589
1 INTRODUCTION
In the 1980s, computer software for geospatial data
(better known as GIS software) had been on the
market for more than a decade, but hardware,
especially “high‐resolution” graphic screens were
veryexpensiveandmostsoftwareveryspecialized.It
was still early days in the marine geospatial world,
and much would happen before geospatial data
wouldbecomemainstream.
On 3 October 2013, a trawler carrying over 500
migrantsfromLibyatoItalysankofftheItalianisland
of Lampedusa. The boat – that had sailed from
Misrata in Libya – carried mainly migra nts from
Eritrea, Somalia and Ghana.
After a journey of two
days,thevesselbegantakingonwaterwhenitsmotor
stoppedworking.Somepassengerssetfiretoapiece
of material to try to attract the attention of passing
ships.However,thefirespreadtotherestoftheboat,
creating a panic. As the migrants
all moved to one
side, the boat capsized. So close to reaching
Lampedusa,themigrants–ofwhichmanycouldnot
swim – were tossed into the sea. Although an
emergency response involving the Italian Coast
Guard resulted in the rescue of 155 survivors, the
totalnumberofdeadwas
reportedasmorethan360.
[1]
Reportedly, the migrants had each paid at least
$3,000totheLibyan, SomaliandSudanesesmugglers
beforemakingtheseacrossingfromLibya.Women–
whowereunabletopaytheamountofmoney–were
saidtohavebeenrapedandmenwhorebelled
were
tiedupandtortured.Theallegedcaptainoftheboat,
a 35‐year‐old Tunisian named as Khaled B
ENSALAM,
wasarrestedundersuspicionofbeingresponsiblefor
the sinking and charged with manslaughter. On 8
November,aSomaliandaPalestinianmanwerealso
arrested under suspicion of having been among the
smugglersthatorganizedthevoyage.[2]
On11October2013,asecondshipwreckoccurred
120 kilometres from
Lampedusa, near Malta. The
boat, carrying over 200 migrants from Syria and
Palestine, capsizedwhen people onboard movedto
onesideofthevesselastheytriedtogettheattention
of a passing aircraft. The rescue operation was
coordinated by the Maltese authorities, with the
assistance of the
Italian Coast Guard. At least 34
individuals were confirmed dead. Most survivors
The Lampedusa Disaster: How to Prevent Further Loss
of Life at Sea?
J
.Coppens
M
aritimeInstitute,GhentUniversity,Belgium
ABSTRACT:Lampedusa– anItalianislandbarely70milesfromnorthernAfrica and100milesfromMalta
–
hasbecomeagatewaytoEuropeformigrants.Insomeseasons,boatsfilledwithasylumseekersarrivealmost
daily.However,yearly,hundreds ofpeopledietryingtocrosstheMediterraneanSea.Thispaperwilldealwith
theobligationsofStatestowardsseabornemigrants,thequestionofwhysomanypeopledie
nearLampedusa
andthepossiblesolutionsinordertopreventfurtherlossoflifeatsea.
http://www.transnav.eu
the International Journal
on Marine Navigation
and Safety of Sea Transportation
Volume 7
Number 4
December 2013
DOI:10.12716/1001.07.04.15
590
were taken to Malta. The Maltese Prime Minister of
Malta,JosephM
USCAT,complainedaboutthelackof
solidarityamongEuropeancountriesontheproblem
ofseabornemigration.Hestated:“Asthingsstand we
are building a cemetery within our Mediterranean Sea”.
[3] Also Ban K
I‐MOON, the UN Secretary‐General,
calledontheinternationalcommunity‘asawhole’to
takeactiontopreventsuchtragediesinthefuture.[4]
Lampedusa is an Italian island barely 70 miles
from northern Africa and 100 miles from Malta.
Therefore, it has become a gateway to Europe for
migrants.In
someseasons,boatsfilledwithmigrants
and asylum seekers arrive almost daily. Between
January and September 2013, more than 31.000
migrants arrived in the EU using the Central
Mediterranean route, mainly via Sicily and
Lampedusa,butalso–althoughtoalesserextent–on
the Coasts of Calabria, Puglia
and Malta. The main
nationalitiesincludeEritreans,Somalisandothersub‐
Saharan Africans, as well as Syrian nationals. The
migratorypressureoverthesummermonthsof2013
wascomparabletothesameperiodin2011.[5]
ButwhydosomanypeopledienearLampedusa
and what can we do to
prevent this? In order to
answerthesequestions,wewillfirsttakealookatthe
internationalobligationsofStatestowardsmigrantsat
sea, with regard to rendering assistance and
disembarkation. Afterwards, thespecific situation of
Lampedusawillbedealtwith.Finally,somepossible
solutionswillbeputforward.
