Libya misuses the establishment of a Search and Rescue Region (SARR) under the guise of fulfilling international obligations in front of its coast as a pretext to ban NGO rescue vessels. This conduct is not only tolerated but encouraged and facilitated by the European Union. Such developments are the beginning of a developing trend of cooperation between the European Union and Northern African states.
Cooperation with countries of origin and transit as well as the shift of border controls outside a state’s territory – the so called process of externalization – has become an key component of European border policy and practice. Scholars such as Thomas Gammeltoft-Hansen have been exploring this trend for several years and stated that this development as well as the involvement of private actors can be seen as “part of a globalisation process whereby migration control is simultaneously ‘offshored’ and ‘outsourced’” (See Gammeltoft-Hansen, p. 2).
For a long time, the waters off the Libyan coast were not covered by a search and rescue service – a dangerous protection gap for boat refugees. Starting in early 2016, Italian and NGO rescue operations have stepped in, bringing rescued people to places of safety in Europe. Recently, Libya has finally established a Search and Rescue Region (SARR) extending 74 nautical miles off its coast.
Far from being a positive development, however, this appears to be a misuse of the rescue regime under the guise of fulfilling international obligation. Human rights reports not only show that Libya is anything but a place of safety for rescues. Moreover, in the beginning of August 2017, Libya announced a ban on foreign non-governmental organization rescue vessels within its SARR.
This conduct is not only tolerated but encouraged and facilitated by the European Union (EU), as the proclamation of the Libyan SARR is part of the bigger plan to reduce the numbers of asylum seekers and migrants that reach European territorial waters. In fact, such developments are the beginning of a worrying trend in the cooperation between the EU and North African states, shifting the responsibility for rescue operations to third countries to circumvent obligations such as the prohibition of collective expulsion or the non-refoulement principle (see Gammeltoft-Hansen, p. 69).
This perfidious strategy seems to be successful: aid organizations such as Médecins Sans Frontières and Save the Children have proclaimed that they have temporarily terminated their rescue operations in these areas.
The background: Getting Libya to hold back migrants
Collaborations in the field of migration has a long history and in the past involved regimes which do not sufficiently respect a minimum standard of human rights; yet, this has thus far not been a central issue of concern. The EU rather seemed to concentrate on reducing the numbers of asylum seekers and migrants in Europe.
The EU’s interest in cooperating with Libya is obvious – almost 90% of departures in 2015 from Africa to Europe left from here. Thus, in order to strengthen efforts to keep migrants and asylum seekers from reaching European shores, the EU member states set a series of concrete goals for cooperating with Libya in the 2017 Malta Declaration. In a nutshell, the EU promised Libya financial aid, training of the coastguards, and technical support in exchange for preventing asylum seeker from accessing Europe.
According to recently published data, arrival numbers in the EU have dropped tremendously. This “success” in reducing the numbers of arrivals seems be of short duration. Media reported recently that more than 5,000 asylum seekers and migrants have been picked up in the area between Libya and Italy within one week. It remains to be seen how these numbers will develop. However, one thing can be said with certainty: the EU and Libya will keep stepping up their efforts to ensure that the ‘Fortress Europe’ remains out of reach for as many as possible.
The SARR: Another measure to prevent access to the EU
Since the implementation of the Malta Declaration in early 2017, the events and incidents in the Mediterranean seem to overturn on a weekly basis.
There have been gruesome reports of violent attacks and threats towards asylum seekers and rescue organizations as well as of shootings in detention camps in Libya to make room for new arrivals. Simultaneously, Italy threatened to close its harbors to any ship undertaking migrant rescue operations at sea which does not sign a code of conduct – a threat that the German parliament’s research section found to be incompatible with international law.
Customary international law provides that vessels in distress must be rendered assistance and that rescues must be brought to a “place of safety” – that is, a place where their life and safety are guaranteed and where their basic needs will be met. This ad-hoc regime is complemented by the 1979 International Convention on Maritime Search and Rescue (SAR), which Libya joined in 2016.
Under that Convention, state parties define the regions in which they provide organized and coordinated search and rescue services. All it takes to set up a SARR is an agreement among parties and a notification to the UN Secretary-General (SAR, Annex 2.1.4). However, preventing private ships from undertaking rescues, or reducing the departure of asylums seekers and migrants are clearly not goals envisaged by the Convention.
The reason for the establishment of the SARR was to facilitate rescue missions of boats in distress within a 74-nautical mile zone in front of Libyan shores. With the establishment of this region, Libya -in contradiction to international law- also proclaimed the ban of NGO vessels operating in this area. When examining the legality of this ban, the United Nations Convention on the Law of the Sea (UNCLOS) as well as general rules of the law of the sea have to be considered as the SAR regime operates alongside these sets of rules. UNCLOS defines a series of zones starting from the coast, in which coastal states enjoy decreasing jurisdictional competences: the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the High Sea. Its key provisions reflect customary international law and therefore also apply to Libya, a non-signatory state.
