Are Human Rights Hurting Migrants at Sea?

Every year hundreds of thousands of irregular migrants, including asylum seekers and refugees, cross the Mediterranean Sea to enter Europe. More than 200.000 are thought to have crossed in 2014, reaching the coasts of Italy, Greece, Spain, Malta and Cyprus.

The reasons for the crossing are obvious. Some migrants flee conflict and persecution; others simply seek a better life in Europe. Regardless of motivations, crossing is not without perils. The UNHCR estimates that 3.500 lives were lost in 2014 while more than two thousand people have died since 1 January 2015.

After more than 300 migrants drowned near the island of Lampedusa in 2013, the Italian Government established the so-called Operation Mare Nostrum. Mare Nostrum was a humanitarian success. The International Organization for Migration applauded the “heroic work of Italy’s maritime forces”, which rescued some 100.000 people between 2013 and 2014. Despite widespread praise, Mare Nostrum ended in October 2014.

In its place, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (known by the more palatable name Frontex) established operation Triton.

Triton is far less ambitious than Mare Nostrum and does not carry out proactive searches close to Libya’s coast. Instead, Triton focuses on border surveillance. Despite being a joint operation of 21 States, its budget is also much smaller than that of Mare Nostrum (€3m compared to €9m a month).

 Officially, Triton is:

“intended to support the Italian efforts at their request, and does not replace or substitute Italian obligations… in guaranteeing full respect of EU and international obligations in particular when it comes to search and rescue at sea.”

Triton has been criticized for being insufficient. The UN High Commissioner for Refugees, António Guterres, has said that Triton is “woefully inadequate”, warning that it is “inevitable that many more people will die trying to reach… Europe”. As a result of the tragic events of the last few days, where an unprecedented number of migrants perished in the Mediterranean Sea, the High Commissioner urged the EU “to restore a robust rescue-at-sea operation and establish credible legal avenues to reach Europe.”

The large loss of life at Europe’s doorstep raises the question: what obligations do Mediterranean States—or the EU—have to prevent such tragedies? Morally, a strong case can be made. Peter Singer famously argued in Famine, Affluence, and Morality that if it is in our power to prevent something very bad from happening, without sacrificing anything else morally significant, then we are morally obliged to do so. He used the example of a child drowning in a shallow pond. It is fairly easy to apply his argument to a State—or group of States, such as the EU—and the Mediterranean Sea.

In Resolution 1821 (2011) the Parliamentary Assembly of the Council of Europe reminded Member States of  “their obligations under international law, including the European Convention on Human Rights” and other relevant instruments. But the content of those obligations needs to be made clear.

Under Article 98 of the 1982 United Nations Convention on the Law of the Sea, Parties shall require the master of a ship to render assistance to people in distress. State Parties have an obligation to:

“…promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements co-operate with neighbouring States for this purpose.”

Article 98 thus imposes both a duty to act proactively to save life at sea, whenever distress is known, but also imposes a duty to cooperate among neighbouring states.

This provision builds on similar provisions in the 1974 International Convention for the Safety of Life at Sea (SOLAS) and the 1979 International Convention on Maritime Search and Rescue (SAR).

The SOLAS Convention obliges a State Party to rescue persons in distress “around its coasts” (SOLAS regulation V/7), whereas the SAR Convention requires that “assistance [is] provided to any person in distress at sea” (Chapter 2.1.10). None excludes the high seas from their scope. Indeed, Article 98 UNCLOS is in the Part devoted to the high seas. This is even more appropriate in the Mediterranean, the small size of which cannot be compared to the vast expanses of the world’s oceans.

Human rights law may also be applicable. As soon as a migrant is on board a European flagged ship, that person is within the “jurisdiction” and thus the protection of the European Convention on Human Rights (Medvedyev and Others v France). The same is true of people under effective control of State agents (Hirsi Jamaa v Italy). It is States’ predominant interpretation that they have no obligations towards those outside their jurisdiction. Nevertheless, they have a clear obligation to establish and maintain search and rescue services and to rescue people in distress under law of the sea and maritime law rules. This obligation does not depend on the establishment of jurisdiction.