2
DUTYTORENDERASSISTANCE
2.1 Requestforassistanceneeded?
It is a legal obligation for shipmasters and States
undercustomary internationallaw,as wellas under
Articles 58(2) and 98(1) Law of the Sea Convention
(LOSC) to render assistance to persons in danger of
being lostand to proceed with all
possible speed to
the rescue of persons in distress [6]. Article 98(1)
LOSC states: “Every State shall require the master of a
shipflyingitsflag,insofarashecan dosowithoutserious
dangertotheship,thecreworthepassengers:(a)torender
assistance to
any person found at sea in danger of being
lost; (b) to proceed with all possible speedto the rescue of
personsindistress,ifinformedoftheirneed of assistance,
insofarassuchactionmayreasonablybeexpectedofhim;
(c)after a collision, to render assistance
to the other ship,
itscrewanditspassengersand,wherepossible, to inform
the other ship of the name of his own ship, its port of
registry and the nearest port at which it will call.”
According to Article 98(2) LOSC, where
circumstances so require, coastal States have to
cooperatewithneighbouringStates.
The actual distress phase is defined by the 1979
International Convention on Maritime Search and
Rescue(SARConvention)[7]–atreatymonitoredby
the International Maritime Organization (IMO) that
imputesmulti‐Statecoordinationofsearchandrescue
systems – as: “A situation wherein there is
reasonable
certaintythat aperson,avesselorothercraftisthreatened
by grave and imminent danger and requires immediate
assistance.”[8]. Whenexactlya situationisidentified
as requiring immediate assistance, can be different
accordingtowhichStateishandlingthesituation.For
someStatesthevesselmustreally
beonthepointof
sinking [9]. However, the International Law
Commission (ILC) stated that – although a situation
ofdistressmayatmostincludeasituationofserious
danger–itisnotnecessarilyonethatjeopardizesthe
life of the persons concerned [10]. In contrast, for
other States it
is sufficient for the vessel to be
unseaworthy [11].
MORENO‐LAX even suggests that
unseaworthinessperseentailsdistress.[12]
Council Decision 2010/252 [13] adopted
additional guidelines that must be respected by
European Member States during search and rescue
situationsatseawhenoperatingwithinaFrontex–
the European Agency for the Management of
Operational Cooperation at the External Borders
of
theMemberStatesoftheEuropeanUnion[14]–joint
operation at sea. Although the European Court of
Justice(ECJ)annulledCouncilDecision2010/252,and
thus also the guidelines therein, the effects of the
Council Decision have to be maintained until a new
act can be adopted in accordance with
ordinary
legislativeprocedures.[15]
When deciding whether a vessel is in distress or
not,searchandrescue units should take allrelevant
elementsintoaccount, inparticular: “(a) the existence
ofarequestforassistance;(b)theseaworthinessoftheship
and the likelihood that the ship will not reach
its final
destination;(c)thenumberofpassengersinrelationtothe
typeof ship(overloading);(d) theavailabilityof necessary
supplies (fuel, water, food, etc.) to reach a shore; (e) the
presenceofqualifiedcrewandcommandoftheship;(f)the
availability of safety, navigation and communication
equipment;
(g)thepresenceofpassengersinurgentneed of
medicalassistance; (h)thepresenceofdeceasedpassengers;
(i)thepresenceofpregnantwomenorchildren;and(j)the
weatherandseaconditions.”[16]
Thus– according to these guidelines–although
unseaworthiness is certainly an element to take into
consideration
when assessing the situation, it does
not automatically imply a distress situation. As
everysituationisdifferent,the factwhetherpersons
at sea are in distress or not will dependent on the
specificcircumstances.Therefore,anassessmentcan
onlybemadeonacase‐by‐casebasis.Althoughthe
definition of
distress is quite vague, this allows
shipmastersandStatestotakeallrelevantelements
intoaccount.Theirmarginofappreciationtodecide
whetherpersonsareindistressornotisregardedas
being essential. However, one element that is
indisputable, is that the existence of an emergency
should not be
exclusively dependent on or
determinedbyanactualrequestforassistance.[17]
Nevertheless,somecountriesstillrequirearequest
for assistance. For example, the Armed Forces of
Malta(AFM)–responsiblefordealingwiththesearch
andrescueoperations[18]–arebeingaccusedofnot
fulfilling their duty, by
for example only helping
persons who are actually requesting assistance [19].
Nevertheless,therearealsomigra ntboatswhorefuse
to be rescued by Malta, because they want to go to
Italy.Forexample,on9July2012,aboat–reportedly
carrying50EritreansandSomalis–wasatsea.They
refused to be rescued by Maltese military forces. In
2012,UNHCRreportedthatofallthemigrantvessels
591
intercepted by Maltese authorities, the majority
electednottoberescuedandcontinuedtoItaly.[20]
2.2 Self‐induceddistresssituations
Due to increased interception measures at sea,
smugglersareoftensendingmigrantstonavigatethe
seaontheirown,ratherthanriskbeingcaughtwith
the passengers. Also,
because of the likelihood that
thevesselswillnotreturn,smugglersareutilizingless
expensivematerialstobuildtheboats.Withnoneed
to transport fuel for a return trip, migrants are
makinguseofthisextraspacebyloadingtheirboats
withmorepeople,resultinginmoredrownings[21].