Private vessels under the Law of the Sea: Innocent passage and freedom of navigation
Within the Territorial Sea, which extends up to 12 nautical miles from the coast, the coastal state’s sovereignty is limited by the right of innocent passage (Arts. 17, 21 and 24 UNCLOS). Passage is innocent in this sense as long as it is not prejudicial to the security of the coastal state (Art. 19(1) UNCLOS). It is not apparent how rescue operations of NGO vessels would infringe Libyan security. Ships may even stop for rendering assistance to persons in distress, a customary law obligation enshrined in Art. 98 UNCLOS.
Thus, if a NGO vessel merely passes through the Libyan territorial waters or stops to assist persons in distress, it enjoys the right of innocent passage. It may not be banned and a fortiori may not be attacked by Libyan coastguards. To the contrary, Libya has an obligation to refrain from hampering this passage (Art. 24(1)(a) UNCLOS).
By banning NGO vessels from its territorial sea and verbally and physically threatening rescue vessels, Libya violates its duties under international law.
In the adjacent nautical zones, the freedom of navigation applies (Art. 58(1), 87(1)(a), 90 UNCLOS). Rescue vessels may therefore freely conduct patrolling operations looking for boats in distress. Only in the Contiguous Zone, up to 24 nautical miles (Art. 33(2) UNCLOS), the coastal state may still exercise control to detect infringements of its immigration laws, provided those occur within its territory or territorial sea (Art. 33(1) UNCLOS). Provided this is not the case, NGO patrols may not be banned or interfered with by Libya in its 74 nautical miles SARR zone.
The rescue regime: A dangerous first come first serve game
NGO patrols are of major importance, as the fate of the asylum seeker and migrants is determined by their rescuers. If the Libyan coastguards intercept them, they will likely end up in a Libyan detention camp and face torture, rape and other human rights violations. If they are rescued by NGO vessels, chances are higher that they will be brought to a EU port.
During a rescue operation, the first unit to arrive is to take immediate action and assumes responsibilities as long as the coastal state has not determined an on-scene commander (SAR Annex 5.7.1-3).
Due to this ‘first come first serve’ procedure, rescue operations in these areas become a race against the clock and a question of capacity. It is obvious that the EU has a role in this race to the rescue, as long as Libya does not have its own Maritime Rescue Coordination Center. So far, a center situated in Rome organizes and coordinates rescue operations. When the Libyan SAR services are called upon, those rescued will be taken to an unsafe place – in violation of international rescue obligations – and exposed to severe human rights violations.
By establishing the SARR, Libya is therefore implementing its legal obligations under the SAR Convention; however, by banning all NGO rescue vessels, Libya is vastly overstepping its competences and violating international law. In fact, the implementation of the SARR does not achieve its goal of facilitating the rescue of people in distress, but is a pretext for hampering rescue operations.
The establishment of Search and Rescue Regions: An unstoppable trend?
Unfortunately, it seems that the establishment of this SARR has only been the beginning of a trend; in its Action Plan of July 2017, the EU also called on Tunisia and Egypt to declare search and rescue regions.
Moreover, several EU member states operating the satellite-based Seahorse Mediterranean Network have started providing Libya with information from the EUROSUR European surveillance systems. Such exchange facilitates ‘rescue missions’ of the Libyan coastguards outside the country’s territorial waters. Access to such information will equip the Libyan coastguards with unbeatable advantages in the first-come-first serve game.
In conclusion, by generally banning all rescue vessels from entering its Search and Rescue region, Libya violates its international law obligations under the pretext of implementing international duties. The fact that Libya has not ratified UNCLOS does not diminish this violation, as innocent passage, freedom of navigation, and the duty to render assistance are of longstanding customary law character.
The establishment of operative SARRs is part of a greater plan of cooperation between the EU and North African states. The EU pushes and lures third states with pressure and promises into setting up measures for preventing people from leaving the country. The establishment of the SARR in Libya is only the beginning.
The interplay of the establishment of a SARR, threatening and attacking rescue missions and exchanging surveillance data is a worrying development which has disastrous consequences for the migrants and asylum seekers affected. By shifting its human rights responsibility for carrying out migration control to Libya, where the situation for asylum seekers ought to be described as a human rights crisis, the EU avoids getting its hands dirty and may thus continue to pretend to uphold its human rights obligations.
One small glimmer of hope in this situation is the proclamation of the European Commission of 27.09.2017 that has set aside 500 million € to support resettlement efforts including support for UNHCR to establish an emergency evacuation mechanism from Libya.
This post is also published in German.