ABSTRACT
In 2014 alone over 3419 immigrants died in the Mediterranean region.
Being faced with such a humanitarian tragedy, going on for years with no real short-term prospects of improvement, the European Union generated only inadequate responses from all perspectives: not only has the management of such a complex issue been treated as a domestic affair to be faced by individual States alone (i.e. Italy) but, most importantly, the entire migratory flows have been downgraded to a “border security threat” matter, instead of being dealt with as an issue of protection of human life at sea.
This obligation is ratified by a number of international treaties, in force for decades and signed by all EU member States. In practice, although each Nation is individually bound by the obligation to protect human lives at sea, the same commitment has never been borne by the European Union nor has it been endorsed by the Council of Europe via the European Convention on Human Rights (ECHR).
In order to safeguard human life at sea, Europe is urged to transpose the above-mentioned obligation – already in force and recently recognized by the European Court of Human Rights – into its legislation via an additional Protocol to the ECHR, according to a procedure already followed in 14 other cases to further extend the scope of the Convention and cover some human rights not originally covered by the text signed in 1950. This approach would be perfectly in line with the spirit of the ECHR that, in its preamble, expressly mentions and relates to the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations in 1948.
Aligning the two legislative regimes would not create new obligations, but it would simply extend the protection of human life at sea within the jurisdiction of the European Court of Human Rights, making those States that do not rescue human lives at sea subjected to sanctions.
Based on the above remarks, it would be more appropriate to promote policies that are in line with the EU’s human and moral values by setting a technical and legislative system aimed at the creation of a European Agency for Search and Rescue at sea (EUROSAR), accompanied by a set of minimum binding technical standards and performances. This would reverse and stop the current trend whereby rescue responsibilities are assigned to authorities whose statutory remits are limited and finalized to patrol activities on air, naval and land external borders of the EU Member States.
Doing so would substantiate the award of the Nobel Peace Prize to the EU in 2012 and it would be a tangible response to the appeal launched by Pope Francis in his speech before the European Parliament in November 2014.
FROM BORDERS CONTROL TO THE PROTECTION OF HUMAN LIFE:
ALIGNING THE EU LEGISLATION TO THE UNITED NATIONS SYSTEM
In 2014 Europe and its values died 3419 times, a number equivalent to the desperate migrants abandoned to their fate in the Mediterranean Sea. Such a tragic outcome was the consequence of a short-sighted approach, based on all sorts of formal quibbles aimed at dodging human solidarity, totally overcome and replaced by fear, egoism and greed. This may explain the message delivered by Pope Francis in his words before the Strasbourg session of the European Parliament on 25 November 2014: “We cannot allow the Mediterranean to become a vast graveyard”, speaking as moral authority and not just in his religious or denominational capacities.
As foreseen by the “European Convention for the Protection of Human Rights and Fundamental Freedoms” (ECHR[1]), signed in Rome on 4 November 1950, the contracting States had explicitly reaffirmed the central role played by human rights and fundamental freedoms in the entire European structure. It is worth noticing that the EU operates comprehensive approval procedures that ensure new members are admitted only when they can demonstrate that they have stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.
The recommendation to add the protection of human life at sea to the list of fundamental rights forming the foundations of the treaty will not, of course, solve the entire issue whose causes and origins are deep, complex and historically rooted in the past. Nevertheless, any attempt to find a solution to the recurrent humanitarian tragedies in the Mediterranean Sea should be accompanied by the primary goal of fostering awareness among the EU and Council of Europe’s Member States (that apparently deem the ECHR principles as firm and well-founded as inapplicable to themselves) in order to persuade them to act as quickly as possible.
In this respect, the attempt to relegate such a humanitarian tragedy of unimaginable scale to a temporary issue affecting just one State is unacceptable. More specifically, the nature of its geographic features has accidentally forced Italy to a frontline role to face crises that have often been triggered by the adventurous behaviour by other member States. The response by the EU States must be structurally sound, matching up their standards of civilization, technology levels and in full adherence to their founding values. Therefore hypocritical and charitable concessions must be replaced by a sound and efficient organization, permanently aimed at tackling the dramatic issue of migrations caused by conflicts, famine, persecutions and suffering.