Illegal
migrants are often transported on ships that
are not properly manned, equipped or licensed for
carryingpassengersoninternationalvoyagesandthat
States should take steps to eliminate these unsafe
practices [22]. For example, every year tens of
thousands of Somalis and Ethiopians – often fleeing
violence, human rights abuses
and poverty in the
HornofAfrica–paysmugglerstoferrythemacross
theGulfofAden toYemen.Many never makeit,as
the boats capsize or smugglers beat some of the
passengers to death, force them overboard, or
disembarkpeopletoofarfromshores[23].
Smugglers are generally
well informed about
States’ protection obligations in case of distress
situationsandthustheyacttoexploitthem.Theyare
abletoinstructmigrantswhattodouponinterception
to increase their chances of gaining entry into and
remaining in countries of destination. For instance,
States have been faced with
situations of people
sabotaging their own vessels to force authorities to
carryoutrescues [24].Astheconceptofdistressisnot
qualified, it also includes ‘self‐induced’ distress as a
type of distress in need of rescue [25]. P
UGH argues
thatagroupofdeterminedpeoplewhohavesetout
onariskyvoyageinasubstandardvesselmaynotbe
easilyrecognizedas being in a conditionofdistress.
Therefore,thisargumentcannotbesupported.
Moreover, so‐called ‘rescuers’ are in fact
smugglers. On 9 September 2012, Italian
authorities
questioned survivor reports that the boat on which
they were sailing from Tunisia actually sank or
capsized near Lampedusa on 7 September.Italian
authorities raised the possibility that the survivors
were intentionally landed on the small island of
Lampione–approximately20kmwestofLampedusa
– by a smuggler’s
‘mother ship’ and that the
smugglersthen returnedtoTunisia. Some of the 56
survivorswhowererescuedfromLampionereported
thattheirboatsankandtheywereforcedtoswimto
the island. However, Italian authorities did not find
sufficientdebris,bodies,orotherevidencethatwould
indicate that
their boat sank. Although two bodies
wererecovered,thelocationsoftherecoveredbodies
arenotconsistentwiththelocationwherethemigrant
boat is reported to have sunk [26]. These kind of
practicescanresultincriminalizationofseafarers,as
almost happened in the aforementioned case of the
CapAnamur
.Thefearofcriminalizationbythosewho
gototherescueofboatscarryingmigrantsis oneof
thereasons whycommercialvessels failtogo to the
rescueofpersonsindistressatsea[27].
3 DISEMBARKATIONOFRESCUEDPERSONS
3.1 Nodisembarkationduty
Neither treaty law nor
customary international law
requiresStatestoletrescuedpersonsdisembark onto
their territory. Both the International Convention on
Safety of Life at Sea (SOLAS Convention) [28] – a
treaty seeking to ensure protection of passengers
aboard ships in distress through the prevention of
situationsof distress– andthe SARConvention
[29]
only provide that States must arrange for the
disembarkationofpersonsrescuedatseaassoonas
reasonablypracticable[30].
As a result, persons rescued at sea can spend
weeksonashipatseabeforeaStateallowsthemto
go ashore. The case of the Marine I
provides an
example. On 30 January 2007, the Spanish Coast
GuardreceivedadistresscallfromthevesselMarine
I.Itwasallegedthatover300migrantsfromGuinea
wereonboard.AlthoughtheMarineIwaswithinthe
SenegaleseSearchandRescueRegion(SRR),Senegal
requested Spain to proceed
with a rescue operation,
claimingthatSenegaldidnothavethepropermeans
to assist. Because the Mauritanian port of
Nouadhibou was closest to the emergency, Senegal
also informed Mauritania of the situation. On 4
February,aSpanishmaritimerescuetugreachedthe
Marine I and provided immediate relief by handing
out supplies of water and food. The Spanish
government also commenced negotiations with
Senegal and Mauritania on the fate of the migrants.
On 12 February (two weeks after the distress call),
Spain, Senegal and Mauritania finally reached an
agreement regarding the passengers. It was
reportedlyagreedthatSpain wouldpay
€650,000,in
return for Mauritania allowing the passengers to
disembark.Repatriationcommencedthedayafterthe
migrantshaddisembarked.Guineaagreedtoreadmit
thirty‐five passengers, all of African origin [31]. In
total, Spain reported 18,000 irregular arrivals by sea
from West Africa that year [32]. The fact that Spain
was
preparedtopayasmuchas€650,000toprevent
thedisembarkationof300migrantsshowsthatsome
States are reluctant to allow disembarkation of
rescuedpersonsontotheirterritory.Consequently,in
practicesomeshipmasterswillignoremigrantsatsea
becausetheyknowthattheirentranceintoportswill
berefused.
