The leaking of the “draft roadmap” towards a framework on operational cooperation on Search and Rescue (SAR) in the Mediterranean has caused some consternation among NGOs and associations involved in SAR,  as well as among experts on International Law of the Sea (ILOS) – and with reason.

The document was produced for discussion at the SAR Contact Group, the grouping of EU Member States with an interest in SAR in the Mediterranean, which is managed by the Commission. In principle, the Contact Group is a good thing – European coordination is necessary to tackle the longstanding crisis in the Mediterranean, which flares up to acute levels from time to time, with an ever-increasing death rate. There is a permanent need for a group where states can work together, build trust and come up with ways to collectively manage the situation (which like anything is manageable if managed collectively). Indeed, ILOS imposes an obligation on states to coordinate and currently the SAR Contact Group should be the forum for that.

While the language is cautious – it is a “working paper” on a “draft roadmap” – the document essentially contains a first draft of the operational framework to address “specific challenges” related to migration across the Mediterranean, including those “deriving from the increased number and types of actors involved in SAR operations”. While the framework purports to address all challenges, the focus is on these other “actors” – code for SAR NGOs.

The document contains nine deliverables, a number of which outline the areas on which agreement is sought – agreement on the scope of the framework (Deliverable 1), on operational roles and responsibilities of flag and coastal states (4), on types of information that shipmasters may be asked to collect (5), and on the concept of “distress” situations (7). It then includes the improving situation awareness (Deliverable 2), nomination of focal points by Member States (3), consultation of other stakeholders (6), standardisation of registration and certification rules on private vessels (8), and a possible initiative on SAR within the IMO (9).

As such, the document gives rise to a major concern about the agenda of the SAR Contact Group, as well as about the content of the future operational framework, namely: there is a significant imbalance – the focus is on NGOs and not on the responsibilities of states to coordinate and carry out SAR. There is also a noticeable regression compared to the agenda for coordination groupings on SAR in 2018/ 2019. At that point, the stand-off with the then Italian government had stimulated cooperation on SAR, led variously by France and Germany, and by IOM and UNHCR, with proposals and informal agreements on coalitions of the willing and relocation arrangements, and practice developed by the EUAA. There were of course flaws in some of the proposals – not least the controlled centres notion or the attempts to deflect responsibility to the southern Med. But at least the focus was on the role of the states.

In the new document, while there are references to the obligations of states under ILOS and elsewhere in international law, the deliverables do not include many concrete commitments that would contribute to states actually meeting their SAR responsibilities, despite the flagrant refusal of certain states to do so. There is also no mention of the contentious issue of disembarkation or the urgent need to have SAR managed under the auspices of the EU, allowing also the involvement of non-coastal states.

These issues were at the heart of draft agreements and debates in 2019. Now, the focus is on (further) regulating the activities of SAR NGOs, perhaps in order ultimately to restrict their ability to operate – an express priority for some governments. The backdrop to the proposals is the frequent insinuations or assertions even that SAR NGOs are not respecting international law. The document contextualises the issue with the related questionable assertions that humanitarian SAR is something new and that it is not covered by the current international legal framework.

The European Commission has recently consulted NGOs on SAR. Of the Contact Group members, only the German government has consulted with civil society, which it did this week. Concerns expressed related in particular to Deliverable 5, on the information that shipmasters should be obliged to divulge, which might go beyond what international law requires and it is feared will complicate or hamper rather than speed up rescue; Deliverable 7 on definitions of distress, which is viewed as unnecessary and chimes with efforts of states to redefine and raise the threshold concerning what is a situation of “distress” engaging duties of rescue (although this is well established in ILOS) in order to evade their SAR obligations; and Deliverable 8 on certification and registration, which may be linked to efforts to hamper the registration of SAR vessels. Also to note, is the focus on the flag state responsibilities, given that there has been pressure on the states where SAR NGOs’ vessels are registered. While consultation with SAR NGOs (Deliverable 6) might in principle be useful, there is a risk that dialogue with NGOs serves to further focus on their role and distract from that of states. In all of this it should be remembered that NGOs and associations are only present because there is gap not filled by states.

In the framework, this same gap – the absent state – is also noticeable. Under ILOS, SAR is primarily a state responsibility; the SAR Contact Group is a grouping of states. So where are the references to states’ operational role in the Mediterranean? For the SAR Contact Group to be useful and to contribute to states meeting their obligation to coordinate, a certain rebalancing is necessary. Otherwise discussions should restart in other fora.

For reasons beyond the scope of this comment, efforts to reform international law are a distraction and the reform of EU law – the Pact – is not going to resolve this issue, neither in the long nor short term. It should also be noted that the reality is that smugglers are highly versatile and will continue to operate, people will continue to leave. Routes will become even more dangerous.

In this context, however contentious they may be, missing elements that are necessary for a meaningful plan on operational cooperation in the Mediterranean include:

  1. References to states’ SAR responsibilities in specific cases and circumstances, not only the general provisions of international law, including on obligations for coordination in the particular scenarios that arise in the Mediterranean.
  2. Common positions on the operational implications of the establishment of a Libyan SAR zone, given that it is essential a European construction, along with reference to all the other implications of and alternatives to reliance on the so-called Libyan Coastguard.
  3. Restarting discussions “towards” an eventual division of responsibility for disembarkation, so that all states fulfil their responsibilities, and so that the pressure on Italy is not disproportionate (and out of sync with most interpretations of ILOS). This has to include openly working around Malta’s lack of acceptance of the 2004 amendments of the SAR Convention, which cannot just be wished away (but which also does not in any way justify other refusals to respect legal obligations).
  4. Relatedly, continuing to encourage support for relocation from non-Mediterranean Member States. This should be in the role qua European states working together, and not through misguided efforts to misinterpret the responsibilities of flag states in international law, which is a separate function.
  5. Exploration of reinstating SAR under the auspices of the EU. Unfortunately, the loud voices in the Council which claim that SAR in the Mediterranean is a pull factor (although there is no evidence for this) have meant a stripping of the SAR operational role from the EU. The changing mandate of erstwhile Operation Sophia is the most egregious example (here); but the removal of naval assets from operations that do not include SAR means they no longer have that capacity to rescue. A starting point could be a review of the SAR functions of existing European operations and missions.
  6. Implications for merchant shipping of current and projected future SAR capacity.

It may be that – as in many areas of asylum and migration – mutual trust among the Member States is lacking, and the SAR Contact Group aims first to build that before moving to tackle the more sensitive issues, including these crucial aspects of operational cooperation mentioned above. But it may also be that Member States see it as vehicle for pursuing their agenda of shutting down SAR NGOs. Either way, a certain balance is required.

Editorial:Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)