Europe should therefore create an efficient “Search and Rescue” system, although the only initiative taken so far by the EU to protect human lives at sea – i.e. a border control operation, such as Triton[2], undermined by the ambiguous and limited powers conferred by the Frontex[3] mandate – certainly does not represent the most appropriate response to face such an urgent issue, today emphasized and made manifest by the migratory flows in the Mediterranean Sea.
On the other hand, the underlying objectives of operations like Triton are unambiguous: reinforcing controls to the EU external borders in order to offset the Schengen system and to counterbalance the gradual elimination of intra-European borders’ checks. In the past years the only policies adopted by the European Union were directed and driven by border controls and security management considerations, whereas member States have been individually responsible and left alone in Search and Rescue activities at sea.
Is this layout acceptable? Can the EU response be limited to border controls? Is this legal, technical and operational scheme consistent with the spirit and the letter of the European Convention of Human Rights?
In strict adherence to the ECHR principles, the protection of human life at sea must play a dominant and primary role compared to other aspects. By doing so, the EU member States would substantiate the Nobel Peace Prize awarded to the EU in 2012 and demonstrate a real EU commitment and contribution “for over six decades to the advancement of peace and reconciliation, democracy and human rights in Europe“, as stated in the official website of the European Commission.
For years coastal States, including and most notably Italy, have been drawing the attention of the European Union on the recurring casualties at sea, on the growing number of bodies and ships lying on the European seabed and on the poor cooperation among member States on the management of “Search and Rescue” operations.
It is therefore necessary to assess, in this context, whether the EU response to the challenges of sea migratory flows is in line with the wider framework of international law applicable to the protection of fundamental human rights and, more specifically, consistent with the principles endorsed by the European Convention on Human Rights (ECHR) and with those inferred by logical interpretation.
The restrictive interpretation of the EU competence on this subject is mainly due to the absence of any specific EU legislation on Search and Rescue at sea. Though legally motivated and somehow founded, such a formalistic approach is at odds with the actual reality. As far as international law on Search and Rescue of people and/or migrants in distress at sea is concerned, the starting point is the Montego Bay Convention[4] (United Nations Convention on the Law of the Sea, UNCLOS) which represents the primary source of international law of the sea. Article 98, paragraph 1, ratifies the fundamental duty to render assistance by imposing any ship’s commanding officer to rescue any person found at sea in danger of being lost or in distress[5]. The obligation is also extended to cases where the commanding officer is informed or somehow made aware of the emergency situation. Primarily and most importantly, this rule represents a moral obligation, not just legal one, as it embodies an ancient customary principle, “firmly established in both treaty and general international law” and ratified by several treaties signed well before UNCLOS. The second paragraph of the same article determines that “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, when circumstances so require, by way of mutual regional arrangements, cooperate with neighbouring states for this purpose”.
Other international treaties are aligned with the same principles. The 1979 Hamburg Convention on Maritime Search and Rescue (SAR)[6] codifies at UN level and imposes a legal duty on anyone being able to rescue persons in distress at sea to provide assistance and to immediately alert the competent authorities.
It is worth emphasizing that the Hamburg Convention does not establish zones of national exclusive competence, as it abides by the principle of international cooperation assigning the primary duty of assistance to the State whose SAR jurisdiction covers the sea area in question. The State is also entitled to coordination rights-obligations. Nonetheless the Hamburg Convention does not preclude –and it actually urges- the intervention by third Countries in case the first one has not reacted yet or is not in a position to do so, by all means each and every time the hazardous situation is so serious and urgent that action is needed[7].
The obligation to rescue at sea, according to the mentioned Convention, is met when the persons in distress receive first aid medical care and reach a safe place. Although the definition of “safe place” is not specified nor regulated by the SAR Convention, the International Maritime Organization (IMO, an independent UN Agency active in promoting sea navigation safety) has recently set more precise criteria by defining “place of safety” as “the location where rescue operations are considered to terminate. It is also a place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met”. All States involved are compelled to identify and create “places of safety” and to co-operate with the State responsible for the SAR zone in question in order to contribute to the successful outcome of the operation.
