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lunedì 13 giugno 2016

Search and Rescue in the Central Mediterranean Route

Search and Rescue in the Central Mediterranean Route

Fulvio Vassallo Paleologo
Elena Consiglio

Clinica legale per i diritti umani (CLEDU) dell’Università di Palermo

The Central Mediterranean Route is the maritime route that migrants coming from Lybian coast take in the attempt to reach Maltese or Italian shores in Lampedusa and Sicily. One of the longest and most perilous[1] routes, if compared to the shorter Eastern Aegean route from Turkey to Greece.  It is a fact that the highest number of deaths of migrants at sea was recorded[2] on this route.

On the shore the day set for departure sub-saharan migrats including Gambian, Malian, Nigerian, Somali citizens, meet migrants coming from East-Asia, the majority from Bangladesh, other migrants from Maghreb, Ethyopia and Eritrea. All of them reached Lybia thorugh risky trips crossing the desert.

The survivors of the trip often need to remain in Lybia to make enough money to pay the smugglers. In some cases they are subject to sexual and work exploitation. Many of them stay in Lybian detention centres in dreadful conditions.

The smugglers inflate rubber boat on the day and send off the overcrowded boats without sufficient fuel for the whole journey. The destiny of the boats is clear from the beginning: they won't be able to make it to Malta, or Italy alone.


Obligation to search and rescue

The 1979 Convention on Maritime Search and Rescue adopted at a Conference in Hamburg, was aimed at developing an international SAR plan, so that, no matter where an accident occurs, the rescue of persons in distress at sea will be co-ordinated by a SAR organization and, when necessary, by co-operation between neighbouring SAR organizations. A revised Annex to the  SAR Convention was adopted in May 1998 and entered ito force in  January 2000.

The SAR zones established pursuing the International Convention on Maritime Search and Rescue signed in Hambourg in 1979 divide the waters in the Central Mediterranean Route between Italy, Malta and Lybia.

The State responsible for a SAR area is responsible for coordinating the SAR operation, for the treatment of persons rescued at sea: in particular the State must provide a place of safety disembarking or ensure that such a place is provided[3]. This may be influenced by formal or informal bilateral agreements.

Even after the end of Mare Nostrum operation Italy's intervention in the Maltese SAR zone continued as the disembarcation of people rescued in Maltese SAR zone on the Italian territory. It appears that the informal agreement between Italy and Malta is still enforced in the Central Mediterranean Corridor as Italy is still intervening in Maltese SAR zone on the route from Lybia to Sicily[4].
Actors of SAR operations in the Central Mediterranean Route

Italian and humanitarian vessels are main actors in SAR operations in the Central Mediterranean Corridor as this activity is within their mission.

The head of Italian SAR organization is the central commandof the Corpo delle capitanerie di porto - Guardia Costiera, which is a special unit of the Navy[5]. It is mainly concerned with search and rescue but also deals with other issues related to maritime safety and control.

Vessels deployed by humanitarian associations. Doctors Without Borders (MSF) has deployed two vessels: Bourbon Argos and Dignity, for SAR operations in the Central Mediterranean Corridor. MSF also cooperates with Acquarius (SOS Mediterranée). MOAS (Emergency) deployed one vessel.

Sea Watch deployed two small vessels, unapt to rescue operation, but fast, which are used for search operations of vessels in distress so that competent the MRCC can be informed as soon as possible of any occurring emergency situation an about the position of the vessell in distress.

Merchant ships have been and are increasingly involved in SAR operations in two cases: either under the general obligation to rescue provided by international law (UNCLOS) and Italian law or when the Italian MRCC declares the SAR event and they are called to join the SAR operation. The involvement of merchant ships may be direct or indirect. When merchant ships do not intervene directly by taking people on board, their involvment may be indirect: through searching, alerting the competent autorities about an emergency situation in distress, distributing food, waiting for the arrival from ships from the Navy, the coastguards, Guardia di Finanza.