It is likewise clear that migrants within the jurisdiction of Parties to the European Convention on Human Rights cannot be returned if there is a “real risk” of treatment that is incompatible with the absolute provisions of the Convention or flagrantly denies other human rights. This is often referred to as the principle of non-refoulement. Some States have questioned the application of the principle of non-refoulement on the high seas. International and regional human rights bodies, however, remain strongly supportive. In Jamaa and Others v. Italy, for example, the European Court of Human Rights found that the return of 24 African migrants to Libya, rescued some 35 nautical miles south of Lampedusa, had breached their human rights.

Citing Justice Blackmun (Sale v. Haitian Centers Council), the Court said:

“Refugees attempting to escape Africa do not claim a right of admission to Europe. They demand only that Europe, the cradle of human rights idealism and the birthplace of the rule of law, cease closing its doors to people in despair who have fled from arbitrariness and brutality. That is a very modest plea, vindicated by the European Convention on Human Rights. ‘We should not close our ears to it.’”

States, however, have not always lived up to this high moral standard. The application of the principle of non-refoulement on the high seas has been claimed to create a perverse incentive for States not to conduct proactive search and rescue operations on the high seas. States are acutely aware that rescuing people in distress enlivens their international obligation to refrain from refoulement, as in the Jamaa case.

One can question whether States would actually be more willing to save life at sea if the principle of non-refoulement were to be limited. Furthermore, restricting the application of the principle of non-refoulement where refugees may risk persecution or violation of fundamental human rights would actually strip the duty to save life of its meaning. What is the purpose of saving people from the sea just to abandon them in a territory, such as Libya, if they are going to be treated inhumanely or die? If “saving” has to be given its ordinary meaning, then it should mean really saving life, not just postponing death.

The problem of migrants perishing at sea is not going to go away, as the events of recent days have shown. In fact, it is likely to get worse. The conflict in the Middle East is leading to large spikes in asylum seekers, and the ungovernability of Libya prevents any action by, or cooperation with, that State.

Furthermore, climate change is expected to dramatically increase the displacement of people in the years to come. As in the case of migrants crossing the Mediterranean sea, the 1951 Refugee Convention is ill-fitted to address the matter, as it does not recognise climate change as a legitimate basis for refugee status. Within negotiations on the 2015 climate agreement suggestions have been made for the establishment of a climate change displacement coordination facility to deal with relocation and population displacement.

This is one area where international law is clearly lacking. With insufficient implementation of the international obligation to establish searches on the high seas, and human rights law invoked as a disincentive for such operations, current standards must be adapted to cope with increasing numbers of displaced people, or new international rules must be developed. So far, however, States have had little political appetite to address these highly sensitive questions. In an emergency meeting earlier this week, EU Member States agreed a 10-point action plan on migration, which include reinforcing joint operations in the Mediterranean, as well as options for an emergency relocation mechanism and A EU wide voluntary pilot project on resettlement.

The matter was raised at a special meeting of the European Council on 23 April. The situation in the Mediterranean was recognised as a “tragedy”. The EU decided to “mobilise all efforts at its disposal to prevent further loss of life at sea and to tackle the root causes of the human emergency”. This included a decision to strengthen EU presence in the Mediterranean Sea and a decision to fight traffickers.

The EU’s presence in the Mediterranean will strengthen Triton “by at least tripling” its financial resources, bringing it back to the level of Mare Nostrum. There was likewise a decision to “disrupt trafficking networks”, bringing perpetrators to justice. This is in line with the 2000 protocol to the Convention against Transnational Organized Crime, against the smuggling of migrants by land, sea and air. According to Article 6 of this protocol, State parties must “cooperate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea”. One may question whether the renewed interest in the Mediterranean means that EU States have not so far been cooperating to “the fullest extent possible” to end this practice.