3.2 Deliverytoaplaceofsafety
In the SAR Convention, rescue is described as “an
operation to retrieve persons in distress, provide for their
initialmedicalorotherneeds,anddeliverthemtoaplaceof
safety.”[33].AlthoughtheSARConventionstatesthat
rescue implies that persons in distress
have to be
deliveredtoaplace of safety[34],itdoesnot define
whataplaceofsafetyis.The2004IMOGuidelineson
theTreatmentofPersonsRescuedatSea state thata
place of safety can be defined as a location where
rescueoperationsareconsideredto
terminate,where
the survivors’ safety or life is no longer threatened,
basichumanneeds(suchasfood,shelterandmedical
needs) can be met and transportation arrangements
can be made for the survivors’ next or final
destination [35]. Disembarkation of asylum‐seekers
592
recovered at sea, in territories where their lives and
freedom would be threatened, must be avoided [36]
in order to prevent the violation of the non‐
refoulementprinciple[37].Thegovernmentincharge
ofthe SRRinwhichthe survivorswererecovered is
heldresponsibleforprovidingaplaceof
safetyonits
ownterritoryorensuringthatsuchaplaceofsafetyis
grantedinanothercountry[38].Althoughanassisting
ship may only serve as a temporary place of safety
[39], there is still no actual duty for States to
disembarkthepersonsrescued[40].
However, Malta does
not accept the 2004 IMO
Guidelines[41].Therefore,accordingtoMaltathereis
asafeplaceintermsofsearchandrescueandthereis
a safe place in terms of humanitarian law [42]. The
2004 Guidelines, however, do state that a place of
safetyhastofulfilhumanitarianrequirementstoo.
On
5August2013,theLiberian‐registeredtankerSalamis
rescued 102 migrants aboard a damaged dinghy
about45 nm off Libya and 140 nm from Malta. The
crew responded to an alert from Rome’s Maritime
Rescue Co‐ordination Centre (MRCC) to help the
migrants. After the rescue – co‐ordinated
by
authorities in Rome – the Salamis headed for Malta,
the destination for its cargo of gasoil. However,
Malteseauthoritiestoldtheshipmastertoproceedto
theclosestportofsafetyinLibya.AlthoughtheAFM
was supplying food and water to the migrants, the
shipwasrefusedentrancetoMaltese
waters.TheEU
statedthat –asthe migrants includedfourpregnant
women, one injured woman who needed immediate
hospitalcareandafive‐month‐oldinfant–itwasthe
humanitariandutyoftheMalteseauthoritiestoallow
thesepersonstodisembark. Sendingtheshipbackto
Libyawould
havebeencontrarytointernationallaw
[43].ThisiscertainlytrueaftertheHirsiCase,where
the European Court of Human Rights decided that
bringing migrants back to Libya constituted a
violationofArticle3 of theEuropeanConvention of
HumanRights[44]becauseincasutheapplicantshad
been
exposedto:(1)theriskofill‐treatmentinLibya;
and(2)ofrepatriationtoSomaliaorEritrea[45].
4 LAMPEDUSA:AUNIQUEPROBLEM
The Italian island of Lampedusa is both part of the
Maltese and the Italian Search and Rescue Region
(SRR). According to the LOSC and the SAR
Convention,
coastal States shall establish adequate
and effective search‐and‐rescue (SAR) services (for
example, through the creation of a Rescue Co‐
ordination Centre (RCC)) and, where circumstances
sorequire,cooperatewithneighbouringStatesforthis
purpose[46].StatesmustensurethatsufficientSRRs
are established within each sea area. These
regions
shouldbecontiguousand–asfaraspracticable–not
overlap [47]. Each SRR shall be established by
agreement among parties concerned [48]. The
delimitation of SRRs is not related to and shall not
prejudice the delimitation of any boundary between
States[49]. Parties are required to ensure the
closest
practicable coordination between maritime and
aeronautical services [50]. The International
Aeronautical and Maritime Search and Rescue
Manual (IAMSAR Manual) – which was jointly
published by IMO and the International Civil
AviationOrganization(ICAO) – provides guidelines
for a common aviation and maritime approach to
organizingandproviding searchand
rescueservices
[51].