Merchant vessels are not designed for SAR operations, not equipped to rescue or providing adequate assistance to rescued persons, witout the human and material resources to carry out rescue activities safely[6]. As they are not designed for SAR operation, safety issues often arise as the process of taking people on board may be dangerous, there is no medical equipe on board to assist people intercepted.

The operation Mare Sicuro does not have the task to control borders but to guarantee the safety of sea crossing for commercial vessels, security for oil-plants, and fishing activities.
In order to carry out these activities the position of the Mare Sicuro units must be in international waters in proximity with Lybian waters.

The role of Guardia di Finanza is coordinatitng the 'control of illegal immigration at sea' implemented by the Navy, The Police and the Guardia Costiera, and intercepting 'smugglers'[7].

In case a SAR event is declared by the Italian authorities any boat including patrol boat which is in the proximity must intervene.

Frontex: the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the Agency’), also known as 'Frontex', was established by Council Regulation (EC) No 2007/2004 and started operating on 3 October 2005[8], with the mission to support, coordinate and develop european border management.

Regulation 2004/2007 disciplines Frontex's structure and function with reference to contrasting illegal immigration but without reference to specific SAR and disembarking in a 'place of safety obligations' In any case, Regulation 2004/2007 makes it clear that Frontex's mandate must be carried out in line with the Charter of Fundamental Rights of the European Union and other international obligations, including provisions on the right to asylum and international protection and the principle of non-refoulement.

Although in general terms, Frontex Regulation 656/2014[9] provides Frontex's obligations regarding search and rescue activities.

This Regulation replaces Council Decision 2010/252/EU (2) which was annulled by the Court of Justice of the European Union (‘the Court’) by its judgment of 5 September 2012 in Case C-355/10 it was not within the executive competence of the Council.

It is the the Central Command of the Italian Coast guard the one who has the authority to declares the SAR event in the SAR zone in which Frontex conducts border surveillance activities. 
The Agency Frontex is responsible for the coordination of operational cooperation between Member States in the field of management of the external borders, including as regards border surveillance. The Agency is also responsible for assisting Member States in circumstances requiring increased technical assistance at the external borders, taking into account the fact that some situations may involve humanitarian emergencies and rescue at sea. 

The prohibition of violation of fundamental rights in Frontex operations entails the obligation to
- protect personal safety,
- provide the rescued persons with information about the proposed place for disembarkation,
- address the special needs of vulnerable persons, including unaccompanied minors, victims of trafficking in human beings, persons in need of urgent medical assistance, disabled persons, persons in need of international protection and other persons in a particularly vulnerable situation,
- protect rescued person's right to privacy.
The exchange with third countries of personal data regarding intercepted or rescued persons obtained during a sea operation shall be prohibited where there is a serious risk of contravention of the principle of non-refoulement. This is very important to bear in mind should the dreadful proposal of floating hot spots becomes more than a proposal.
- full respect for human dignity and the principle of non-refoulement (Article 4).

During border surveillance operations at sea, Member States should respect their respective obligations under international law, in particular the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, the International Convention on Maritime Search and Rescue, the United Nations Convention against Transnational Organized Crime and its Protocol against the Smuggling of Migrants by Land, Sea and Air, the United Nations Convention relating to the Status of Refugees, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Convention on the Rights of the Child and other relevant international instruments.

In accordance with Regulation (EC) No 562/2006 of the European Parliament and of the Council (5) and general principles of Union law, any measure taken in the course of a surveillance operation should be proportionate to the objectives pursued, non-discriminatory and should fully respect human dignity, fundamental rights and the rights of refugees and asylum seekers, including the principle of non-refoulement. Member States and the Agency are bound by the provisions of the asylum acquis, and in particular of Directive 2013/32/EU of the European Parliament and of the Council (6) with regard to applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of Member States.

