Mourning the Dead While Securitizing the Sea

On 16 June, just two days after the catastrophic Pylos shipwreck in the Mediterranean with probably hundreds of deaths, the EU Commission organised the 4^th meeting on a European framework for search and rescue in the Mediterranean. The framework is supposed to address „the specific challenges stemming from the ongoing migratory movements to the EU by sea, including those deriving from the increased number and types of actors involved in SAR operations“. While the alleged aim of the framework is to improve cooperation between Member States and other actors, under the guise of ‘improving cooperation with other actors’, the milestones (‘deliverables’) identified in the draft roadmap for the adoption of the framework risk to further impede civil search and rescue operations. Civil society organisations active in Search and Rescue operations may face extensive administrative burdens in registering ships and in the execution of search and rescue operations.

Shrinking space for civil search and rescue operations

Every shipmaster is obliged to render assistance to any person found in distress at sea.¹⁾ Following this general obligation to rescue, in recent years search and rescue operations have been conducted by civil society actors to fill the gaps left by states. NGOs monitor distress situations using aircraft, establish additional support for people in distress and conduct rescue operations themselves.

Attempts by state authorities to obstruct the rescue efforts of civil society actors are not new. Since 2017, the EU Fundamental Rights Agency has monitored how states use administrative and criminal proceedings against vessels operated by NGOs to block them from conducting their search and rescue activities. Recent tactics by states prevent NGOs to register their boats, prevent them from interfering in distress situations, delay the disembarkation of rescued individuals at ports of safety, criminalise crew members and hamper NGO activities in the region altogether.²⁾

So far, the measures against civil society actors have been introduced mostly by states individually. The initiative of the European Commission for a European framework for search and rescue in the Mediterranean aims at standardisation. In this way, the framework risks to normalise through standardisation national measures that impede civil search and rescue operations.

The EU Roadmap towards a ‘European Framework for Operational Cooperation on Search and Rescue in the Central Mediterranean Sea’

The European Contact Group on Search and Rescue, an informal group consisting of the EU Commission, and experts from the different Schengen member states and associated states, met to discuss existing laws and policies on private vessels conducting search and rescue operations, among other topics. The roadmap, which was leaked prior to the meeting, outlines nine milestones (‘deliverables’) towards establishing a new framework.

The general aim of the Contact Group is to facilitate and reinforce information exchange. Cooperation among member states and with other actors such as civil society organisations is to be strengthened. The envisaged Framework for Operational Cooperation further aims to standardise national rules and practices in line with the existing international legal framework on search and rescue and on the protection of refugees and migrants. However, while enhanced cooperation seems to be a fitting agenda to improve rescue operations at sea, some of the outlined ‘deliverables’ point in another direction.

Extensive data collection by shipmasters

Deliverable 5 of the roadmap envisions an agreement on the type of information shipmasters may be asked to collect about Search and Rescue (‘SAR’) events and rescued persons. International law already sufficiently details which information shipmasters must provide to national authorities when private ships are involved in rescue activities.³⁾ The question arises:  why does the contact group seek to expand the legal basis for the collection of personal data? The probable answer is  that rescuing lives could be coupled with migration control. Yet making migration control part of rescue operations contradicts international law. According to the SAR Convention, assistance must be provided for any person in distress ‘regardless of the nationality or status of such a person or the circumstances in which that person is found’.⁴⁾ The IMO Guidelines specify that ‘[a]ny operations and procedures such as screening and status assessment of rescued persons that go beyond rendering assistance to persons in distress should not be allowed to hinder the provision of such assistance or unduly delay disembarkation of survivors from the assisting ship(s)’.⁵⁾  The obligation to collect data would target not only civil society actors but also merchant vessels that assist in rescues. For them, extensive duties cause further delays, resulting in economic losses.

Italy has recently introduced a decree requiring shipmasters to collect and deliver extensive data to national authorities, including  data relevant to the rescued individuals’ wish to apply for international protection. This sets a worrying example of what may be expected from deliverable 5 of the roadmap.

Obstruction of civil search and rescue by impeding registration and certification

Deliverable 8 stipulates the need for standardisation of registration and certification rules for private vessels. Only a few Member States have legislation that applies exclusively to private ships carrying out SAR activities as their main activity. In those Member States that already have introduced or are about to introduce registration standards for civil SAR vessels, standards do not seem to be based on actual safety concerns but rather serve to hamper the registration and thereby the activities of private SAR vessels.

In the Netherlands, specific safety standards were introduced in 2019, after the Sea-Watch 3, at that time sailing under the Dutch flag, was arrested in Italy for inspections. Remarkably, documents on the legislative procedure reveal that the legislation was not motivated by actual safety concerns but was pushed by the Ministry for Justice and Security and Foreign Affairs – for political reasons.⁶⁾ As a result of this legislation, the Sea-Watch 3 and other NGO ships could no longer sail under the Dutch Flag.

In Germany, the Federal Ministry for Digital and Transport (‘BMDV’) introduced a proposal in February 2023 to amend the German Ship Safety Ordinance (‘Schiffssicherheitsverordnung’). The new proposal builds on an earlier amendment by the former government. Internal communication from the former Ministry revealed that these amendments were designed to hinder German NGOs to register their SAR vessels. The administrative court of Hamburg declared these earlier amendments as incompatible with EU law, following which the amendments remain inapplicable.⁷⁾ While the Ministry argues that the proposal does not serve to hamper civil society search and rescue organisations, the organisations state that under the new proposal, most of the vessels run by civil society actors would need to reduce or halt their rescue operations. Again, the necessity for a more restrictive legal framework is highly questionable. Since 2015, no incidents have occurred where the life of crew members or rescued individuals was endangered. According to civil search and rescue organisations, crew members of civil search and rescue vessels are regularly trained, and their ships are especially equipped for saving lives, exceeding existing and proposed safety standards. The BMDV’s alleged goal to enhance safety at sea can further be questioned since its proposal exempts the German Maritime Search and Rescue Service (‘Deutsche Gesellschaft zur Rettung Schiffbrüchiger’),  which conducts search and rescue operations on behalf of the German government. If the overall goal is to enhance safety, a distinction based on the operator of vessels primarily involved in search and rescue operations is unconvincing.⁸⁾

These examples illustrate that legislative amendments to registration requirements, under the guise of standardisation and safety, often hinder civil society actors from conducting rescue operations. Standardisation is not wrong per se. It may strengthen cooperation and balance the interests between the sovereign flag state over ships flying its flag and the sovereign coastal states where disembarkations of rescued persons take place, as provided for in international law. If standardisation ensured that ships were not repeatedly detained and seized at ports of disembarkation because port states recognised the certificates and inspections by flag states, this would foster rescue operations. However, Deliverable 8 bears the risk of further hampering rescue operations by civil society actors. Any standardisation must be based on actual necessity and oriented towards ensuring safety and guaranteeing the execution of rescue operations, from the registration of a search and rescue vessel to disembarkation at a port of safety.

The EU needs to focus on coordination and cooperation efforts

Given that international law primarily obliges states to coordinate and cooperate in rescue operations and given that states currently do not fulfil these obligations but instead repeatedly violate human rights by adopting push- and pullback practices, EU policy efforts need to focus on these shortcomings. The SAR contact group should therefore discuss how the compliance of states with their search and rescue duties can be increased and how accountability gaps can be closed. Any policy and legal framework adopted must be in line with international law and should focus on saving people in distress. It should be clear that the Law of the Sea and Human Rights require that any legislative measure introduced must be irrespective of who operates the rescue operation, the grounds for distress, or the nationality of the person in distress.