With the election of a far-right government in Italy a new Search and Rescue (SAR) crisis has rapidly escalated and reached EU level. An extraordinary meeting of the Justice and Home Affairs Council (JHA) called by the Czech Presidency is taking place today.

Italy over-plays its hand; France over-reacts

The new Prime Minister, Georgia Meloni, has tried to reassure the EU that her government will not be disruptive – unsurprising, given the billions of Euro Italy is set to receive in post-COVID recovery funds at a time of financial precarity. Her changing rhetoric on Russia, along with her ministerial appointments, suggested an effort to keep the EU tap on, with old EU hand Antonio Tajani in the foreign ministry, and Matteo Salvini denied the interior ministry. Although his former advisor Matteo Piantedosi who has taken the position, shares many of Salvini’s views, he will certainly be a less inflammatory presence at JHA Council.

Nonetheless, the constellation had led rapidly to a conflict on SAR in the Mediterranean, as there are three hardline figures competing to take a hardline on this particular issue. Salvini whose portfolio as minister for infrastructure covers ports, the minister for the “South and the Sea”, long-time far right figure and former president of Sicily, Nello Musumeci, and Piantedosi himself, all stand to benefit domestically from generating a crisis on SAR.

Thus, in a more selective version of the “Closed Ports” crisis of 2018, the government has denied NGO SAR ships the right to dock in Italian ports, using a highly disproportionate measures of issuing individual decrees for each ship banning them from Italian waters except for the purpose of “selective disembarkation” of only the people undergoing medical emergencies.

If the government thought it could contain the issue and minimise its impact on EU relations, it was sorely mistaken. After a standoff, one of the ships was given permission to dock in Toulon, provoking a furious reaction from the French government, including the threat to withdraw from an agreement on solidarity, including relocation, that the French EU Presidency itself brokered (LINK). A flurry of diplomatic activity at the Council has followed, in order to keep reform proposals moving and to salvage the “gradual approach” agreement between the Member States. The Commission has entered the tussle with an Action Plan produced for discussion and likely agreement at the JHA Council today. The Czech Presidency convened the extraordinary JHA, again proving itself to be a far more effective Presidency than many expected. While ECRE has serious concerns about its initiatives on the Instrumentalisation Regulation (HERE), where less action would be preferable, on solidarity, it is making progress. The JHA today will reach some decisions on SAR but will also lay the groundwork for December’s meeting.

Plans, plans

While the Commission has been accused of re-hashing old ideas in its action plan, ECRE too has reached for its contingency plan for the Mediterranean developed during the last crisis of 2018, and presented jointly with Human Rights Watch and Amnesty International in 2021 (HERE); all these ideas for a resolution remain relevant. As in the previous iterations of the perennial Mediterranean SAR crisis which dates back to the 1990s, immediate response is needed to alleviate the humanitarian consequences of the conflicts among the Member States, however a plan for the medium term is just as important. An agreement on both disembarkation and relocation is essential so that a ship-by-ship approach can be replaced by a more stable, predictable and rapid management of the situation.

The Commission’s Action Plan likely to be agreed today, contains some references to these points, however it also has notable weaknesses. Above all, it focuses on the responsibilities of the non-European states on the other side of the Med. As in 2018, with the regional disembarkation platform, these ideas do not work. Egypt and Tunisia do not want to take on more responsibilities; Libya can be bought off because it is run by rent-seeking militias but it cannot be considered part of any solution, given the horrific violations taking place. First priority for Europe should be agreements within Europe. There is a paradox here with the Commission downplaying its responsibilities for ensuring an EU-wide agreement– on the basis that SAR is not part of the EU’s legal order – but then claiming it can secure action by non-EU countries which have no reason to assist Europe.

Misplaced targeting of NGOs

In the Member States’ actions and to some extent in the Commission’s Action Plan, there is an excessive targeting of NGOs, with the revival of the idea of a Code of Conduct. With no evidence whatsoever, States and high-level Commission officials have frequently accused NGOs of operating unlawfully. As in other areas of asylum and migration policy, NGOs are active in SAR because states are deliberately neglecting their legal obligations.  The situation in the Mediterranean is one of death by omission (of SAR). Following the Mare Nostrum era, there has been a reduction in state-led SAR and in SAR under the EU’s auspices, due to the stripping of naval assets from Frontex operations and CSDP Missions (LINK). NGOs have stepped into the breach. Without their presence, merchant ships would be called on even more often, which disrupts commercial shipping activity, as well as being far from ideal as these ships are not well equipped for types of rescue taking place. States accuse NGOs of creating a pull factor, a claim that has not just been rejected but also rebutted. People would still leave and smugglers would still put them on boats. NGO SAR presence means that fewer of them drown. Nonetheless, States consider that NGO SAR activity undermines their strategy of wilful omission, and too much of the JHA discussion will consider this.

The provisions of international law

International law should be the starting point for Europe’s response, however in this week’s meetings in the run-up to the JHA, some novel and at times absurd interpretations of International Law of the Sea (ILOS) have been bandied about, whereas core obligations are being overlooked. As the Commission, UNHCR, IOM and other have underlined, the duty of rescue applies for all ships and rescue is not completed until the people have been disembarked in a place of safety. Coastal states have particular obligations to organise SAR and coordinate rescue within their Search and Rescue Regions, and there are further obligations on states to coordinate and cooperate with each other. Within the territorial sea of coastal states, SAR vessels are within the jurisdiction of those states and human rights law clearly applies as well as ILOS. The flag state of the ship – the country where the ship is registered and whose flag it flies – has jurisdiction over the people on board on the High Seas. However, that does not mean that people should be transported there – they should be taken to a nearby place of safety if rescued. Thus, the selective disembarkation practiced by Italy has no basis in international law nor does its contention that NGO ships should go to the flag state. At the same time, as NGOs have highlighted, Malta’s refusal to respond to maydays or to coordinate rescues in its SRR, is a flagrant breach of its obligations.