The SAR Convention aims to create an
international system for coordinating rescue
operations and therefore State parties are invited to
conclude SAR agreements with neighbouring States
to regulate and coordinate SAR operations and
services in the agreed maritime zone [52]. Such
agreement do not only technically and operatively
implement the obligation laid down in Article 98(2)
LOSC, they also diminish the risk of non‐rescue
incidents. Next to this, they can offer an economic
advantage to the extent that the contracting parties
cansharecostsarisingfromorganizingandcarrying
out SAR operations [53]. However, for the moment,
severalStatesintheMediterraneanhaveforexample
unilaterally declared a SRR, resulting in overlaps,
such as the area around Lampedusa. This often
results in delays when deciding who is responsible,
thusjeopardizingthelivesofmigrantsindistress.
Figure1. Maritime Search and Rescue Regions –
MediterraneanWest[54]
Forexample,inApril2009,theTurkishownedand
Panamanian flagged ship M/V Pinar E rescued 142
African migrants off the coast of Lampedusa.The
shipandtherescuedmigrantswerethesubjectofan
ensuingstand‐offbetweenItalyandMaltaregarding
whowouldreceivethemigrants.WhileMaltainsisted
that the M/V Pinar E would take the migrants to
Lampedusabecauseitwasthenearestporttowhere
the stricken boats were found, Italy maintained that
thepersonswererescuedintheMaltaseSRRandthus
fell under Malta’s responsibility. Although Italy
finally agreed to allow disembarkation in Sicily,
the
decisionwasmadeexclusivelyinconsiderationofthe
painful humanitarian emergency aboard the cargo
ship. Italy made clear that its acceptance of the
migrants must not in any way be understood as a
precedentnorasarecognitionofMalta’sreasonsfor
refusingthem[55].Thisisoneofthe
manyincidents
that highlight the lack of cooperation and
coordination between SAR services of these two
States.
On 6 April 2011, Malta informed the Italian
MaritimeRescueCoordinationCentreofthepresence
ofaboatindistress,45milesfromtheItalianislandof
Lampedusa. As Maltese patrol boats were
temporarily unavailable, Italian search and rescue
assetswereshippedtothearea.Theboat–whichhad
departed from the Libyan port of Zuara – carried
593
some 300 persons who had been fleeing the north
coastofAfricainsearchofabetterlife.Normally,the
type of vessel was only capable of holding a
maximum of 40 people. Moreover, the engine was
severely damaged, which made it impossible to
manoeuvre the boat. Over 250 migrants
were lost
aftertheirvesselcapsizedduetoflooding.Eventually,
only 52 persons could be saved by the Italian Coast
Guard[56].
On 9 November 2011, 44 people – mostly sub‐
Saharans – were rescued by the Italian navy ship
Foscari after two days of sending out distress calls
from
asatellitephoneintheMediterraneanSea.The
delayinrescuingtheboatledtohugeriskstothelives
ofthepersonsindistress.Risksforexampleincluded
drowning, dehydration and exposure. After the
rescue,themigrantsweretransportedtoSicily,notto
Lampedusa or Malta which were the two
closest
ports. UNHCR spokesman Adrian E
DWARDS stated
thatUNHCRwasgratefulthattheItaliannavy took
this initiative despite the fact that the boat was in
Maltese SRR [57]. In response, the AFM and the
Maltese SAR authorities both rejected what they
characterized as the “impression conveyed” by the
UNHCR spokesperson that Maltese SAR authorities
abdicated from their responsibilities and did not
cooperate with the relevant Italian authorities. The
AFMstatement–asreportedbythenewspaperTimes
of Malta – outlines in detail the Maltese response to
thedistresscallfromthemigrantboat.TheAFMsaid
that the decision for the Foscari to take
the rescued
migrantstoanItalianportinSicilywastheresultof
ItalianinsistencethatLampedusadoesnotrepresenta
place of safety for the disembarkation of migrants.
According to Malta, Lampedusa did represent the
nearestplaceofsafetyundertherelevantlegalregime
applicablewiththeMaltaSRR.
Therefore,thepersons
shouldhavebeendisembarkedhere[58].
