Ideological battles in the Med
By Marc Tilley. Originally published on June 30, 2019 by The Times of Malta on its website.
Exactly one year ago, the German rescue vessel MV Lifeline was detained by Maltese authorities on the initial charge of illegally entering Maltese territorial waters, prior to disembarking 234 rescued migrants, after a week of uncertainty. Twelve...
Exactly one year ago, the German rescue vessel MV Lifeline was detained by Maltese authorities on the initial charge of illegally entering Maltese territorial waters, prior to disembarking 234 rescued migrants, after a week of uncertainty.
Twelve months later, Sea-Watch 3 wilfully chose to enter Italian territorial waters west of Lampedusa, in a brave but uncertain move designed to oppose Matteo Salvini’s new Immigration and Security Decree.
This action followed the rescue of 52 migrants and a subsequent two-week standoff with Italian authorities over their urgent need for disembarkation. At the time of writing, 40 people remain stranded on board off Lampedusa.
Both these events were partly calculated to encourage solidarity and pressure in pursuit of a common European solution. As long as Member States retain sovereignty over their borders and asylum, there will continue to be little appetite within the European Council for a fair distribution of responsibility beyond already-faltering ad hoc efforts. The MV Lifeline disembarkation triggered the first European Commission-negotiated relocation arrangement which has now become the default European response to NGO ships. In Sea-Watch’s case, it was deemed important to publicly undermine the increasingly draconian measures imposed on human rights defenders by Salvini. The overlapping legal frameworks which apply to this situation are ambiguous and even occasionally in conflict with each other. International maritime conventions were not initially drawn up with a view to encroaching on migration and asylum issues. Specific disembarkation arrangements, exactly what constitutes “distress” or a “place of safety” remain hotly contested issues. The maritime legal instruments which enshrine the obligation to rescue offer far less conviction on the question of disembarkation, merely offering non-binding guidelines on what constitutes a “place of safety” and encouraging all parties to prioritise broad responsibilities such as the principle of “non-refoulement”.
It is essential we separate the political debate from saving lives at sea
On the question of exactly where a rescue ship should disembark, however, the law is remarkably deficient and erratically supplemented with contributions from other international originations.
For instance, Malta and Italy are signatories to different amendments of the SOLAS Convention: Malta theoretically subscribes to the practical view that any rescues should disembark at the nearest safe port. This is largely due to Malta’s small size and relatively large area of responsibility. Italy, having disembarked the overwhelming majority of Mediterranean migrants, takes a differing view: disembarkations are the responsibility of the coordinating state only.
To demonstrate how complex a playing field this is, both Italy and Malta would be legally correct to abide by their respective interpretation, even if a boat is then left stranded. As these rescues took place in Libya’s Search and Rescue Region under coordination of the Libyan Joint Rescue Coordination Centre, responsibility falls on Tripoli to coordinate disembarkation to a place of safety where the “lives and freedoms of asylum seekers would not be threatened”, as this would breach the 1951 Refugee Convention.
The duty to rescue at sea has been enshrined in a legal system which then fails to answer the important question of what happens next in this situation. Captain Carola Rackete from Se Watch was unfairly left to fend for herself in the search of a safe port. Italy, France and Malta all rejected Sea-Watch’s request to disembark, while the Netherlands (as flag state) remains unresponsive. The historical relationship between Italy and Libya’s SRR, along with proximity, made Lampedusa a prime candidate. A number of self-declared “solidarity-cities” across Germany have offered to accommodate those onboard but ad hoc relocations take months and are not legally binding. Not a single Mediterranean relocation effort has yet been completed on the originally agreed terms, leaving Malta and Italy understandably suspicious of any arrangement which first requires disembarking in their harbours.
However, to suggest frontline Mediterranean States have no regard for migrants at sea is also inaccurate. More than 140 people were rescued and disembarked in Malta and Lampedusa last week, under the eyes of the Sea-Watch 3 crew, hinting at a more personal dispute between activists and governments. For Sea-Watch, this is a question of 52 people. For Italy, a continuation of the 600,000 who have successfully crossed the Central Mediterranean to date. A more reasonable approach would recognise that robust mechanisms exist under government competence to determine the protection status of new arrivals into Europe, and who is eligible to stay. Most NGOs have no desire to intrude on this process.
In this increasingly hostile and tightening humanitarian space, it is essential that we separate the political debate from saving lives at sea. The only effective way to do this is by removing the driving motivation behind civil society intervention. Criminalisation has demonstrably not worked and will not work as long as volunteers have the moral conviction to risk their freedom for others. Perhaps now is the time for cooperation – whether a State-sanctioned rescue mission or reliable disembarkation system. By defending an age-old seafaring tradition and legal obligation, European civil society has demonstrated catastrophic failings of solidarity and community values for which we are now a scapegoat.
The Mediterranean has become an ideological battleground, distracting from the value of human life with the politics of fear and division. SAR NGOs cannot, and should not, be held accountable for failings in EU asylum capacity or responsibility-sharing.
Only by upholding the rule and spirit of international maritime law can Europe reclaim the Union’s founding values and adequately protect the most vulnerable people from appalling and shameful rhetoric.
Marc Tilley is a humanitarian adviser.