Following the signature of the Hamburg Convention, States parties unveiled their willingness to ratify a common piece of legislation on the subject of rescue at sea and, more specifically, aimed at creating a global network of national maritime rescue coordination centres whose main task was the management of all operations and activities in interconnected SAR zones and in accordance with common procedures and rules of engagement. In other words, as of 1979, the Hamburg Convention provides the legal framework aimed at facilitating a maritime area of regional cooperation among States through the definition of specific rules and procedures signatory States must comply with in order to protect human life at sea without any discrimination.
Article 10 of the 1989 International Convention on Salvage[8], a UN binding treaty on protection of human life at sea and international cooperation, introduced the obligation on every master to render assistance to any person in danger of being lost at sea. Moreover, the Convention compels States parties to adopt the measures necessary to enforce the duties set out in the treaty.
Although the vast majority of EU member States have signed the mentioned UN treaties, thus accepting the obligations therein established, no legislation/document has yet been produced at European level on this subject. Nonetheless and despite the apparent normative vacuum, the European Court of Human Rights (ECtHR) has already issued a ruling which extends to maritime legislation the “non refoulement” principle (recognized since 1951 by article 33, paragraph 1 of the Convention relating to the Status of Refugees[9]).
This customary principle of international law, a fundamental element of the ECtHR jurisprudence, prohibits the Contracting States to undertake any actions of expulsion/refoulement of refugees to repatriate them to territories where they are persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. When the Convention was signed in 1951, the rule was already considered an extraordinary limitation on the sovereign rights of States to return foreigners to their countries of origin when they face well-founded and serious threats of persecution, violence, inhuman and degrading treatments. As far as regional organizations are concerned, the “non refoulement” principle is endorsed by article 3 of the 1950[10] European Convention on Human Rights (ECHR), as well as by article 2 concerning the right to life.
The obligations to comply with the “non refoulement” principle, its application and territorial scope have recently been reaffirmed by the European Court of Human Rights in the Hirsi[11] case.
The applicants, 11 Somali nationals and 13 Eritrean nationals, were part of a group of about 200 individuals who left Libya aboard three vessels with the aim of reaching the Italian coast. When the vessels were 35 nautical miles south of Lampedusa, they were intercepted and the occupants transferred onto Italian military Navy ships and returned to Tripoli. The applicants alleged that during that voyage the Italian authorities breached article 3 of the ECHR and article 4 of Protocol 4[12] on the prohibition of collective expulsion of aliens, as well as article 13 on the right to an effective remedy. The applicants sought further clarifications on the extraterritorial nature of the obligations arising out of the European Convention.
In its ruling, the Court held that the decisive test in establishing the responsibility of a State was not whether the person being returned was on the territory of a State but whether that person fell under the effective control and authority of that State. Therefore the Court stated that, while the notion of “jurisdiction” is –according to international law– principally territorial, it may yet become extraterritorial whenever a State, through the effective control of the territory in question, exercises in full or in part the public powers normally exercised by that Government.
In conclusion, according to this judgement, States that return or reject migrants from their territorial waters to other States’ territories may still be held liable and subjected to sanctions.
Nevertheless, it is evident that any protection inferred by interpretation is not only insufficient but it comes far too late, more specifically as a reaction to a tragic fact that has already happened and for which a remedy is sought via judicial decisions.
In order to get to the root of the problem and solve it, the main path to follow is to include the protection of human life at sea among the unalienable rights and add it to the other rights covered by the ECHR in its original text and successive protocols, as done in the past for the prohibition of imprisonment for debt (Protocol IV, article 1, 1963), the recognition of equality between spouses (Protocol VII, article 5, 1984), or the extension of prohibition of discrimination (Protocol XII, 2000).
Adding a new protocol to the text of the Convention would dissolve the discrepancy between the allocation of clear liabilities and obligations under the UN legal system and the absence of corresponding obligations under the “EU flag”[13] . In the first paragraph of its preamble, the ECHR traces its lines back to the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948. The current situation is therefore undermined by a two-tier hypocrisy that must be addressed by clearly affirming and endorsing the fundamental right to protection of life at sea, as already done for other human rights and fundamental freedoms.