5 POSSIBLESOLUTIONSTOPREVENTLOSSOF
LIFE
5.1 CooperationbetweenStates
According to Article 98(2) LOSC, where
circumstances so require, coastal States have to
cooperatewithneighbouringStates.Whilediscussing
the obligation to cooperate in suppressing piracy,
G
UILFOYLEnotes:“Whileadutytocooperatetothefullest
possible extent may seem a strong obligation, the
international community has not agreed that it has any
specificminimum content.Identifyingabreachofadutyto
cooperate is notoriously difficult.”[59] It is clear that a
number of loopholes seriously
impair the
effectivenessofthedutytocooperate[60].Firstofall,
in public international law there is no general
customary law‐based obligation for States to
cooperate. Therefore, duties to cooperate are treaty‐
based and as such the cooperative relationship is
being artificially created. Secondly, provisions on
cooperative conduct are
often not manifestly
demonstrably based on reciprocity or mutuality of
benefit.Thirdly,thewordingsoftheobligationleaves
it unclear as to the specific conduct required in
fulfilment of that obligation. Therefore, the proof of
such a breach would be very difficult. Fourthly,
treatiesthatincludeanobligationtocooperate,often
includeamarginofappreciation.Forexample,Article
98(2) LOSC asks coastal States to cooperate “where
circumstancessorequire”.Lastly,theeffectivenessofa
cooperation duty can also be impaired by non‐
cooperation.Aparticularproblemisunilateralactions
by States. For example, powerful States may turn to
unilateralism
whentheydecidethattheymayachieve
their foreign policy goals by unilateral action rather
thancooperation.Astheinternationalsystemisbased
uponsovereignequalityofStates,thesystemisinfact
characterizedbygrossinequalitiesinpowerthatarea
structural obstacle to cooperation and thus
encourages powerful
States “to go it alone” [61]. On
the one hand, there are a growing number of
obligations to cooperate in international law, for
exampletosuppressdrugtraffickingbysea[62]orto
prevent the proliferation of weapons of mass
destruction and their transport by sea [63]. On the
other
hand, there exists an unsatisfactory degree of
implementation of these duties because of non‐
compliance[64].
Oninternationallevel, the International Maritime
Organization (IMO) took the initiative to help
draftingaMemorandumofUnderstanding(MoU)on
concerted procedures relating to the disembarkation
of persons rescued at sea [65]. In March
2010, the
United States stated that the discussions between
Mediterranean countries concerning rescue and
disembarkation of migrants at sea is based on a
regional problem requiring a regional solution.
However, Italy, Malta and Spain expressed their
disappointment that other countries seemingly did
notrecognizethattheproblemwasmuchwiderthan
simply a regional one. Other parts of the world are
also confronted with similar difficulties and, even
more importantly, ships of all flags are currently
involvedintheresultingrescueoperations.Therefore,
theIMOSecretary ‐Generalproposed tofirstdevelop
a pilot project for a regional solution in the
Mediterranean.
Second,ifthisprojectworks,itcould
beappliedinotherpartsoftheworld[66].
One of the primary concerns of the IMO is the
integrity of the search and rescue and,
consequentially, the safety of life at sea regime [67].
Therefore, the IMO wants to prevent incidents –
which
causeloss of life at sea – from recurring [68].
Ontheonehand,thesystemofrescuingmigrantsin
theMediterraneanBasinhastobeimproved.Onthe
other hand, these persons also have to be
disembarked at a place of safety in accordance with
the SAR and SOLAS
Conventions [69]. The ultimate
goal here will be the development of a Regional
Agreement in the form of a MoU on concerted
proceduresrelatingtothedisembarkationofpersons
rescuedatsea[70].AMoUisawell‐acceptedtypeof
legalinstrumentininternationallawandpracticeand
it is
being identified as “an informal but nevertheless
legal agreement” between two or more parties [71].
WhetherthisMoUismeanttobebindingisnotclear
atthemoment.However,asoftlawagreementwould
notnecessarilybeanegativefactor.
It was considered beneficial – in order to
make
significant progress towards finalizing the draft
Regional MoU – to hold informal consultations
amonginterestedpartiestoagreeonsomeofthemore
contentious issues and associated draft texts before
594
organizing the next regional formal meeting.
Accordingly,informalconsultationswereheldatIMO
Headquarterson21February2012.Someofthemost
contentious aspects were discussed and agreements
reachedonsensitivesubjectsandthedrafttextofthe
Regional MoU was improved accordingly [72].
However,aftersome discussion, taking into
account
that the work on this matter was still in progress, it
wasdecidedtoextendthetargetcompletionyear[73].
Thedevelopmentofasoftlawframeworkhasalready
been successfully applied to address gaps in
internationallawinthepast[74].B
ARNESstatesthat–
consistentwiththegeneral trend towardstheuseof
soft law instruments – new legal initiatives
concerningmigrantsatseaaremostlikelytotakethe
formofnon‐bindingmeasures[75].
On European level, Frontex organizes joint
operations at sea. This co‐operation can help saving
lives.
Nevertheless, among States there is still some
discussion as where to disembark rescued persons.
Council Decision 2010/252 [76], supplementing the
Schengen Borders Code, states in its Guidelines that
regardingdisembarkation,priorityshouldbegivento
the third country from where the ship carrying the
personsdepartedorthroughtheterritorial
watersor
SRR of which that ship transited. If this is not
possible, priority should be given to disembarkation
in the Member State hosting the surveillance
operation at sea [77]. The operational plan, used
during a joint operation at sea, should spell out the
modalities for the disembarkation of the persons
rescued. Nevertheless, when not specified in the
operational plan, the mission’s host country carries
the ultimate responsibility. Malta strongly opposes
these guidelines and as a result stopped hosting
Frontex operations. Also the new Commission
proposalof2013putstheultimateburdenonthehost
State [78]. The Mediterranean countries already
objected this new proposal. Cyprus, Greece, Italy,
Malta,FranceandSpainhavetakenthepositionthat
thereisnoneedforfurtherregulationspertainingto
rescueatseaorpost‐rescueplacesofdisembarkation
since other international laws already deal ‘amply’
withthematters[79].
