London. UK. Early last week, the Office of Dunja Mijatović, the Council of Europe Commissioner for Human Rights, published A distress call for human rights, a comprehensive follow-up report to the 2019 recommendations drafted in Lives saved. Rights protected. Bridging the protection gap for refugees and migrants in the Mediterranean. Human Rights at Sea has reviewed and today, highlights its recommendations in support.
The timing of this report reflects the rapid shift in EU migration policy following the launch of the European Commissions’ Migration Pact in September, and increasing scrutiny facing the European Border and Coast Agency, FRONTEX, in light of substantial allegations of the Agency’s involvement in Fundamental Rights violations at the EU’s external border.
The 2019 report Lives saved. Rights protected. Bridging the protection gap for refugees and migrants in the Mediterranean proposes 35 wide-ranging Recommendations to the EU and Member States, reflecting the substandard human rights conditions facing not only migrants, asylum-seekers and refugees, but also the Human Rights Defenders and humanitarian workers providing them with lifesaving assistance.
Two years later, however, little progress has been made with regard to the implementation of the Commissioner’s Recommendations, and accusations of recurring human rights violations remain alarmingly frequent.
This Report aims to track the state-of-play of the Central Mediterranean situation and raise awareness across the European Community of the harmful impact of current policy strategies, while also presenting a progressive roadmap towards a humane and human rights-compliant approach to the maritime migration context.
The Human Rights issues and respective proposals raised in the Report can be broadly catergoried into five thematic areas:
Effective search and rescue.
Timely and safe disembarkation of rescued persons.
Co-operation with non-governmental organisations.
Co-operation with third countries.
Safe and legal routes.
Effective search and rescue
Search and Rescue provision for migrants in the Mediterranean largely relies on three possible actors: the commercial shipping fleet, humanitarian civil society organisations and State-deployed assets.
The withdrawal of suitable assets from EUNAVFOR Med Operation Sophia, the dedicated, EU-led military mission, in 2019, and subsequent shift in mandate and location of the mission’s successor, Operation Irini, has been heavily felt. This has left the burden of responsibility on private ships, many of whom are not equipped to assist small, precarious rubber boats, due to their large displacement and high freeboards.
The absence of efficient disembarkation mechanisms has the impact of economically penalising commercial ships who invoke enormous costs as a result of meeting rendering assistance to people in distress.
This leaves the relatively small fleet of civil society search and rescue vessels, funded through donations and largely crewed by volunteers. In response to the work of NGOs, not only in providing assistance, but also monitoring and decrying the humanitarian situation resulting from EU border policy, crew and vessels have been subject to prolonged campaigns of State-led obstruction; through both criminal and administrative procedures.
Human Rights at Sea stands with the Commissioner in recommending the deployment of a State-led maritime humanitarian response to the growing number of deaths on Mediterranean shores.
Timely and safe disembarkation of rescued persons
The disembarkation of rescued people, particularly those deemed additionally vulnerable, is an essential component of the maritime rescue chain, enabling access to medical services, a safe environment, and asylum procedures where necessary. Despite repeated calls at every level for a reliable, fair and efficient disembarkation mechanism, this remains a major challenge in migratory distress situations, with prolonged standoffs at sea now becoming the norm.
Although time-limited and proportionate derogations can be lawful under exceptional circumstances, such as the outbreak of COVID-19, such instances cannot, and should not, be used to justify the abdication of Coastal States’ international obligations, nor can Italy and Malta unilaterally declare their ports indefinitely and exclusively unsafe for the disembarkation of rescued migrants.
The 2019 Italian Security Decree, put forward by Italian Home Affairs Minister Matteo Salvini, outlawed the entry, transit or docking in territorial waters of any vessels involved in the rescue of migrants. This was the first instance of a European State formally reneging on international maritime obligations by passing domestic legislation.
This Decree was tested a number of times in Court, then eventually amended in October 2020, but remains in place, disincentivising disembarkation with the threat of potential criminalisation. This has directly contributed to prolonged standoffs between Italy and Malta, including the nearly 6-week stand-off in autumn 2020 for 27 rescued migrants onboard the Maersk Etienne oil tanker.
Human Rights at Sea endorses the Commissioner’s condemnation of State practices designed to disincentivise, through actions and omissions, the rescue and disembarkation of people in distress according to the application of international maritime law, and the opportunistic application of oppressive migration policy under the guise of COVID-19 restrictions.
Co-operation with non-governmental organisations
Although Search and Rescue remains a statutory competence of coastal States, the intentional and targeted withdrawal of SAR capacities by European Mediterranean governments has cynically transferred this humanitarian burden to civil society organisations.
The coordination of SAR activity, designation of a place of safety, medical evacuation, vulnerability referrals and access to asylum procedures (where necessary) require timely and effective cooperation with State authorities. NGOs consistently report that the competent Rescue Coordination Centres refuse to take their distress calls or requests for disembarkation, and arbitrarily detain vessels with discriminatory port controls not applied to other private or commercial shipping, in order to obstruct their mission.
Human Rights at Sea supports the Commissioner in calling for States to ensure their laws do not criminalise search and rescue operations, or otherwise sanction or encourage non-assistance by shipmasters in a way that undermines the legal and moral obligations to render assistance to those in distress.
Co-operation with third countries
Cooperation with third countries, particularly countries of migrants’ origin or transit, has long-been a contentious issue, with human rights groups arguing that development cooperation cannot become a fig-leaf for outsourcing migration management, particularly in countries where the risk of human rights violations, and the likelihood of eligible asylum applicants, is high.
The EU has formed a number of such partnerships across North Africa, Turkey and a number of sub-Saharan countries with the objective of capacity-building security institutions and strengthening borders to prevent the movement of migrants towards the EU.
The 2019 renewal of Italy’s Memorandum of Understanding with Libya, along with Malta’s efforts to establish a bilateral cooperation mechanism with the Libyan Coast Guard, both fail to provide any specific human rights safeguards or remedies for migrants returned to Libya under the instruction and support of European authorities and subsequently harmed in the widely-reported system of detention and abuse which has characterised many migrants’ and refugees’ experiences in Libya over the past years.
Human Rights at Sea echoes the Commissioner’s call for the EU and Member States to make any co-operation with third countries conditional to fundamental rights safeguards, with termination clauses in the case of serious violations.
Safe and legal routes
Dangerous, irregular maritime crossings to Europe will continue as long as the situation in neighbouring countries remains unsafe or unstable. For many migrants trapped in Northern Libya, maritime migration remains the only means of escape from the cycle of detention, abuse and conflict pushing people into boats.
Regulating arrivals, and reducing the risks of deadly crossings, can be anticipated by Member States and the EU through a system of humanitarian corridors, or humanitarian visas, made available in countries of origin. The Commissioner notes the progress made with the advent of Church-led initiatives in Italy, and family reunification provisions, but restrictions imposed during the COVID-19 pandemic have stalled, or even reversed, much of this work.
Human Rights at Sea joins the Commissioner in urgently calling on States to open and expand meaningful access to complementary admission pathways and resettlement for those in need of international protection.