In this regard, the approach adopted by the current European policies is clearly erroneous, due to its focus on external borders’ control as a means to counterbalance the elimination of intra-European borders’ checks. Naming the operation “Frontex” seems to confirm this conclusion and a very similar approach has also been adopted in the Triton operation, which is by no accident founded on territorial principles (distance from coastlines) already rejected by the ECtHR. “Triton”, presented as a replacement for “Mare Nostrum”, is speciously degraded from its beginning by the so-called Schengen approach, centred around the control of Italy’s external borders and with only marginal attention to the protection of human lives and, more generally, to search and rescue activities. On the other hand, the Italian operation “Mare Nostrum” was based on solidarity and actual protection of human life, thus seeming more consistent with the spirit and the letter of the UN legislation.
To avoid any ambiguity, it is therefore necessary to expressly establish correspondence and binding alignment between the UN and the EU systems. This may be easily achieved by adding a new protocol to the ECHR, officially acknowledging the protection of human life at sea without creating further obligations but simply recognizing and transposing at EU level the contents of obligations freely accepted and subscribed in adherence to other international treaties.
Beside any moral considerations, this would grant legal power to sanction any breaches to the principles as the ECtHR would automatically have direct jurisdiction, not just by interpretation. Indeed, according to article 19 of Convention, the ECtHR was set up “to ensure the observance of the engagements undertaken by the High Contracting Parties in the present Convention and its protocols”.
Within a renewed European law system, based on full acknowledgement of the basic humanitarian principle of protection of life at sea, the next logical and operational step could be the setting-up of a European agency for search and rescue at sea (“EUROSAR”) officially empowered with other responsibilities than borders control, namely Search and Rescue (including transfer operations to place of safety). EUROSAR should also be responsible for certifying each Member State’s capacity and capability in terms of quantity, quality and organization of assets made available (training standards, operational procedures, equipment, expeditiousness and geographical scope).
It goes without saying that EUROSAR should be accompanied by a wider and comprehensive strategy aimed at managing migratory flows in their complexity without simply considering them as a temporary problem. The system architecture should therefore assess and consider the wider spectrum of stabilization and economic development programmes in coastal States and/or in States where migratory flows originate from; agreements with coastal nations and setting-up of pre-immigration centres where all necessary identification, security, health screening as well as asylum paperwork may be properly carried out and filed.
[1] The European Convention for the Protection of Human Rights and Fundamental Freedoms (or ECHR) is an international treaty drafted by the Council of Europe to protect human rights and fundamental freedoms in Europe. Signed in Rome on 4 November 1950 by the twelve member States of the Council of Europe (Belgium, Denmark, France, Greece, Ireland, Iceland, Italy, Luxembourg, Norway, the Netherlands, Sweden, Turkey, the United Kingdom) the Convention entered into force on 3 September 1953 (in Italy on 10 October 1955). All Council of Europe member States are party to the Convention and new members are expected to ratify it at the earliest opportunity. The Convention established the European Court of Human Rights (ECtHR). The European Convention of Human Rights contains a number of rights and fundamental freedoms (right to life; prohibition of torture; prohibition of slavery and forced labour; right to liberty and security of person; right to a fair trial; rule of law; right to respect for one’s private and family life, his home and his correspondence; right to freedom of thought, conscience and religion; right to freedom of expression; right to freedom of assembly and association; right for women and men of marriageable age to marry and establish a family; right for an effective remedy before national authorities for violations of rights under the Convention; prohibition of discrimination). The Convention has several protocols, which amend the convention framework and add further rights. The contracting Parties commit themselves to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention.
[2]Triton operation – Frontex (originally named Frontex Plus) is a EU-led programme aimed at surveillance patrol on the Mediterranean external borders through the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex). As of 1 November 2014, Triton replaced “Mare Nostrum” operation in its surveillance function of migratory flows.
Mare Nostrum was launched by the Italian Government as a response to the Lampedusa catastrophe (3 October 2013) with the aim to strengthening national surveillance capabilities in the Sicily Channel, through a military and humanitarian mission finalized to the improvement of safety levels of human lives at sea and to combat illegal migratory flows.