With respect to financial arrangements, we
can
think,forexample,ofcapacity‐buildingforRCCs,as
wellasforprocessingandreceptioncentres.TheEU
isalreadyfundingprojects toimprovethe capacities
ofEUMemberStatesinthecaseofthearrivaloflarge
groupsofirregulararrivals,e.g.,thestrengtheningof
reception capacity in
Lampedusa. Likewise, the
Communication on Strengthened Practical
Cooperation, issued by the Commission in February
2006, proposed to set up rapid‐reaction migration
unitstobetterrespondtosuddeninfluxesofirregular
migrants[80].
5.2 Theuseofnewtechnologies
One of the problems is the isolated nature of the
ocean.As
aresult,itisdifficultto provea failureof
search and rescue obligations. Nevertheless, satellite
images for example could provide for proof. The
European Union Satellite Centre (EUSC) gathers a
greatdealofdataandpicturesacrosstheglobe[81].
EUSCalreadystatedthataccesstosatelliteimageryof
the area could be a valuable tool to identify the
locationofshipsascertainvesselsarelargeenoughto
be spotted and possibly identified from such data
[82].
In July 2012, the AFM expressed interest in
benefittingfromaEuropeanUnion‐sponsoredproject
involving the deployment of ‘drones’ – Unmanned
AerialVehicles(UAVs)–toassistinmigrantpatrols
at sea. While the AFM is fully involved in the
development of the system, it is however not yet
participating in the testing of such drones [83].
Frontex’ResearchandDevelopmentUnitiscurrently
engagedinastudytoidentifymore
costefficientand
operational effective solutions for aerial border
surveillance, in particular Unmanned Aircraft
Systems (UAS’s) with Optional Piloted Vehicles
(OPVs)thatcouldbeusedduringjointoperationsat
sea[84].TheUnitedStatesisalreadyusing‘Predator
drones’tomonitorlandandseaborders.However,
serious questions have been raised
about the
effectiveness of surveillance drones operating over
theseaas–untilnow–thedroneshavehadlimited
success in for example spotting drug runners in the
openocean[85]. The use of dronesforlandandsea
border surveillance is contemplated by in the EU
Commission’s proposal
on the establishment of the
European Border Surveillance System (EUROSUR)
[86]. The main purpose of EUROSUR is to improve
the situational awareness and reaction capability at
theexternalbordersoftheMemberStatesandofthe
EuropeanUnion[87].Theplannedsurveillanceofthe
Mediterranean–usingUAVs,satellitesandshipboard
monitoring systems – could aid in the rescue of
refugees shipwrecked on the open seas [88].
However, EUROSUR could cover up a lack of
substance.Forexample,maritimerescueservicesare
notpartofEUROSURandborderguardsdonotshare
information with them [89]. Moreover, EUROSUR
should be adapted
to meet the specific needs that
asylumseekersmayhave.Forexample,theexchange
of personal data with third countries should be
prohibited,asthisexchangemayjeopardizeboththe
safetyandprotectionofasylumseekersandrefugees,
andtheirdataprotectionrights[90].
6 CONCLUSION
Underinternationallaw,itis
clearthatthereexistsa
duty of rendering assistance regardless of an actual
request for help. Next to this, also self‐induced
distresssituationsrequireassistance.However,dueto
overlapsofSRRs,therearedelaysindecidingwhois
responsible,thusjeopardizingthelivesofmigrantsin
distress. This is
exactly what happens near
Lampedusa. A possible solution would be
strengthened cooperation between States. However,
asStatescannotbeobligedtocooperate,cooperation
efforts are postponed, such as the on concerted
proceduresrelatingtothedisembarkationofpersons
rescued at sea. Moreover, as there is no
disembarkation duty under international law,
initiativesintroducingsuchaduty–suchasnewEU
rulesondisembarkationwithin Frontexoperations–
are being criticized by coastal States. It is clear that
Statesarenotwillingtoacceptadisembarkationduty.
