS conventions state that flag states are under a duty to require shipmasters to render assistance to persons in distress at sea without delay and that the survivors have to be disembarked in a place where their safety is no longer jeopardised, as soon as reasonably practicable and with minimum further deviation from the ship’s intended voyage. This means that any vessel carrying out a rescue operation needs to be assigned a place of safety (PoS) by the competent coordinating authority. A PoS is not only a land, but a place where human rights and safety can be guaranteed.
Therefore, just as shipmasters have an obligation to provide assistance at sea, states have an obligation to coordinate and cooperate so that shipmasters are released from their burden and that people rescued at sea are disembarked in a place of safety as soon as possible.
We currently we face a legislative and political dead-end in the central Mediterranean. Ships rescuing people in distress at sea and requesting a PoS from the maritime coordination centres to disembark them are faced with two options:
1. The Libyan authorities coordinate the rescue and instruct the vessel to disembark in Libya which civil vessels and also many merchant ships refuse to do since it violates international humanitarian law;
2. The Italian or Maltese MRCCs won’t give a PoS for disembarkation. This results in the vessel waiting at sea until other EU states have negotiated who will take in the survivors.
This politically driven impasse in the central Mediterranean has unfortunately resulted in considerable loss of life at sea. Moreover, it has added to the suffering of already traumatised people, even once rescued, subjecting them to further uncertainty. It will not be an easy task to resolve this situation, but the solution should come as a coordinated European Union action in which international maritime law is respected.
Author: Avra Katerina Fialas has been working with the European NGO SOS MEDITERRANEE as a communications officer since October 2018, first on land, and now on the ship the Ocean Viking. The views expressed are her own and do not necessarily represent the views of SOS MEDITERRANEE.