United Nations Convention on the Law of the Sea of 10 December 1982
Under article 33 UNCLOS patrols should be limited to the 24 nautical miles of the Italian contiguous zone. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;(b) punish infringement of the above laws and regulations committed within its territory or territorial sea.
The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.
However, in fact patrol operation are also conducted beyond the contiguous zone in international waters.

Article 98 UNCLOS  - 1982

Duty to render assistance
1.Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, 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. 2. Every coastal State shall 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 cooperate with neighbouring States for this purpose

While in the first four months of 2014, more than 26,000 migrants had crossed the Mediterranean and 60 Deaths had been recorded, in the same period of 2015, an almost identical   number of crossings had occurred, but the number deaths had increased to1,687 (UNHCR and IOM data).

 The lethal effects of the eu’s policies of non-assistance at sea
A report by Charles Heller and Lorenzo Pezzani (Forensic Oceanography/Forensic Architecture)
Part of the ESRC supported “Precarious Trajectories “research” project, University of York and Goldsmiths, University of London.

Since autumn 2015 EUNAVFOR MED (European Navy For(ce) Mediterranean) operation became more present than Frontex in the Central Mediterranean Corridor.

Recently Alfano and the European Commission propose the creation of floating hotspots, thus transferring the hotspot approach on the Navies that intervene in search and rescue operations. The floating hotspot would facilitate identification and anticipate the separation of person in clear need of protection and so called 'economic migrants' making it easier to return the latter.

Success of SAR operations is tightly linked to the number and characteristics of vessels deployed by Frontex, Eunavformed present on the Central Mediterranean Corridor.

The need to contrast illegal immigration and the obligation to protect human life at risk are in tension. The balancing between the two interests is determined making reference to the obligations provided by international. European and national law. However in practice this balancing is decided by the forces deployed, whcih is a very factual element, but also by political and military equilibriums between the countries involved.


[1] http://www.theguardian.com/world/2016/may/31/mediterranean-death-toll-880-last-week-unhcr-migration
[2] http://missingmigrants.iom.int/
[3] Guidelines on the treatment of persons rescued at sea, adopted in May 2004 by the Maritime Safety Committee together with the amendments to the International Conventions on Maritime Search and rescue and for the Safety of Life at Sea
[4] News reported that on 20 May 2016 Italy delegated Malta to intervene in response to a request (SOS) in Maltese waters. On its Eastern side, Maltese SAR confines with Greek SAR (North) and Egypt SAR (South). It is therefore plausible that Italian vessels would not be able to arrive on time in case a vessel is in distress on the route from Alessandria (Egypt) to Malta, South in respect to Peloponnesus and East in respect to Malta.
[6] Letter to 28 Member states of the European shipowners' association and seafarers' asociations' unions dated 8 April 2015.
[7] Article 12 (7) L. n. 4038/1998.
[8] Frontex was instituted by Regulation (CE) n.2007/2004 of the Council of 26 October 2004 (GU L 349 del 25.11.2004), and started operating on 3 October 2005.

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Un blog perché la cronaca quotidiana non diventi assuefazione, per contrastare la rimozione di problemi che sono prodotto di scelte politiche e di prassi amministrative che si nascondono dietro le retoriche dell'emergenza e della sicurezza. Prima di Lampedusa, prima dello sbarco, cronache di viaggi che spesso terminano in tragedie, poi notizie raccolte nei luoghi di sbarco e di accoglienza, dove si diffonde la detenzione informale e dove i diritti fondamentali dei migranti vengono compressi da una discrezionalità che si sottrae a qualsiasi controllo giurisdizionale, infine testimonianze di viaggio verso altri paesi, per trovare quel futuro e quella dignità che lItalia non garantisce più. E dunque fatti, persone, non numeri o dati, un racconto quotidiano che diventa memoria, ma anche impulso per modificare, in Italia ed in Europa, il quadro legislativo e le procedure applicate.

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