595
WithinEurope,thisisnotsurprizing.TheDublin
II Regulation is regarded as unfavourable for
Mediterranean coastal States, as the Member State
responsible for an asylum claim will be the State
through which the asylum seeker first entered the
European Union [91]. D
E BLOUW believes that the
modificationoftheDublinRegulationisthefirstand
most important step to eradicating human rights
abuses in Southern Europe as this could lessen the
immigration burden on coastal Mediterranean
Member States [92]. To help Malta to cope with the
migration problem, EUREMA (European Relocation
Malta) –
a pilot project for intra‐EU re‐allocation of
beneficiariesofprotectionfromMalta–waslaunched
inJuly2009andco‐funded by the EU. Its objectives
are the implementation of the principle of solidarity
among states, the identification of resettlement
solutionsforpeopleinneedandtheimprovementof
the situation for those who remain in Malta.
Nevertheless, this project is not a solution to the
negativeimpactoftheDublinIIRegulation[93].
Next to cooperation, new technologies could be
used not only to prove failure of search and rescue
obligations,butalsotoassistinmigrantpatrols
atsea.
Weshould howeverbearinmind that States should
be encouraged to share the burden, for example by
engaging in resettlement and readmission
agreements. When States know they can share the
burden after disembarkation, they will be less
reluctant to accept a duty to disembark sea ‐borne
migrants.Normally
thepolitical,socio‐economicand
financial costs of asylum have to be carried by one
State,namely,theStateofdisembarkation.However,
duetoburden‐sharingagreementsthiswillnotbethe
case.
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Yemen. However, the boat’s engine broke down and
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[27]PACE launched aninquiry in2011 to
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[28]International Convention for the Safety of Life at Sea
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[29]International Convention on Maritime Search and
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June1985)405UNTS97[SARConvention].
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[31]Wouters, Kees & Den Heijer, Maarten, “The Marine I
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[33]
SARConvention,AnnexChapter1para.1.3.2.
[34]SARConvention,AnnexChapter1para.1.3.2.
[35]MSC,“GuidelinesontheTreatmentofPersonsRescued
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[36]MSC,“GuidelinesontheTreatmentofPersonsRescued
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[37]ConventionrelatingtotheStatusofRefugees(adopted
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137 [Refugee Convention]. Article 33 of the Refugee
Convention states that: “No Contracting State shall
expel or return (ʺrefoulerʺ) a refugee in any manner
whatsoeverto
thefrontiersofterritorieswherehislifeor
freedom would be threatened on account of his race,
religion, nationality, membership of a particular social
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applicabletorefugeesbutalsotoallasylum‐seekers.See
for example: Bethlehem, Daniel & Lauterpacht, Elihu,
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refoulement:Opinion”, in Feller,Erika,Türk, Volker&
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[39]MSC,“GuidelinesontheTreatmentofPersonsRescued
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6.13.
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[42]Klepp,Silja,“ADoubleBind:MaltaandtheRescueof
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[50]
SARConvention,AnnexChapter2para.2.4.
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[74]
Betts illustrates this by giving the example of the soft
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supplementing the Schengen Borders Code as regards
thesurveillanceoftheseaexternal bordersinthecontext
of the operational cooperation coordinated by
the
European Agency for the Management of Operational
Cooperation at the External Borders, OJ L 111/20 of 4
May2010.
[77]Council Decision (EU) No. 2010/252 of 26 April 2010
supplementing the Schengen Borders Code as regards
thesurveillanceoftheseaexternal bordersinthecontext
of the operational
cooperation coordinated by the
European Agency for the Management of Operational
Cooperation at the External Borders, OJ L 111/20 of 4
May2010,AnnexPartIIpara.2.1.
[78]Proposal for a Regulation of the European Parliament
andoftheCouncilestablishingrulesforthesurveillance
oftheexternalseaborders
inthecontextofoperational
cooperation coordinated by the European Agency for
the Management of Operational Cooperation at the
ExternalBordersoftheMembersStatesoftheEuropean
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[79]CounciloftheEuropeanUnion,MediterraneanPosition
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[80]Communication
from the Commission to the Council
andtheEuropeanParliamentonStrengthenedPractical
Cooperation – New Structures, New Approaches:
Improving the Quality of Decision Making in the
Common European Asylum System, COM (2006) 67
final.
[81]ForinformationontheEuropeanUnionSatelliteCentre
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[82]PACE, “Lives Lost in
the Mediterranean Sea: Who is
Responsible?”, Report of the Committee on Migration,
Refugees and Displaced Persons (29 March 2012),
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online:
<http://assembly.coe.int/CommitteeDocs/2012/20120329_
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[83]Malta Today, “AFM ‘interested’ in EU‐sponsored
drones for migrant surveillance at sea” (29 July 2012),
available online: <http://www.maltatoday.com.mt/en/
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EU‐
sponsored‐drones‐for‐migrant‐surveillance‐at‐sea‐
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[84]Frontex, “Programme of Work 2012” (2012), 105,
available online:
<http://www.frontex.europa.eu/assets/About_Frontex/G
overnance_documents/Work_programme/2012/frontex_
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[85]LosAngelesTimes,“U.S.plansmoredroneflightsover
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