The Role of NGOs within Search and Rescue Activities at Sea
Francesca Romana Partipilo
PhD Candidate, Sant’Anna School of Advanced Studies
Introduction: The Mediterranean Sea and the “Refugee Crisis”
Today, the Mediterranean is the deadliest border crossing in the world. According to the Missing Migrants Project implemented by IOM, more than 23,000 migrants and asylum seekers lost their lives in an attempt to reach Europe between 2014 and 2022. These painful numbers are the result of the mismanagement of migratory movements generated by the Arab Spring, which erupted in the MENA region in 2011. However, in Europe, the notion of a “refugee crisis” only entered the public debate in April 2015, following four consecutive shipwrecks in the Canal of Sicily, which caused the deaths of over 1,200 people. For this reason, 2015 is often identified as the beginning of the refugee crisis, although, already in October 2013, there had been a shipwreck off the coast of Lampedusa which caused almost 400 deaths.
Since 2014, at the very beginning of the “crisis”, volunteers, non-governmental organizations and civil society groups have tried to fill the gaps in humanitarian assistance generated by the exclusionary migration policies of the EU. Moved by the recurring and avoidable deaths of migrants at sea, NGOs like Médecins Sans Frontières, Sea Watch, ProActiva Open Arms, Jugend Rettet, and Mediterranea Saving Humans have launched their own Search and Rescue (SAR) missions in the Mediterranean. In addition to sea rescue NGOs, international, national, and local NGOs have provided support to people on land routes, at hotspots, camps, reception, and detention centers. Regrettably, despite their crucial life-saving role, NGOs and civil society organizations providing humanitarian assistance to migrants and asylum-seekers are increasingly under attack. Lengthy criminal proceedings, punitive administrative acts, and disinformation campaigns severely hinder the voluntary work of those who assist migrants in their journeys. Such a situation exerts a detrimental impact not only on the rights and lives of migrants and refugees, but also on NGOs’ freedom of association, hampering their ability to provide humanitarian assistance, and ultimately endangering the rule of law in the European legal space.
The Legal Framework on SAR and EU States’ Disengagement
The international legal framework governing SAR at sea includes the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1974 International Convention for the Safeguard of Life at Sea (SOLAS Convention), and the 1979 International Convention on Maritime Search and Rescue (SAR Convention). Additionally, it includes other instruments such as the IAMSAR Manual, jointly drafted by the IMO (International Maritime Organization) and the ICAO (International Civil Aviation Organization) to provide guidance for the management of SAR activities. These legal instruments prescribe flag states to demand that masters of ships flying their flags aid persons in distress at sea, regardless of their nationality. Furthermore, the legal framework on SAR requires coastal states to establish, operate and maintain adequate and effective SAR services off their coasts, cooperating among each other to ensure the provision of rescue services to all individuals who might find themselves in distress at sea.
Regrettably, despite the existence of such an articulated legal system, recurring incidents of non-assistance at sea, alongside concerning instances of lack of cooperation among EU Member States in the context of rescue missions carried out in their SAR zones, pose substantial challenges to the international protection of human rights. Infamously, in 2021, the Human Rights Committee found that Italy had failed to rescue more than two hundred migrants in 2013, ignoring the distress calls coming from a dinghy departed from Libya and failing to protect the right to life of all the migrants on board. In its decision, the UN treaty-body found Italy responsible for the death of the migrants perished in the accident, emphasizing Italy and Malta’s disregard for the obligation to cooperate in the event of SAR operations, contained in the SAR Convention.
The Duties of NGOs in the Mediterranean Sea
In such a devastating context, what are NGOs’ duties in relation to the protection of human life at sea? As noted in a recent study of the European Parliament, ‘The EU Approach on Migration in the Mediterranean,’ at the peak of their activity during 2016-17, NGOs were the most important single rescue provider, with a 26% share of total rescues in the Central Mediterranean. Unfortunately, as the law stands today, it seems that rules on SAR and provisions of refugee law have states as their exclusive addressees. However, despite the fact that the international legal framework on SAR refers to states as its primary recipients and duty bearers, it should be noted that the 1974 SOLAS Convention stipulates that the “master of a ship at sea is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service that the ship is doing so”. The recipient of the obligation to rescue is therefore the shipmaster himself/herself/themselves. Similarly, UNCLOS refers to the duty of states to require their shipmasters to rescue people in distress at sea. The only way in which a shipmaster could avoid compliance with this duty is to demonstrate that a particular set of circumstances could seriously endanger his ship, crew, or passengers when attempting to assist. Therefore, rather than criminalizing humanitarian NGOs, states should provide enforcement measures in case shipmasters fail to meet their obligation to rescue people whose lives are in danger. This argument finds additional reinforcement in some legal systems. For instance,in the Italian one, which charges the master for omission to rescue with administrative and criminal sanctions (Italian Navigation Code, art. 1113).
The current humanitarian situation in the Mediterranean Sea is compounded by the presence of a wide array of different actors with different aims and agendas. In such a context, a useful interpretative tool is offered by the definition of “regional migration governance” provided by Sandra Lavenex. With this expression, the author refers to “regional institutions addressing mobility, asylum, migrant rights or migration control” and underlines that migration governance implies the “complex interaction among various actors in the management of migration that is made explicit in the multi-level governance of migration framework”. As a matter of fact, the field of Migration is characterized by the interaction among different actors, whereby non-state actors such as NGOs play a crucial role. In light of such an observation, a strengthened cooperation among all the stakeholders involved in migration management, with a view to increasing the protection of human rights at sea (in a spirit of shared responsibility) is pivotal., In addition, it is necessary that European states finally begin to expand their responsibilities to encompass the management of migration flows by sea, while also avoiding agreements with entities unaccustomed to the respect of human rights. European countries must also directly manage rescue operations that occur within their shores, and put an end to the criminalization of humanitarian interventions of NGOs in the Mediterranean. It is time to realize that effective and adequate SAR mechanisms in the Mediterranean are of utmost importance for the protection of migrants’ right to life.