[3] Frontex (European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union) is an EU agency headquartered in Warsaw, Poland. Its main objectives are to coordinate surveillance patrol activities on air, naval and land external borders of the EU Member States, as well as to implement agreements with neighbouring Third Countries for the repatriation of foreign nationals not admitted in the EU territory. Frontex was established by EU Council Regulation 2007/2004 dated 26 October 2004 and started to operate on 3 October 2005. It was the first EU agency to be based in one of the new EU member States
[4] Signed on 10 December 1982, in force in Italy since 12 January 1995 and transposed into national legislation by law n. 689 dated 2 December 1994 (published in Regular Supplement to the Official Journal – Gazzetta Ufficiale on 19 December 1994)
[5] More precisely, article 98 paragraph 1 reads: “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”
[6] Implemented with law n. 147 dated 3 April 1989: “Accession and implementation of the International Convention on Maritime Search and Rescue, including annex, signed in Hamburg on 27 April 1979” and ratified by Decree of the President of the Republic dated n. 662 dated 28 September 1994 concerning the application of law n. 147 dated 3 April 1989 on the “Accession and implementation of the International Convention on Maritime Search and Rescue, including annex, signed in Hamburg on 27 April 1979”. These norms assigned a primary responsibility for maritime rescue to the Ministry of Infrastructure and Transport, whilst the technical control of national SAR operations was assigned to the Italian Coast Guard.
[7] SALERNO, “L’obbligo internazionale di non-refoulement dei richiedenti asilo”, in C. Favilli (a cura di), “Procedure e garanzie del diritto di asilo”, 2011, p. 25; CAMARDA, “Tutela della vita umana in mare e difesa degli interessi dello Stato: i tentativi di immigrazione clandestina”, Rivista di diritto dell’economia, dei trasporti e dell’ambiente, V, 2007; DEN HEIJER, “Europe and Extraterritorial Asylum” ,Oxford, 2012, p. 247
[8] IMO – The International Convention on Salvage, signed in London on April 28, 1989
[9] Geneva Convention relating to the Status of Refugees
[10] Regarding the prohibition of torture: “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”
[11] ECtHR, Case of Hirsi Jamaa and others v. Italy, Application No. 27765/09, Judgment of 23 February 2012. For comments, see inter alia, M. GIUFFRE`, “Watered-Down Rights on the High Seas: Hirsi Jamaa and Others v. Italy”, in ICLQ, 2012, p.728 ss.; E. PAPASTAVRIDIS, “European Convention on Human Rights and the Law of the Sea: The Strasbourg Court in Unchartered Waters?”, in M. FITZMAURICE, P. MERKOURIS, “The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implications”, 2012, p.117 ss.; M. TONDINI, “The Legality of Intercepting Boat People Under Search and Rescue and Border Control Operations: With Reference to Recent Italian Interventions in the Mediterranean Sea and the ECtHR Decision in the Hirsi Case”, in Journal of International Maritime Law, 2012, p.59 ss.; P. DE STEFANI, “Hirsi Jamaa e altri c. Italia: illegali I respingimenti verso la Libia del 2009”, 26 febbraio 2012, in http://unipd-centrodirittiumani.it/it/schede/Hirsi-Jamaa-e-altri-c-Italia-illegali-i-respingimenti-verso-la-Libia-del-2009/249; G. PIZZOLANTE, “Diritto d’asilo e nuove esigenze di protezione internazionale nell’Unione Europea”, Cacucci, Bari, 2012, p.172 ss.; F. LENZERINI, “Il principio del non-refoulement dopo la sentenza Hirsi della Corte Europea dei diritti dell’uomo”, in Rivista di Diritto Internazionale 3/2012, p.721 ss.; M. DEN HEIJER,” Reflections on Refoulement and Collective Expulsion in the Hirsi Case”, in International Journal of Refugee Law, 2013 p.265 ss.; I. PAPANICOLOPULU, “European Convention of Human Rights – Article 3 – torture or degrading treatment – forcible repatriation of asylum seekers – collective expulsion – right to a remedy, in American Journal of International Law”, 2013, p.417 ss
[12] Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms recognizes additional rights and freedoms to the ones already covered by the Convention and the additional protocol to the Convention
[13] The EU accession to the ECHR, envisaged by article 6 of the Lisbon Treaty, is far from reality and still “work in progress”, preventing any direct application of the ECHR rights/obligations.