And its limitations…

Despite the clear obligations that derive variously from the UNCLOS, the SOLAR Convention and the SAR Convention, ILOS does not have all the answers. In particular, there are two major gaps which underlie the ongoing crises and have to be acknowledged in order to provide solutions. One is the huge physical gap that is the so-called Libyan Search and Rescue Region managed by the so-called Libyan Coastguard. Libya is not a place of safety for the purposes of ILOS or in any other possible meaning, legal or otherwise, of the phrase. Thus, people rescued cannot be taken to Libya.

The other gap is the lack of a clear and agreed answer to the question as to WHICH place of safety a ship should be directed to. Efforts to provide an answer led to amendments of the SAR Convention in 2004, but there are still disputes over the interpretation of the text. The centre coordinating the rescue should identify a place of safety and direct the rescue ship there, so that the rescue is completed as quickly as possible, and the shipmaster is “discharged” as quickly as possible of the responsibility for the people on board and with minimum deviation from the ship’s original path. While some argue that this means the nearest port that is a place of safety, there are other interpretations. Then there is the additional challenge – that Malta has not accepted the 2004 amendments and is therefore not bound by them, and as a result continues to deny access to its ports.

The required agreements

Thus, in the medium-term, the way out requires agreement among coastal states on sharing of responsibility for disembarkation, as well as an agreement among non-coastal states on relocation. While neither France nor Italy comes out of the last two weeks looking particularly smart, other Member States are also at fault and not least Malta. Member States beyond Italy need to accept some responsibility for disembarkation while respecting the ILOS – meaning not relying on countries that are not places of safety and not introducing new responsibilities for flag states that don’t exist in international law – but also acknowledging the limitations and different views on the appropriate destination for rescue ships. It is not acceptable for Malta to simply say that it doesn’t recognise the 2004 provisions so won’t accept anybody (and won’t coordinate rescues), nor is it acceptable for other states to say the ship should go to the nearest port and there can be no dispute. Nor is it acceptable for Italy to put forward inaccurate analyses and otherwise refuse to respect ILOS just because it bears the bulk of responsibility.

The relocation piece

In addition, agreement is needed on sharing responsibility for the people rescued. It is argued that reforming Dublin is necessary, because the first entry principle underlies the conflict. The states at the border deny entry because they do not want to be responsible and believe – rightly – that the rules are not fair. That is manifested in pushbacks at land borders and omitting SAR or denying access to NGO ships at maritime borders. However, despite the legislative reform proposals largely reform the rules – the Regulation on Asylum and Migration Management (RAMM) keeps the basic Dublin rules as did the Dublin IV proposal before it. Thus, the debate is centred on compensatory solidarity mechanisms.

Progress has been made with the declaration brokered by the French – which they are now threatening to blow up – and with progress on discussing detaching the solidarity mechanisms in the RAMM proposal. Current efforts are focused on preserving these agreements. ECRE’s position remains that reform of the rules is necessary but in lieu of that deeper reform, solidarity mechanisms are useful ways to ensure that the sharing of responsibility is somewhat fairer for the applicants, as well as the Member States. In addition, while states might continue to engage in pushbacks and disruption of SAR, it becomes less likely if solidarity in the form of relocation is in place.

The JHA Council is debating a broad agreement not one specific to the central Mediterranean or specific to SAR, and this is probably necessary to get the agreement of wider range of Member States. Nonetheless, on solidarity, even agreements that are limited in scope are useful and can be built on. In addition, previous relocation efforts and the Solidarity Platform that is operating as part of the response to Ukraine displacement, demonstrate that sometimes solidarity tools just have to be put into practice because it is easier to make solidarity work at the operational level than to reach political agreements.

Europeanising the crisis?

Responding to the situation in the Mediterranean needs strong EU action, however, there is a certain reluctance from the European Commission. Despite its production of an Action Plan, the Commission underlines that Member States should lead on finding a solution. This is unhelpful – the Commission is rather obtusely selective about when it chooses to play an active role. This year, the Ukraine crisis again has demonstrated how much more effective Europe’s response is when the active Commission is present, rather than the passive Commission that self-defines its role as “doing what the Member States want”. As is well-established, the Member States are riven by conflict on asylum and migration, and thus the EU needs to propose and broker agreements, and it needs to focus on respect for EU law, international law and the rule of law. Again, on Ukraine, the active Commission has also been one focused on protection and fundamental rights, and that is sorely needed in the Mediterranean. There is also a clear role for the EU Asylum Agency, which has previously been involved at the operational level in coordinating relocation following SAR, including developing useful Standard Operating Procedures, which help to keep the process moving and serve to counteract Member States’ tendency to cherry-pick the people they want to relocate, rather than a fair matching process being applied.

Thus, while immediate actions are always necessary – such as opening ports – when the SAR issue is exploited by Member States, a plan for the medium term and progress on solidarity is as important. It cannot be dependent on the Pact being passed or Dublin being reformed because these outcomes may never be achieved. Reinstating state-led SAR including under the EU’s auspices is important rather than futile efforts to stop people leaving or to stop NGOs from operating. Solidarity in the form of relocation after SAR or a wider solidarity agreement covering all the border situations, would both be useful. However, the need for cooperation and agreement on disembarkation should not be overlooked in the midst of the complicated debates on what happens after people are rescued.

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

This article appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.